By Christopher J. Graham and Joseph P. Kelly

We previously posted here about the required posting for employers with less than 500 employees under the Families First Coronavirus Response Act.

The Department of Labor issued a corrected poster (link here) to address an error in the original poster.

An employer meets the “posting” requirement by posting the poster “in a conspicuous place on its premises” or “by emailing or direct mailing this notice to employees, or posting this notice on an employee information internal or external website.” As a practical matter, the most efficient way for employers to meet the “posting” requirement likely is to email the corrected poster to its employees.

Remember – the “posting” deadline is April 1 and all employers with less than 500 employees must comply with the posting requirement!

Notwithstanding the “posting” requirement, for most employers, the new law will make a difference only if it has employees caring for children due to a school closure resulting from coronavirus and who don’t telework or if an employer has employees who become ill or quarantined because of coronavirus or care for others with coronavirus.

The Department of Labor issued a guidance (Fact Sheet for Employers, Fast Sheet for Employees, and Questions and Answers) that contain more information for affected employers.

By Christopher J. Graham and Joseph P. Kelly

Every “small” business (less than 500 employees) should give serious consideration to taking advantage of SBA guaranteed loans under the Coronavirus Aid, Relief and Economic Security (CARES) Act, whether you’re an entity employing many people or even just a sole proprietor or independent contractor.

The “forgiveness” aspect of the loan is attractive. Subject to certain documentation requirements, you won’t have to repay the loan to the extent you use loan proceeds for costs paid or incurred – during the 8-week period starting with loan origination – for “payroll costs,” interest on “covered mortgage obligations “and payments on any “covered rent obligation” or “covered utility obligation” – as those terms are defined in the Act.

The 1% interest rate is attractive and so is deferral of payments for at least 6 months, or up to one year; and there’s no personal guarantee or collateral requirement, at least to start.

Even self-employed persons may borrow funds to cover “payroll costs” and “covered” “rent,” “utility,” and mortgage interest payments – and then, subject to the documentation requirements, obtain loan forgiveness for amounts paid to cover those costs.

If you obtain this sort of loan and pursue loan forgiveness, it will be critical to comply with the documentation requirements that are a condition for loan forgiveness.

You should consult with your banker for details and presumably the SBA will have more information soon. We would expect the SBA to post details on the loan process soon.

Remember, if you already have an SBA loan, the Act provides you relief as well. There is a separate section addressing those existing loans.

By Christopher J. Graham and Joseph P. Kelly

UPDATE (3/31/20 1:00 p.m. CST): The DOL issued a new poster and we blogged about it here.

Here’s a link to the poster all employers with less than 500 employees are required to “post” under the Familes First Coronavirus Response Act.

For most employers, the new law will make a difference only if it has employees caring for children due to a school closure resulting from coronavirus and who don’t telework. The other way it will apply is if an employer has employees who become ill or quarantined because of coronavirus or care for others with coronavirus.

As for the details of the “posting” requirement including electronic posting, see this link to the DOL.

By Christopher J. Graham and Joseph P. Kelly

The US Department of Labor just published FAQs answering many questions about the details of the new Families First Coronavirus Response Act and expanded Family Medical Leave Act.

As a general matter, unless you have Covid-19-related sick or quarantined employees or employees caring for Covid-19-related sick or quarantined family members, the main way it would affect you is if you have employees who are home and can’t telework because of a Covid-19 related school closure or closure of a child care (paid) provider.

There’s now greater clarity about many issues, such as permissible documentation requirements; intermittent leave, whether from teleworking or otherwise; and calculating pay for part and full-time workers.

Regarding whether an employee is entitled to paid leave if they are unable to work because of a State stay-at-home order, here’s what the DOL says:

If my employer closes my worksite on or after April 1, 2020 (the effective date of the FFCRA), but tells me that it will reopen at some time in the future, can I receive paid sick leave or expanded family and medical leave?

No. If, prior to the FFCRA’s effective date, your employer sent you home and stops paying you because it does not have work for you to do, you will not get paid sick leave or expanded family and medical leave but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it is required to close pursuant to a Federal, State, or local directive. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx. It should be noted, however, that if your employer is paying you pursuant to a paid leave policy or State or local requirements, you are not eligible for unemployment insurance.

The same would hold true if the business was closed before April 1 and remained so afterwards.

In a related vein, the DOL says:

If my employer reduces my scheduled work hours, can I use paid sick leave or expanded family and medical leave for the hours that I am no longer scheduled to work?

No. If your employer reduces your work hours because it does not have work for you to perform, you may not use paid sick leave or expanded family and medical leave for the hours that you are no longer scheduled to work. This is because you are not prevented from working those hours due to a COVID-19 qualifying reason, even if your reduction in hours was somehow related to COVID-19.

You may, however, take paid sick leave or expanded family and medical leave if a COVID-19 qualifying reason prevents you from working your full schedule. If you do, the amount of leave to which you are entitled is computed based on your work schedule before it was reduced[.]

Remember though, that if you are required to provide paid family leave, there is a tax credit available to reimburse you for the payments – a credit against the employer share of certain payroll taxes. See IRS site for details.