Bankovich and Pauli: COVID-19 FAQs for businesses, employers, organizations

By Candace Bankovich and Celia Pauli

During this period of uncertainty and rapidly evolving information, it is important for businesses, organizations and employers to stay up to date. Below are some frequently asked questions and answers with links to resources.

On March 23, Indiana Gov. Eric Holcomb issued a statewide “stay at home” executive order effective from 11:59 p.m. March 24 until 11:59 p.m. April 6, unless otherwise altered. Any nonessential business and operations must cease, and only essential businesses and operations are permitted.

Q: What are essential businesses and operations?

A: These include:

• Workers identified by the U.S. Department of Homeland Security, Cybersecurity & Infrastructure Security Agency.

• Stores that sell groceries and medicine

• Food, beverage and agriculture

• Charitable and social services

• Religious entities

• Media

• Gas stations and businesses needed for transportation

• Financial and insurance institutions

• Hardware and supply stores

• Critical trades, such as electricians, plumbers, HVAC, security staff, etc.

• Mail, post, shipping, logistics, delivery and pickup services

• Education institutions

• Laundry services

• Restaurants for consumption off-premises

• Supplies to work from home

• Supplies for essential businesses and operations , such as IT and telecommunication equipment, electronics, etc.

• Transportation

• Home-based care and services

• Residential facilities and shelters

• Professional services such as lawyers, accountants, realtors and insurance services

• Manufacture, distribution and supply chain for critical products and industries, such as health care, technology, chemicals, agriculture, national defense, communication, etc.

• Critical labor union functions

• Hotels and motels

• Funeral services

Q: If my business is an “essential business,” do I proceed with “business as usual?”

A: No, there are other requirements under the executive order to prevent the spread of COVID-19. Employers should take the following precautions:

• Provide hand sanitizer to employees

• Provide disposable wipes to employees to wipe down workspaces, machinery, equipment, etc.

• Frequently perform workplace cleaning of office spaces, door handles, doorknobs, etc.

• Require 6 feet between employees

• Require employees who have symptoms to stay home

• Certain industries/business are required to have separate operating hours for customers who are elderly and vulnerable

• Allow as many employees as possible to telework

• Inform employees of COVID-19 symptoms, which include fever, cough, shortness of breath, runny nose or other cold or flu-like symptoms

• Encourage employees to frequently wash hands and exercise cough and sneeze etiquette, per the Centers for Disease Control and Prevention.

On April 1, the federal Families First Coronavirus Response Act (“FFCRA”) will take effect across the nation. The FFCRA provides for employees with expanded family and medical leave for specified reasons related to COVID-19. Information is still being developed to help answer questions and interpret FFCRA. Here is a link to a Department of Labor publication that provides additional resources and links to posters.

Q: I have a small business; do I have to comply with the new Families First Coronavirus Response Act?

A: The new law applies to all employers with fewer than 500 employees. Small businesses with fewer than 50 employees may petition the Secretary of Labor for exemption from the requirement to provide leave to care for a child whose school is closed or childcare is unavailable, where the viability of the business is threatened.

Q: Who is eligible for paid sick leave under the new Families First Coronavirus Response Act?

A: Any employee, regardless of the length of service, is entitled to two weeks of paid leave at full rate of pay if the employee meets one of the following conditions:

1. The employee is unable to work because the employee is quarantined (pursuant to federal, state or local government order or advice of a health care provider), and/or

2. The employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis.

Note the maximum amount of paid sick leave is $511 per day and $5,110 in the aggregate over a two-week period, whichever is higher.

Employees are entitled to two weeks of paid leave at two-thirds rate of pay if the employee meets one of the following conditions:

1. The employee is unable to work because of a bona fide need to care for an individual subject to quarantine (pursuant to federal, state or local government order or advice of a health care provider), or

2. The employee is unable to work because he/she has to care for a child (under 18) whose school or childcare provider is closed or unavailable for reasons related to COVID-19, and/or

3. The employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor.

Note the maximum amount paid under the leave for the reasons stated above is $200 per day and $2,000 in the aggregate, over a two-week period, whichever is higher.

Q: Who is eligible for paid family leave under the new Families First Coronavirus Response Act?

A: An employee who has been employed for at least 30 days is entitled to 12 weeks of family leave if the employee is unable to work because he/she has to care for a child whose school or childcare provider is closed or unavailable for reasons related to COVID-19. The first 10 days of the family leave are unpaid. The employee may elect to use the sick leave outlined above at two-thirds rate of pay, or the employee may elect, but the employer cannot require, the employee use any other accrued paid leave. The remaining 10 weeks of family leave are to be paid at two-thirds rate of pay.

Note the maximum amount paid under the leave above is $200 per day and $2,000 in the aggregate, over a two-week period, whichever is higher.

Q: How am I supposed to pay for this paid leave?

A: An immediate dollar-for-dollar tax offset against payroll taxes will be provided. For example, if an employer paid $10,000 in sick leave and was required to deposit $8,000 in taxes, the employer could use the entire $8,000 of taxes in order to make qualified leave payments, and file a request for an accelerated credit for the remaining $2,000.

Because of the rapidly changing and evolving situation, we encourage employers to reach out to counsel with specific questions.•

• Candace Bankovich is a partner and chair of the labor and employment practice and Celia Pauli is an associate at Lewis Wagner LLP. Opinions expressed are those of the authors.