Across the country, employers are facing never-before-seen economic challenges brought
on by the COVID-19 pandemic. Many companies have shut their doors, at least
temporarily, amid forced closures as state-wide and city-specific national
emergencies are declared. Business owners who are able to stay open, either by
choice or by being deemed essential, are grappling with the delicate balance of
the coronavirus health crisis and the impending coronavirus economic fallout –
and what this means for their workforce.
To deal with one piece of this issue, the president signed the COVID-19 Response Act on March 18. The bill will go into effect on April 2, 2020 and be in place until December. Employers are
bracing themselves as they are now mandated to provide paid sick and family
Let’s pause there for a moment to address the following: At Better Business Bureau
Northwest + Pacific, we understand that for most employers and business owners,
their employees come first. And truly, this law is meant to assist the many
employees and families who are sick and/or need to take care of a sick loved
one who has been diagnosed with coronavirus. It’s good-faith legislation.
For that reason, BBB NW+P encourages business owners to maintain those solid relationships
with their employees amid this ongoing crisis. Talk to them about the Response
Act; prepare answers to their questions and be empathetic when an employee
needs to use it. It is these transparent dialogues that build employer-employee
trust during trying times.
This sentiment was echoed by EY Global and American Supply Chain Operations Leader
Glenn Steinberg during a recent webinar for businesses.
“We are advising all clients to have honest and open discussions with their
customers, vendors and capital providers,” said Steinberg. “Businesses need to
make sure they are maintaining credibility with their key stakeholders.”
To do this, it is critical to understand the scope of the bill.
The bill is broken up into two parts, the Emergency Paid Sick Leave Act and the
Emergency Family and Medical Leave Expansion Act (FMLA). Employers will be
expected to comply with both however, the law is primarily geared to companies
between 50-500 employees. We will get into more on that.
The Emergency Paid Sick Leave Act
This act allows employees to take sick-time if they are diagnosed or
self-quarantined, awaiting medical diagnosis and/or are caring for an
individual who is under an isolation or quarantine order. Before being passed,
this bill was edited to ensure employees could take time off not just for a
“family member” but for an individual they need to care for.
Employers with fewer than 500 employees must provide full-time employees with 80 hours of
paid sick leave at the employee’s regular rate. If you have part-time
employees, you are still expected to also provide them with sick leave.
Part-time employees are to be paid based on the average number of hours the
employee worked for the six months prior to taking the leave; if the employee
has worked less than six months, they are entitled to time-off equal to the
average number of hours they would have been scheduled for during a two-week
Any individual, full-time employee who has been with their business for at least 30
days before their first day of leave may take up to 12 weeks of job protected
leave. This is true if the employee also uses telework – same rules apply. There
is now only one blanket qualification for an employee to meet eligibility: to
care for their child (under 18) if the child’s school is closed, day-care is
closed or the childcare providers is unavailable due to a health emergency.
Once again, part-time employees are still allowed to use FMLA and rates should
be calculated the same way they are calculated in the Paid Sick Leave Act.
With the FMLA there are very important caveats for businesses with fewer than 50
employees. At BBB, we know the bulk of our customers and accredited businesses
are those small businesses.
Businesses with less than 50 employees may be exempt by the Secretary of Labor if the
required leave would “jeopardize the viability of their businesses.” There have
not been many details released about this potential exemption, but BBB will be
monitoring the developments closely.
“There is no word yet on how this will be shown,” said Lilia Tyrrell, lawyer at
Bozeman, Montana-based, Kasting, Kauffman and Mersen. “It is important during
all of this to maintain good records…of the leave you provide and if you can’t,
of your finances during this time.”
Also, important is that employers with 25 employees or more must return any employee
who has taken Emergency FMLA to the same or an equivalent position upon
returning to work. For business with less than 25 employees, again there is an
exclusion available: Employers will not be required to return the employee to
the same position if that position no longer exists due to an economic downturn
or other circumstances caused by a public health emergency during the period of
the Emergency FMLA.
“To alleviate some burden, employers will receive a tax credit on [their] quarterly
payroll tax for providing the required leave,” Tyrrell added.
At Better Business Bureau, we understand there is hardship in trying to comply
with all of these new laws and regulations. But, much like we outline in our
Eight Standards of Trust, honoring promises is a critical piece of being a
business owner and caring employer. Much like you’d honor promises in a normal
work environment, you should honor promises to your employees relevant to fair
labor standards, even amid crisis.
What can you, as a business owner, be doing right now?
First, BBB and EY both advise to be realistic in all communications. Don’t be overly
optimistic with your employees or stakeholders if you do have bad news. Simply
Second, EY stated the following: “Document everything and maintain records because
there is always an undercurrent with the government to make sure employers and
employees are not taking advantage of government assistance.”
For more answers to common questions around terminating employees, finding employee
coverage and affordability, check out this article.
For a comprehensive look at what BBB is doing, head to Trying Times