We have been inundated with requests by our business clients about their legal obligations when responding to COVID-19. Here are a few of the most common questions (and their answers!) that we’ve seen:
Closure of all businesses except those that are “life-sustaining”
In its earlier guidance, Pennsylvania has “strongly urged” non-essential businesses throughout the state to close for at least 14 days. But the essential vs. non-essential debate was moot before it ever really got started. Now the triggering standard is whether your business is “life-sustaining.” Governor Wolf’s office has provided a detailed breakdown, industry by industry, of what may be physically open at this point in time.
Enforcement of these measures has been taken seriously throughout the area thus far. We have already had employers in the life-sustaining categories report their employees were questioned by law enforcement on the way to work. So for now, we need to hunker down and work remotely if we are not an authorized business.
Still not sure? Any business can ask for clarification at email@example.com. And businesses can seek waivers (although in our experience that are not generally being granted) by emailing RAfirstname.lastname@example.org.
Managing employees working remotely
Many employers, our firm included, are looking at ways to have some or all of their employees work remotely. Here are a few reminders when your employees are working from home:
- Hourly employees must be paid for their hours of work consistent with FLSA standards, including overtime if they are working over 10 hours in a day or 40 hours in a week.
- Have clear expectations, and make sure they are followed, for meal breaks and other downtime to avoid confusion about the hours worked.
- Be careful about asking your employees to be available at any time of the day or night when working from home. While they might be able to do so, you may be turning them into on-call workers that require additional compensation for that time.
Many employers are finding it necessary to layoff some or all of their staff. Either because remote work is not available, or simply because there is no work to be done (like a restaurant’s waitstaff). Absent some contractual relationship, by default in Pennsylvania all employment is at-will meaning that employers can terminate an employment relationship at any time. But be careful of anti-discrimination laws that still apply even during the COVID-19 shut downs. We recommend checking out the Equal Employment Opportunity Commission’s guidance for any type of layoffs (also known as reductions in force).
One particular landmine to watch for is if the criteria used results in the disproportionate dismissal of a protected classification. For example, if you layoff everyone who does not have the tech savvy to work remotely, make sure the practical impact is not that you keep all the younger employees and fire the older ones. Even if you were trying to apply a non-discriminatory basis (i.e. technology skills), you can find yourself in hot water if that results in a disparate impact against a protected class of people
Pennsylvania has expanded its unemployment compensation benefits to help offset those impacted by COVID-19. Employees who have been laid off and those with a reduction in hours may be qualified for unemployment compensation benefits. We recommend sharing this link with your employees to help mitigate the impacts on your workforce.
Federal legislative action
Finally, as of the time of this blog post, Congress has already adopted the Families First Coronavirus Response Act. The Act expands FMLA leave to cover individuals who need to stay home because their child’s or children’s daycare or school is closed. It also provides up to two weeks of emergency leave for individuals diagnosed with or quarantined because of COVID-19.
Additional changes are also continuing to evolve, including a federal stimulus package and a number of state-backed loan opportunities.
Want even more information? Here are some of the best links we’ve found:
- The Lancaster County Chamber of Commerce and Industry maintains a great COVID-19 website full of useful links for Pennsylvania businesses.
- The federal Department of Labor’s website continues to roll out guidance on the Families First Act.
- Information about Pennsylvania’s Unemployment Compensation program for employees with reduced or eliminated hours can be found on its own page on Pennsylvania’s website.
If you have questions about any of the above, please reach out to us. Some of us may be working remotely, but we are still here to help. We remain available by email, phone, video conference, and carrier pigeon (okay maybe not that last one).