3/17/2020
Q. Must we keep paying employees who are not working because they are ill with COVID-19, are being quarantined because of COVID-19, or are caring for an family member who is ill or being quarantined because of COVID-19?
A. The general answer is no, but there are several key exceptions that need to be considered. Under the FLSA and MA law, employees who work part of a work week must be paid for the entire work week. In NH, employees must be paid for the entire pay period if they have performed work. There is federal legislation pending that would require employers with fewer than 500 employees to provide two weeks (80 hours) of paid sick leave to full time employees at the employee’s regular rate of pay in the event of illness, to seek testing or preventative care, or to quarantine, and employees would be paid 2/3 of their regular rate of pay to care for a family member, to care for children if their schools are closed, or to care for children if their regular caregiver is not available due to coronavirus. Employers with greater than 500 employees are excluded, and companies employing fewer than 50 could seek exemption from the Department of Labor upon a showing that paid leave “would jeopardize the viability of the business as a going concern.”
There is also a provision in the version of the bill that passed the House of Representatives which would provide up to 12 weeks of paid family and medical leave at no less than 2/3 of their normal pay and job protection to employees impacted by the pandemic. This proposal significantly broadens the protections of the FMLA on a temporary basis.
Q. Must we keep paying employees who are not working because we have been directed or decided to stop doing business for a period of time as a result of COVID-19?
A. The general answer is no, but there are several key exceptions that need to be considered. Most of these employees will be eligible to receive unemployment benefits to supplement income loss due to work stoppage. Both MA and NH have temporarily eliminated the one week waiting period before payment of benefits begins, and the governors of both states have proposed legislation expanding the reasons for which unemployment may be collected.
Q. If an employee is working remotely, do they need to be paid at the same rate?
A. Yes, salaried employees who are working remotely do need to be paid their regular salary for the time that they are working. If you choose to reduce their rate of pay for any reason during this period, it must be in writing and signed by the employee. Hourly employees should continue to track their time as they normally do and would be paid their regular hourly rate for all hours of work.
Q. Can we reduce an employee’s hours because of disruption caused by COVID-19?
A. Yes, you may reduce an hourly employee’s hours or not schedule an employee to work because your business has been disrupted by COVID-19. If you reduce the hours of a salaried employee and also want to reduce their pay, it must be in writing and signed by the employee.
Q. Can we charge time missed to vacation and leave balances?
A. The general answer is yes, but this will also depend on your company’s vacation or leave policy. In most cases employers would allow employees to apply paid vacation time or leave time to the time that the employee is not working. Some employers are liberalizing their paid time off and sick leave policies to enable employees to use that time for reasons their policies do not currently allow. Some companies are also allowing employees to “borrow” PTO or go into the negative for brief periods in order to diminish the disruption which is caused by a quarantine.
Q. Is unemployment available?
A. Yes, if an employee’s employment is terminated. There is legislation pending in New Hampshire and Massachusetts that will expand the applicability of unemployment benefits to situations such as quarantine and the need to care for a family member with COVID-19.
Q. What issues do we need to be concerned about if we are going to lay people off as a result of COVID-19?
A. In New Hampshire, employees will be entitled to payment of all accrued but unused vacation and leave time in accordance with existing policies and be paid for the entire pay period when they are terminated. This payment will need to be made within 72 hours of the employee’s termination.
In Massachusetts, employees will be entitled to payment of all accrued but unused vacation and leave time and be paid for the entire week when they are terminated. This payment will need to be made the day of the employee’s termination.
Q. Does family and medical leave apply to this situation?
A. Yes, if the requirements of the Family and Medical Leave Act (FMLA) are met by the employee then the employee would be protected by FMLA. Currently the FMLA provides up to 12 weeks of unpaid leave and job protection for employees losing time from work due to their own serious health condition or to care for a family member with a serious health condition. The pending legislation would require that the leave time be paid time, would shorten the time frame within which an employee must be employed by the employer before being eligible, and would expand the reasons for which FMLA could be used. Employees are not entitled to FMLA protection to stay at home in order to avoid getting sick.
Q. Do I need to provide any notices to government agencies if I have a significant layoff?
A. Yes, in New Hampshire if 25 or more employees are being terminated the employer must notify the New Hampshire Department of Employment Security. Further information and the reporting form are available on the agency’s website . www.nhes.nh.gov
Employers with 100 or more full-time employees who implement a “plant closing” or “mass layoff” may need to provide notice of the layoff under the Worker Adjustment and Retraining Notification Act (WARN). This analysis is dependent on the facts and circumstances of the layoff, and legal counsel should be consulted if a company with more than 100 full-time employees is considering a significant layoff. It is important to keep in mind that these “plant closing” and “mass layoff” are defined in detail under WARN’s regulations and that they are not intended to cover every single layoff or plant closing.