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COVID-19

CAN YOUR EMPLOYEES REFUSE TO RETURN TO WORK?

When your business reopens, what can an Employer do when employees refuse to return to work?

First, the Employer should consider whether or not there is COVID-19 in the workplace. If there is, there are many layers of leave policy that come into play when evaluating the Employer’s responses to this event.

Second, when there is no COVID-19 in the workplace, the EEOC has established guidance for Employers covered by the ADA (with 15 or more employees):

“The ADA requires that any mandatory medical test of employees be "job related and consistent with business necessity."  Applying this standard to the current circumstances of the COVID-19 pandemic, Employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore, an Employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.” 

Third, What if there is no COVID-19 in the work place?

And what if an employee is simply afraid of getting the virus from a customer?

The US Department of Labor published two Q and A that give Employers direction on how to handle its employees:

#1 …. I’m afraid of getting coronavirus from customers coming to the store, so I quit and filed for unemployment. Can I obtain [unemployment] benefits under the CARES Act?

No. Under the CARES Act, you may be eligible for benefits if you meet one of the circumstances listed in the Act, but none include the scenario described. On these facts, you are not eligible for Pandemic Unemployment Assistance (PUA) because you do not meet any of the qualifying circumstances;

And

#2. …I was furloughed by my Employer, but they have now reopened and asked me to return to my job. Can I remain on unemployment?

No. As a general matter, individuals receiving regular unemployment compensation must act upon any referral to suitable employment and must accept any offer of suitable employment. Barring unusual circumstances, a request that a furloughed employee return to his or her job constitutes an offer of suitable employment the employee must accept. While eligibility for PUA does not turn on whether an individual is actively seeking work, it does require that the individual be unemployed, partially employed, or unable or unavailable to work due to certain circumstances that are a direct result of COVID-19 or the COVID-19 public health emergency. In the situation outlined here, an employee who had been furloughed because his or her Employer has closed the place of employment would potentially be eligible for PUA while the Employer remained closed, assuming the closure was a direct result of the COVID-19 public health emergency and other qualifying conditions are satisfied. However, as soon as the business reopens and the employee is recalled for work, as in the example above, eligibility for PUA would cease unless the individual could identify some other qualifying circumstance outlined in the CARES Act.

Conclusion. The avalanche of new laws governing employment, paid leave and return to work polices needs special guidance by experienced legal practitioners to deal with 100s of new and challenging circumstances.

Zeigler Townley PC has the staff and guidance to assist. Contact info@zeigerlaw.com or 248.643.9530.

Rev 4.29.20

PAYCHECK PROTECTION PROGRAM

Nuts and Bolts

1. First Come. First Served. Loans will be available through June 30, 2020, although program funding limitations may impact loan availability for those businesses applying later in the availability timeframe.

2. SBA Lenders Only. You can only make application through your bank or credit union if the bank is an authorized Small Business Administration lender - so you must have a banking relationship with the lender. You will apply for your loan through your lender’s website. It is all online.

3. Amount. The amount that you apply for is 2.5 times your average monthly payroll. Use 2019 to calculate your average monthly payroll expense. Repayment terms, if not forgiven, are 2 years at 1% interest. Repayments can be deferred for up to 6 months.

4. Electronic signing. You will have to create an electronic signature to sign the application.

5. Supporting Documentation. You will need to support your payroll estimate with 2019 payroll reporting forms, such as 2019 IRS Quarterly 940, 941, or 944 payroll tax reports.

6. No Personal Guarantee. It is extremely unusual to have a SBA loan without a personal guarantee, and no collateral required. It is possible that this will be modified at a later time.

7. When do I get my money? As soon as your lending institution approves the loan, the SBA registers the loan, and the business owners sign the promissory note. Then the lender and put the money in your business account.

8. Loan Forgiveness? 100% of the loan may be forgiven if the business uses 100% of the loan money for payroll and other qualifying expenses, like rent, mortgage interest, employee benefit costs, etc. However, non-payroll costs are limited to a maximum of 25% of your loan amount for forgiveness purposes. Action Step: use at least 75% of the loan proceeds for payroll. Forgiveness is based on the employer maintaining employee headcount or quickly rehiring employees and maintaining salary levels in place on February 15th during the 8 weeks following the loan origination date. Forgiveness will be reduced if full-time headcount declines, or if salaries and wages decrease.

Zeigler Townley PC can assist with the loan application process. Contact info@zeigerlaw.com or 248.643.9530.

Here is the SBA link for more information about the program:
https://www.sba.gov/funding-programs/loans/coronavirus-relief-options/paycheck-protection-program-ppp - section-header-5

Rev 4.7.20

PAID MEDICAL LEAVE ACT

Starts March 29, 2019
Public Act 338 of 2018

Michigan has adopted a new Paid Medical Leave Act effective on March 29, 2019.

The Act requires that Employers pay up to 40 hours per year for medical leave. It applies to Employers having 50 or more W-2 employees.

The Act requires the accrual of 1-hour of paid medical leave for each work week in which 35 or more hours are worked by eligible employees.

The law requires the mandatory posting of a notice to all employees explaining the rights of employees to paid medical leave under the Act.

However, the posting is not the policy.

As a courtesy, the posting can be found at the State of Michigan website by clicking here.

There is one decision that Employers have to make. Each Employer must decide how to implement the Policy. There are two Options:

Option #1: Accrual and carry over. If the Employer wants to allow employees to take their leave time as it is accrued throughout the year, then the Employer must allow its employees to carry over a maximum of 40 hours of accrued but not taken leave hours to the next year.

Option #2: Immediate use and no carry over. If the Employer allows employees to take their 40 hours of leave time at the beginning of each benefits year (i.e. before the leave time is accrued), then the Employer is not required to allow its employees to carry over the 40 hours of accrued but not taken leave hours from year to year.

Of course, there are numerous exceptions to which employees can earn the paid leave and how the Employer allows the leave to be taken; for example in 1-hour increments, or in accordance with the other written policy guidelines.

Please contact our office to arrange for the timely rollout of this new mandatory paid leave benefit covering your employees.

Zeigler Townley, PC