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The Impact of The Families First Coronavirus Response Act on Employers with Fewer than 500 Employees

Posted by Eric H. De Wames on Mar 23, 2020 2:00:00 PM

On March 14, 2020, the House passed the Families First Coronavirus Response Act (H.R. 6201). On March 18, 2020, the Senate passed the bill which was significantly revised from its original form. President Trump signed it into law the same day. The effective dates of these provisions are from April 1, 2020 through December 31, 2020.

Emergency Family and Medical Leave Expansion Act (EFMLEA)

This law amends and expands the Family and Medical Leave Act (FMLA) to require all private employers with fewer than 500 workers even employers who were not otherwise covered under the original FMLA to provide leave to workers who need to care for children without schooling or day care because of COVID-19. Additionally, the universe of eligible employees is expanded to those who were employed with the employer for at least 30 days prior to the start of the leave (compared to one year for the typical FMLA claim).

The first 10 days of the leave is unpaid (unless the below Emergency Paid Sick Leave applies), and employees can (but are not required to) apply accrued paid time off benefits to that period. After this 10-day period, employers must provide paid family leave up to $200/day or $10,000 in the aggregate.

Emergency FMLA leave taken is generally job-protected, meaning the employer must restore employees to their prior positions (or an equivalent) upon the expiration of their need for leave. The bill includes an exception to this requirement for employers with fewer than 25 employees, if the employee's position no longer exists following leave due to operational changes occasioned by a public health emergency (e.g., a dramatic downturn in business caused by the COVID-19 pandemic), subject to certain conditions.

Emergency Paid Sick Leave Act (EPLSA)
This component of the law requires all employers with fewer than 500 employees to pay emergency sick leave to employees under any of the following categories:

  • The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.
  • The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
  • The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  • The employee is caring for an individual who is subject to a Federal, State or Local quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
  • The employee is caring for their own child if the school or place of care of the child has been closed, or the child care provider of such child is unavailable, due to COVID-19 precautions.
  • The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.


Employees who are themselves subject to governmental quarantine or isolation orders or medical care for COVID-19 symptoms or diagnosis max out at $511 per day or $5,110 in the aggregate. Employees caring for family members subject to government or medical provider quarantine or isolation orders or children whose schools or day care centers closed due to COVID-19 precautions are paid out at two thirds their regular rate and max out at $200 per day or $2,000 in the aggregate. The emergency paid sick leave benefit caps at 80 hours for full-time workers or the average number of hours across a two-week period for part-time employees.

The bill includes a prohibition on retaliating against any employee who takes leave in accordance with the new law. The bill further provides that the failure to pay required sick leave will be treated as a failure to pay minimum wages in violation of the Fair Labor Standards Act.

Employer Tax Credit
Although these benefits are paid initially by the employer, tax credits are equal to 100% of the emergency paid family medical leave or emergency paid sick leave paid by employers per quarter. If the tax credits exceed the employer's actual tax liability, the employer will receive a refund for the difference.

Small Business Exception
Employers with fewer than 50 workers can apply for an exemption from providing paid family and medical leave and paid sick leave if it "would jeopardize the viability of the business."

Action Items
In order to comply with this new law, Employers will need to do the following:

  • Starting April 1, 2020, satisfy the posting requirements for FFCRA, which may include circulating to all employees by email and/or mail for those not in-office due to any of the above conditions.
  • Accurately track leaves of absence (e.g., FFCRA, FMLA, CFRA, PTO, etc.) identifying which leaves are being applied and for what duration. Notify and properly designate these leaves at their onset.
  • Ensure wage statements accurately reflect and itemize wages paid by these benefits.
  • Take actions to confirm that managers and supervisors understand and follow the anti-retaliation components of these laws.
  • Reinstate employees after leave as required by the law.

     

Topics: Red Alerts, COVID-19

WCAB Emergency Actions in Response to COVID-19

Posted by Sure S. Log on Mar 19, 2020 2:00:00 PM

The novel coronavirus, now called COVID-19, is spreading rapidly around the world. There are confirmed cases in every state in our union. Everyone has a duty to act proactively to prevent the spread of the disease.

In addition to other measures, the Centers for Disease Control and Prevention recommends "social distancing," which it defines as "remaining out of congregate settings, avoiding mass gatherings, and maintaining distance (approximately 6 feet or 2 meters) from others when possible." It defines "congregate settings" as "crowded public places where close contact with others may occur, such as shopping centers, movie theaters, stadiums."[1]

Accordingly, the Division of Workers' Compensation (DWC) and the Workers' Compensation Appeals Board (WCAB) have taken emergency action to limit the number of people who appear at the WCAB district offices around the state.

On March 16, 2020, the DWC and WCAB announced a modified hearing calendar and emergency rules on filing.[2] From March 17 through March 20, the DWC will hold only expedited hearings at the district offices. All other hearings will be continued and issue notices of new hearing dates.

From March 23 through April 3, the DWC will continue to hold expedited hearings at district offices. But status conferences, mandatory settlement conferences and priority conferences will be conducted only via CourtCall.[3] Parties will not be penalized for failing to appear via CourtCall. Instead, if parties do not appear via CourtCall, the case will be continued with notice given. All other hearings will be continued, and no trial or lien conferences will be conducted during this period.

From March 17 through April 3, documents cannot be physically filed at the district offices. The DWC will not accept walk-through documents until the district offices are reopen for filing purposes. Parties may utilize EAMS to file documents online. Parties also may mail settlement documents and petitions to the district offices with venue.

On March 17, 2020, the DWC announced that it would temporarily close its San Jose, Oakland and San Francisco district offices. DWC headquarters, which includes the Medical Unit, Return-to-Work Supplement Program, Uninsured Employers Benefits Trust Fund and Legal Unit, also will be closed temporarily.[4]

On March 18, 2020, the WCAB issued an en banc decision temporarily suspending specified WCAB Rules of Practice and Procedure.[5] The suspension applies to all district offices and to these rules:

  1. Cal. Code Regs., Title 8, former §§ 10562, 10563, 10563.1; current §§ 10755, 10756, 10888 (effective Jan. 1, 2020): Dismissal of an application or lien claim for failure to appear is suspended.

  2. Cal. Code Regs., Title 8, former §§ 10860, 10865, 10866; current §§ 10961(a), 10962(c), 10990(f)(3)(E), 10995(c)(3) (effective Jan. 1, 2020): Workers' compensation judges (WCJs) and arbitrators shall have an unlimited extension of time within which to issue reports in response to petitions for reconsideration or removal.

  3. Cal. Code Regs., Title 8, former § 10408; current § 10500(b)(6) (effective Jan. 1, 2020): Suspension of the requirement in the Compromise and Release (C&R) agreements for signatures from two witnesses. Signatures on the forms from all parties may be electronic.

  4. Cal. Code Regs., Title 8, former § 10500; current § 10628 (effective Jan. 1, 2020): Suspension of the requirement for service by mail by the WCAB. Service by the WCAB may be made electronically with or without parties' consent.


The WCAB also announced that, in accordance with the Newsline, all of the DWC's district offices are closed for filing from March 17 through April 3; all filing deadlines are extended to the next day when the district offices reopen for filing.
The obvious intent of these actions is to prevent people from gathering at the district offices, while making sure that those who might be affected do not lose their due process right to pursue or appeal an action. Because the WCAB no longer requires a C&R to be witnessed and allows all forms to be signed electronically, the WCAB allows settlements by parties who might be required to self-isolate.

There are some issues with the WCAB's decision that "all filing deadlines are extended to the next day when the district offices are open for filing." This statement presumably extends the time for filing petitions for reconsideration, petitions to reopen or documents subject to a statute of limitations. But will the WCAB require such documents to be filed on the date the district offices are open for filing? Will the WCAB give parties additional time beyond the opening of the district offices? What if some district offices are open for filing sooner than others? These questions will need to be clarified by the WCAB.

These actions are not likely to be the last we will see from the DWC or WCAB in response to the coronavirus. The WCAB's emergency order also does not specify how long the rules will be suspended. Given that nobody really knows how long the COVID-19 crisis will last, it is safe to assume the order will remain until lifted by a subsequent order.

 

  1. See the CDC's recommendations at https://www.cdc.gov/coronavirus/2019-ncov/php/risk-assessment.html.
  2. See the DWC Newsline containing the announcement at: https://www.dir.ca.gov/DIRNews/2020/2020-18.html.
  3. For a detailed discussion regarding the use of CourtCall, see the article published by "Sullivan on Comp" on March 17, 2020, "DWC Orders Modified Hearing Calendar and Change in Filing Procedures" at https://app.sullivanoncomp.com/commentaries/2020-03-dwc-orders-modified-hearing-calendar-and-change-in-filing-procedures.
  4. See the DWC Newsline containing the announcement at: https://www.dir.ca.gov/DIRNews/2020/2020-19.html.
  5. This en banc decision is available at: https://www.dir.ca.gov/wcab/EnBancdecisions2020/COVID-19.pdf.

Topics: Red Alerts, COVID-19

DWC Orders Modified Hearing Calendar and Change in Filing Procedures

Posted by Sure S. Log on Mar 17, 2020 9:00:00 AM

The DWC has decided to take direct action to help contain the corona virus. Here is the notification they sent today: https://www.dir.ca.gov/DIRNews/2020/2020-18.html.

Court Dates & Appearances

In summary:

  1. All court appearances, with the exception of expedited hearings, are cancelled from tomorrow until the rest of the week. They will be continued, and the board will send notice by mail of the new dates, within the next five days.

  2. For the two weeks after that (March 23 through April 3) the board will hear expedited hearings. They will also hold status conferences, mandatory settlement conferences, and priority conferences, but via CourtCall only. If the parties do not appear via CourtCall the case will be continued and notice will be given. No trials and lien conferences will be heard over this period. Presumably, new dates will be sent out by the board.

  3. For all three weeks (tomorrow through April 3) parties cannot file documents with the board. All filing deadlines will be extended thorough April 6.

  4. For this period also, the board will not accept walk-through documents. Documents may be filed online through EAMS. Parties may also mail in settlement documents or petitions.

Also:

  1. The April 18 QME exam has been cancelled.

  2. In an e-mail message today, CAAA advises that: "CAAA Executive Director Diane Worley asked Chief Judge Paige Levy whether injured workers can be excused from appearing during this period if it would jeopardize their health. Chief Judge Levy advised that would be acceptable, and they can participate through technology such as Facetime or Skype if testimony is required."

  3. CAAA also reports that "There will be no penalties for a non-appearance during this time period as some people are having difficulties setting up Court Call as they are being inundated with requests."

And that's just for now. They may extend or make other changes.

CourtCall & How It Works

Naturally this makes for a lot of challenges. One in particular is CourtCall. This is a device long used by the board, but not used a lot. How does CourtCall work? To start, there's no law on this. The WCAB hasn't adopted any regulations for the use of CourtCall. The only information about it on the DWC website is at this link: https://www.dir.ca.gov/dwc/DWC_address/CourtCall.html. It directs you to the CourtCall website: https://courtcall.com/.
We have put together a briefing on how court call works as follows:

What is CourtCall?

CourtCall is a Remote Appearance platform used by participating Courts and Judges primarily for Status Conferences. During this public health crisis, all WCAB locations are accepting CourtCall and have expanded its use to include Mandatory Settlement Conferences and Priority Conferences. CourtCall charges a flat-fee of $66 per appearance. A credit card is needed to schedule the hearing online but the scheduler is charged after the hearing takes place.

How is It Set Up?

CourtCall coordinates with Judges and Judges' assistants to setup telephonic appearances in lieu of in-person appearances. Law firms must register their attorneys either individually or using one of the other available options. If using Bulk Attorney, please make sure to list the attorney's assistant as the scheduler, as they will need to have access.

How Does It Work?

The scheduling party receives a CourtCall confirmation via email with date/time of hearing, call-in information, and further details. The email includes a receipt in PDF format which should be shared with all parties except WCAB. It lists the dial-in information and instructions. All participants need to call in 5 minutes before the scheduled hearing. CourtCall does not call the parties. If you are calling in late and the call is already in session, please wait to announce yourself.

Participants must be in a location where they are able to email documents to the WCAB and/or other parties. Please identify yourself each time you speak.

How to Register

Using any browser, go to: https://courtcall.com/ or call 888-882-6878.

Select Register then select Type of Registrant.

Once registered, the attorneys will receive an email confirmation which states "Instructions for activating online access will be sent..." to them separately within 1 business day.

After receiving your account information, an attorney or attorneys' assistant can login to CourtCall to check which appearances are available for CourtCall. Reminder: you can call 888-882-6878 to schedule CourtCall as well.

Please have the following ready:

  • Case Name & ADJ #

  • Date & Time of appearance

  • Judge's Name

  • Defense Attorney

  • Applicant's Attorney

Login & Select New Appearance

Once you select the County, Court, and Judge, you will be taken to a list of available upcoming appearances. Select the hearing you are looking for.

If you receive the error message, "Online scheduling is not currently available for this Judge/Dept. Please call us at (888) 882-6878 for more information." Call the indicated number.

Topics: Red Alerts, COVID-19