Immediate Employment Law Considerations as it Relates to the Coronavirus

Our state and federal governments have taken swift action in addressing the pandemic of COVID-19 facing our great nation. These drastic measures taken by both our state and federal governments are intended to immediately address the needs of both employers and employees as it relates to several employment laws and grant the much needed economic relief that is required in businesses across the nation and specifically our state. The below is a summary of the swift action that has been taken recently:

On March 16, 2020, Governor Tim Walz issued Emergency Executive Order 20-05 entitled “Providing Immediate Relief to Employers and Unemployed Workers During the COVID-19 Peacetime Emergency”. This Executive Order suspends several statutory requirements normally required of applicants to receive unemployment benefits including the following: 1) suspending the non-payable week requirement allowing workers to become eligible for unemployment benefits as quickly as possible; 2) amending the definition of “suitable employment” to not include employment that puts the health and safety of the applicant at risk or employment that puts the health and safety of other workers and the general public at risk; 3) ensuring that unemployment benefits are available for workers who are not able to work directly or indirectly as a result of COVID-19 as set forth in his Executive Order; and 4) ordering that unemployment benefits paid under this Executive Order not be used in computing the future unemployment tax rate of a taxpaying employer. This Executive Order is intended to provide immediate relief for both employees and employers. Employees desiring to apply for unemployment benefits are encouraged to do so on-line and not by telephone.

The Equal Employment Opportunity Commission (EEOC) published on its website new guidelines on March 18, 2020, entitled “What you should know about the ADA, the Rehabilitation Act, and COVID-19.” This guidance from the EEOC sets forth parameters that employers may follow which deviate from normal statutory requirements of addressing what medical information employers may require of employees to provide without discriminating against workers based upon their disability status in violation of the ADA. In an unprecedented fashion, the EEOC states that since COVID-19 is an international pandemic, employers may lawfully measure employees’ body temperatures without running afoul of the ADA. The ADA allows employers to require employees who become ill with symptoms of COVID-19 to leave the workplace which is the recommendation of the CDC. An employer may also screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job. It is anticipated that the EEOC will continue to update its guidance with additional information in the weeks to come.

On March 18, 2020, the Families First Coronavirus Response Act (Act) became federal law which goes into effect on April 1, 2020. This Act applies to all government employers and private employers with fewer than 500 employees; however, the Secretary of Labor is empowered to issue regulations excluding businesses with fewer than 50 employees from certain requirements of the Act if providing certain specifically defined benefits would jeopardize the viability of the business. Until the U.S. Department of Labor provides the expected additional guidance and information as to the potential exclusions under the Act, employers would be prudent to pause and not make definitive determinations as to employees who may be disqualified from taking emergency paid sick time or emergency FMLA leave. In addition, it is unlawful to discriminate or retaliate against eligible employees under the Act. Employers are required to post a notice about the Act and inform their employees through their employee handbooks and through other reasonable measures of their rights under the Act. The U.S. Department of Labor is expected to make a notice available for businesses to post.

The U.S. Department of the Treasury, IRS, and the U.S. Department of Labor announced on March 20, 2020, that small and midsize employers can begin taking advantage of two new refundable payroll tax credits, designed to immediately and fully reimburse them, dollar-for-dollar, for the cost of providing Coronavirus-related leave to their employees under the Families First Coronavirus Response Act. Employers with fewer than 50 employees are eligible for an exemption from the requirements to provide leave to care for a child whose school is closed or child care is unavailable in cases where the viability of the business is threatened. To take immediate advantage of the paid leave credits, businesses can retain and access funds that they would otherwise pay to the IRS in payroll taxes. If those amounts are not sufficient to cover the cost of paid leave, employers can seek an expedited advance from the IRS by submitting a streamlined claim form that will be released in the coming weeks, according to the U.S. Department of Labor.

For more information, contact Employment Law attorney, Kelly Dohm at 952.442.7724