Navigating Covid-19 employment decisions.

Layoff vs. paid time off

As you all know, the COVID 19 Pandemic and the Governmental Actions in response have created very challenging business conditions. Employers are facing difficult decisions trying to balance taking care of their employees while ensuring the continued viability of their companies during this crisis and beyond.

There are a number of state and federal actions that have been taken to try to mitigate the impact. We are sending this letter to advise you about some of the current legislation and tools to help you evaluate your options.

One of the most challenging questions businesses face is whether to put employees on Standby (temporarily lay them off) or allow employees to use Paid Time Off to continue to draw pay.

Below we have outlined some of the current acts that may affect your decision.

Washington State Employment Security – Unemployment Benefits

The Washington State Employment Security Department is offering unemployment benefits to employees on standby or who have had a reduction in work (partial unemployment). An employee on standby is able to collect benefits while remaining with their employer and not actively seeking other jobs. Under the COVID-19 Emergency Orders, the normal one week waiting period has been waived. This may be an option for employers who are temporarily closed but need to retain workers. Please visit https://esd.wa.gov/newsroom/covid-19 for more information.

Under certain circumstances, employers have to provide a pre layoff notice under the WARN act. Typically this is for employers with more than 100 employees who lay off 50 or more employees within a certain timeframe.

You can use the Department of Labor WARN Advisor to evaluate whether you need to provide a notice.

Federal Families First Coronavirus Response Act (FFCRA) | Businesses under 500 employees Emergency Paid Sick Leave and Emergency FMLA Expansion

On April 1, 2020 the Emergency Acts will take effect and applies to all private businesses with less than 500 employees and public employers with at least 1 employee. These temporary changes to two existing laws make employees affected by COVID- 19 eligible for additional benefits. These benefits are paid by the employer who can then claim tax credits to reimburse those expenses.

The poster that employers are required to post can be found Here.

Resources:

The Department of Labor has provided an explanation of the changes. https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

The full text of the legislation can be found at: https://www.govtrack.us/congress/bills/116/hr6201/text.

Answers to Frequently Asked Questions can be accessed at:  https://www.dol.gov/agencies/whd/pandemic/ffcra-questions 

It is important to note that if Employees are laid off, it appears that they do not qualify for these emergency provisions.

In applying these various laws, it appears that if a business remains open and does not lay off workers, then as of April 1, eligible employees will be able to take two weeks of paid sick leave. The rate of pay will depend on the reason that leave is being taken.

After the first two weeks, if employees are not able to work because they are caring for their child under 18 years of age whose school or day care has been closed, then they will be entitled to up to 10 weeks of partial pay.

There are obviously a lot of variables that may affect your individual situation. Wolff, Hislop & Crockett recognizes that these past several weeks have raised more questions than answers. While we cannot predict when the coronavirus will be contained, we want to reassure you that we are here to provide any assistance you may need during this time of uncertainty. Our office is “virtually open,” with our attorneys and staff working remotely. You can still reach us through our main office line: Call (509)927-9700.

If you have any questions or concerns, or need assistance in pursuing one of the available aid resources, you should contact a business or employment law attorney in your state.

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