The Families First Coronavirus Relief Act’s (“FFCRA”) swift enactment left employers scrambling to interpret its provisions.  Fortunately, the Department of Labor has issued temporary regulations that resolve many common questions and scenarios.  Final regulations are expected on April 6th.

The FFCRA provides two types of paid leave: the Emergency Paid Sick Leave Act (“EPSLA”) and Emergency Family and Medical Leave Expansion Act (“EFMLEA”).  You can read about the basic provisions of FFCRA here.  This post summarizes some critical issues concerning FFCRA implementation.

Continue Reading DOL Issues Temporary Regulations Detailing FFCRA Paid Leave Rules

The federal Department of Labor (DOL) continues to update its Families First Coronavirus Response Act (FFCRA) FAQ leading up to the April 1, 2020 implementation. Over the past week, the DOL has supplemented the FFCRA FAQ several times to provide guidance and clarifications concerning lingering questions. Some of the recent clarifications we find helpful are below.

Continue Reading Department of Labor Continues to Update FAQ Concerning Families First Coronavirus Response Act

On Wednesday night, the Senate passed unanimously (96-0) a $2 trillion emergency relief bill. The measure would constitute the largest economic stimulus package in U.S. history. Key provisions include:

Continue Reading Senate Passes Massive Coronavirus Aid Package; Would Provide Financial Relief for Employers and Employees

Updating our prior Families First Coronavirus Response Act (FFCRA) guidance, today the Department of Labor issued a model poster concerning FFCRA rights and responsibilities. The poster is accessible at: https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf

The FFCRA requires covered employers post in a conspicuous place on its premises a notice of FFCRA requirements. For covered employers with remote work forces, we recommend emailing the DOL notice to employees, posting on an intranet, or otherwise disseminating via means accessible to all employees.

 

Yesterday, the Department of Labor issued preliminary guidance concerning the implementation of the Families First Coronavirus Response Act (the “FFCRA”), which was passed just six days ago.  The guidance provides some clarity on a few key issues:

Continue Reading Department of Labor Releases Preliminary Guidance Concerning the Families First Coronavirus Response Act

Last week, President Trump signed into law the Families First Coronavirus Response Act (“FFCRA”), which requires employers with fewer than 500 employees to provide employees expanded family and medical leave and paid sick leave benefits for Coronavirus-related reasons.  The FFCRA creates for certain private employers a refundable paid sick leave credit and paid child care leave credit that are intended to immediately and fully reimburse these employers, dollar-for-dollar, for the cost of providing Coronavirus-related leave to their employees.

Continue Reading IRS and DOL Preview How Employers Can Recoup Costs of Providing Paid Leave to Employees for Coronavirus-Related Absences

Effective at noon on March 24, 2020, Massachusetts will become the latest state to close non-essential businesses in the effort to slow the spread of COVID-19.  As covered here previously, Connecticut and New York issued substantially similar executive orders in days immediately prior.  The Massachusetts order identifies “essential” businesses, orders the closing of non-essential businesses and organizations, and prohibits gatherings of more than ten people, with limited exceptions.  The order will remain in effect until April 7, 2020, but will likely be extended at a later date.

Massachusetts essential services are comprehensively set forth here.  The order also affirmatively encourages non-essential business to “continue operations remotely” where possible, and specifically encourages food and beverage establishments to offer take-out and delivery services, so long as social distancing can be maintained.

The essential services guidance is subject to amendment, but appears to be much more detailed than New York or Connecticut’s materially substantially similar orders.  Each state’s respective order appears to be based upon advisory federal guidance.  We urge you to review the Massachusetts list in full to assess whether your services, or the services you are seeking, are essential.  Several categories of services are deemed essential and summarized as follows:

  • Healthcare, Public Health, and Human Services: In addition to the front-line medical personnel battling COVID-19, the order explicitly deems essential many classes of services that support them, including but not limited to, blood donors, hospital administrators and support staff, workers in non-COVID-19-related in-patient and out-patient facilities, pharmacy employees, workers who support economically disadvantaged populations, and mortuary workers.
  • Law Enforcement, Public Safety, and First Responders: Police and Fire Departments, Emergency Medical Technicians, 911 operators, and various employees that support those functions.
  • Food and Agriculture: In addition to employees at supermarkets and restaurants, all manner of workers who impact the food supply chain, including food manufacturers, farm workers, workers supporting seafood and fishermen, food testing lab employees, and animal agriculture employees, are essential.
  • Energy: Workers related to electricity, petroleum, natural and propane gas, and steam are deemed essential.
  • Transportation and Logistics: Services related to ground, air, rail, and water transit are essential. Amongst the essential explicitly included are (1) rental car operators, and (2) automotive repair shops, (3) mass transit workers, and (4) public and private postal and shipping workers.
  • Public Works: Includes workers that support public works systems including roads, bridge and sewers, as well as “plumbers, electricians, exterminators, inspectors and other service providers” that may fix problems at your residence.
  • Communications: Employees that support communications infrastructure, the media, and customer support staff are amongst the essential.
  • Information Technology: Workers who provide public or private information technology services, and support staff required for them, including janitorial personnel, are essential.
  • Other Community Based Essential Functions and Government Operations: This broad category contains varied services including weather forecasters, educators, hotel workers, critical government workers, workers in sober homes, pet supply stores, laundromats, and places of worship. If you do not see your business function listed elsewhere, check this category carefully.
  • Critical Manufacturing: “Workers necessary for the manufacturing of materials and products needed for medical supply chains including personal protective equipment and hygiene products, transportation, energy, communications, food and agriculture, chemical manufacturing, nuclear facilities, the operation of dams, water and wastewater treatment, emergency services, and the defense industrial base.”
  • Hazardous Materials: Nuclear facility and other hazardous materials workers are essential.
  • Financial Services: Workers essential to financial systems and consumer access to money.
  • Chemical: Workers supporting the chemical and industrial gas supply chains.
  • Defense Industrial Base: Workers who support the federal government and military.

If not listed, business may request an essential designation through the following link: https://www.mass.gov/forms/essential-service-designation-request. Related questions can be submitted to covid19.biz@mass.gov.

Murtha attorneys are available (remotely) to help you and your business make sense of Massachusetts’ guidance during these trying times.

On Sunday March 22, 2020, the Connecticut Department of Economic and Community Development released “legally binding guidance” concerning which businesses are “essential” for purposes of Governor Lamont’s March 20, 2020, Executive Order 7H (directing all businesses and nonprofit entities to utilize, to the maximum extent possible, any telecommuting or work from home procedures that they can safely employ). The full text of the DECD guidance is available here: Business Exemptions for Coronavirus – Executive Order 7H.

 

If you are assessing the “essential” nature of your business, read the guidance carefully before seeking an “essential” designation from the state. Likely anticipating a deluge of requests, the DECD directs “requests by businesses to be designated an essential function as described below, should ONLY be made if they are NOT covered by the following guidance.”  If unclear whether your business is “essential” after reviewing all available guidance and discussing with counsel, businesses may seek an “essential” designation at this link: https://portal.ct.gov/DECD/Content/Coronavirus-for-Businesses/Essential-Business-Designation-Form.

 

Notable updated rules and clarifications include:

  • Essential retailers may be staffed on-site, provided that they may only offer remote ordering (e.g. phone, internet, mail, dropbox) and curb-side pick-up or delivery.
  • Non-essential businesses and nonprofits to allow staff or third parties on site to the minimum extent necessary to provide security, maintenance and receipt of mail and packages.
  • Any business that only has a single occupant/employee (e.g. attendant) is deemed exempt and need not submit a request to be designated as an Essential Business.
  • The guidance only applies to business and non-profit entities. It does not apply to any state or local government agencies, quasi-public agencies, political subdivisions, or other entities that do not constitute businesses or nonprofits.

 

The DECD makes clear that the “guidelines set forth here apply to places of business. Non-essential businesses may continue activities that are conducted off-site (e.g. a customer’s home) and/or by telecommuting or working from home.” Another notable clarification is that the guidance applies to each business location individually, assumedly meaning entities may assess each physical business location separately in determining whether any exceptions apply.

 

The balance of the guidance provides:

For purposes of Executive Order 7H, “essential business,” means:

  1. Essential workers in the 16 Critical Infrastructure Sectors, as defined by the federal Department of Homeland Security unless otherwise addressed in a prior or future executive order pertaining to the existing declared public health and civil preparedness emergency.

 

  1. Healthcare and related operations including:
  • biotechnology therapies
  • consumer health products and services
  • doctor and dentist offices
  • elder care, including adult day care
  • health care plans and health care data
  • home health care workers or aides
  • hospitals
  • manufacturing, distributing, warehousing, and supplying of pharmaceuticals, including research and development
  • medical marijuana dispensaries and producers
  • medical supplies and equipment providers, including devices, diagnostics, services, and any other healthcare related supplies or services
  • medical wholesale and distribution
  • nursing homes, or residential health care facilities or congregate care facilities
  • pharmacies
  • physical therapy and chiropractic offices
  • research and laboratory services, including testing and treatment of COVID-19
  • veterinary and animal health services
  • walk-in-care health facilities

 

  1. Infrastructure including:
  • airports/airlines
  • commercial trucking
  • dam maintenance and support
  • education-related functions at the primary, secondary, or higher education level to provide support for students, including distribution of meals or faculty conducting e-learning
  • hotels and other places of accommodation
  • water and wastewater operations, systems, and businesses
  • telecommunications and data centers
  • transportation infrastructure including bus, rail, for-hire vehicles and vehicle rentals, and garages
  • utilities including power generation, fuel supply, and transmission

 

  1. All manufacturing and corresponding supply chains, including aerospace, agriculture, and related support businesses

 

  1. Retail including:
  • appliances, electronics, computers, and telecom equipment
  • big-box stores or wholesale clubs, provided they also sell groceries, consumer health products, or operate a pharmacy
  • convenience stores
  • gas stations
  • grocery stores including all food and beverage retailers
  • guns and ammunition
  • hardware, paint, and building material stores, including home appliance sales/repair
  • liquor/package stores and manufacturer permittees
  • pharmacies
  • pet and pet supply stores

 

  1. Food and agriculture, including:
  • farms and farmer’s markets
  • food manufacturing, processing, storage, and distribution facilities
  • nurseries, garden centers, and agriculture supply stores
  • restaurants/bars (provided compliance with all applicable executive orders is maintained)

 

  1. Services including:
  • accounting and payroll services
  • animal shelters or animal care or management, including boarding, grooming, pet walking and pet sitting
  • auto supply, repair, towing, and service, including roadside assistance
  • bicycle repair and service
  • building cleaning and maintenance
  • child care services
  • critical operations support for financial institutions
  • financial advisors
  • financial institutions, including banks, credit unions, and check cashing services
  • funeral homes, crematoriums, and cemeteries
  • insurance companies
  • laundromats/dry cleaning
  • legal and accounting services
  • mail and shipping services
  • marinas and marine repair and service
  • news and media
  • real estate transactions and related services, including residential leasing and renting
  • religious services (subject to Executive Order 7D limiting gatherings to 50 people)
  • storage for Essential Businesses
  • trash and recycling collection, hauling, and processing
  • warehouse/distribution, shipping, and fulfillment

 

  1. Providers of basic necessities to economically disadvantaged populations including:
  • food banks
  • homeless shelters and congregate care facilities
  • human services providers whose function includes the direct care of patients in state-licensed or funded voluntary programs; the care, protection, custody and oversight of individuals both in the community and in state-licensed residential facilities; those operating community shelters and other critical human services agencies providing direct care or support social service agencies

 

  1. Construction including:
  • all skilled trades such as electricians, HVAC, and plumbers
  • general construction, both commercial and residential
  • other related construction firms and professionals for essential infrastructure or for emergency repair and safety purposes
  • planning, engineering, design, bridge inspection, and other construction support activities

 

  1. Services necessary to maintain the safety, sanitation and essential operations of all residences and other buildings (including services necessary to secure and maintain non-essential workplaces):
  • building cleaners or janitors
  • building code enforcement
  • disinfection
  • doormen
  • emergency management and response
  • fire prevention and response
  • general maintenance whether employed by the entity directly or a vendor
  • home-related services, including real estate transactions, closings, appraisals, and moving services
  • landscaping services
  • law enforcement
  • outdoor maintenance, including pool service
  • pest control services
  • security and maintenance, including steps reasonably necessary to secure and maintain non-essential businesses
  • state marshals

 

  1. Vendors that provide essential services or products, including logistics and technology support, child care, and services needed to ensure the continuing operation of government agencies and provide for the health, safety and welfare of the public including:
  • billboard leasing and maintenance
  • child care services
  • essential government services
  • government owned or leased buildings
  • information technology and information security
  • logistics
  • technology support

 

  1. Defense
  • defense and national security-related business and operations supporting the U.S. Government or a contractor to the US government

On Friday, March 20, Governor Lamont issued an executive order requiring non-essential workers to stay home.  All workplaces have been ordered to utilize telecommuting, where possible.  Executive Order 7H represents the most drastic step yet in Connecticut’s battle against COVID-19, and followed mere hours after Governor Cuomo announced similar measures in New York.  The order is effective as of Monday, March 23 at 8pm, and runs through April 22 – a date likely to be extended.

What workers are “essential” in the battle against COVID-19?  While the Department of Economic and Community Development is set to release a legally binding list by Sunday at 8pm, the order provides provisional guidance as follows:

  • essential health care operations including hospitals, clinics, dentists, pharmacies, elder care and home health care workers,
  • companies and institutions involved in the research and development, manufacture, distribution, warehousing, and supplying of pharmaceuticals, biotechnology therapies, health care data, consumer health products, medical devices, diagnostics, equipment, services and any other healthcare related supplies or services;
  • essential infrastructure, including utilities, wastewater and drinking water, telecommunications, airports and transportation infrastructure;
  • manufacturing, including food processing, pharmaceuticals, and industries supporting the essential services required to meet national security commitments to the federal government and U.S. Military;
  • the defense industrial base, including aerospace, mechanical and software engineers, manufacturing/production workers, aircraft and weapon system mechanics and maintainers;
  • essential retail, including grocery stores and big-box stores or wholesale clubs, provided they also sell groceries;
  • pharmacies, gas stations and convenience stores; food and beverage retailers (including liquor/package stores and manufacturer permittees) and restaurants, provided they comply with previous and future executive orders issued during the existing declared public health and civil preparedness emergency;
  • essential services including trash and recycling collection, hauling, and processing, mail and shipping services;
  • news media;
  • legal and accounting services;
  • banks, insurance companies, check cashing services, and other financial institutions;
  • providers of basic necessities to economically disadvantaged populations;
  • construction;
  • vendors of essential services and goods necessary to maintain the safety, sanitation and essential operations of residences or other essential businesses, including pest control and landscaping services;
  • vendors that provide essential services or products, including logistics and technology support, child care and services needed to ensure the continuing operation of government agencies and the provision of goods, services or functions necessary for the health, safety and welfare of the public.

Other businesses may apply to the Department of Economic and Community Development for “essential” status.

Finally, the order forbids local officials from issuing any “shelter in place” or other travel restriction order without written approval from the Department of Emergency Services and Public Protection.  That provision may seek to preempt a situation similar to New York’s public back and forth between Governor Cuomo and New York City Mayor Bill de Blasio.

Murtha attorneys are available to discuss the “essential” nature of your business under this most recent executive order.  Whether you are working from home or the office, we encourage you to follow official guidance, and stay safe.

 

 

 

UPDATE: Executive Order 202.8 can be read here.  In addition to closing workplaces to non-essential employees, the order:

  • Tolls state court litigation deadlines until April 19, 2020
  • Suspends Department of Motor Vehicles related deadlines until April 19, 2020
  • Tolls shareholder meeting-related deadlines until April 19, 2020
  • Tolls residential and commercial eviction enforcement for 90 days
  • Abates late fines and penalties related to filings due on or before March 20.

At a press conference this morning, Governor Andrew Cuomo announced a forthcoming executive order placing further restrictions on New Yorkers’ daily life.  The order will be effective as of Sunday.  Per the New York Times, relevant employment-related provisions include:

Continue Reading Governor Cuomo to Issue Executive Order Requiring New York Workers to Stay Home