Musings of an Employment Lawyer on Returning to Working in the Age of COVID-19
By: Gary Benson, Esq.
have been representing employers for the last 30 years, and the last three months have included the most surreal moments of my career. For those of you who watch “Stranger Things,” I’m sure you will agree that we are currently living in the “Upside Down.”
At the beginning of March, as COVID-19 was an issue in China and Italy but had not yet become a U.S. problem, I was counseling employers they could not take employees’ temperatures or prevent employees who had traveled to Asia from returning to the office after their vacation, as this would violate the Americans with Disabilities Act. Less than two months later I am not only advising my clients that they can take employee temperatures, but that they are legally required to do so before allowing them to return to the office.
By mid-March, the Families First Coronavirus Response Act (“FFCRA”) was passed. It stated that if employees were unable to work due to a government shelter in place order, they would receive two weeks of paid leave. The language in the statute was clear but the Department of Labor (the agency charged with enforcing the law) said no benefits were owed if employees were sent home due to a lack of work, even if this was because of a shelter in place order.
At the end of March, Congress passed the CARES Act, a two trillion-dollar relief and stimulus bill that, amongst other things, provides a steroidal boost to Unemployment Insurance (“UI”) benefits. Now an employee making $35,000 per year is likely bringing home more money, through July, than before they were furloughed or laid off. Clients complained that employees did not want to return to work, make less money and risk infection.
Had you asked me just three months ago if an employee would be eligible for UI benefits should they reject an offer to return to work, I would have told you “no” as someone typically doesn’t get to collect UI benefits when they are offered a job. Then, on April 27th, Governor Polis issued an Executive Order stating that employees should not lose their right to Unemployment Insurance if they refuse to return to work due to a “demonstrable” fear of catching COVID-19 Don’t we all have a demonstrable fear of catching COVID-19?
Employers can file claims against workers refusing to come back at ColoradoUI.gov, and workers who have received a job offer they don’t want to accept because of health and safety concerns can note that as well when they file weekly or biweekly benefit claim forms. So far, about 150 workers fighting orders to return to work have filed claims with the Colorado Department of Labor and Employment (“CDLE”) to keep receiving unemployment benefits, while employers have filed about 200 claims that could trigger cancellation of payments.
When a claim is filed, the CDLE staff will try to adjudicate it quickly. Employees will be asked to explain what underlying condition they have that makes it unsafe for them to return to work or why they feel the workplace is an unsafe environment. Employers will be asked if the worker is coming back at the same job and pay rate and if efforts have been made at increased sanitation and social distancing. So far, CDLE officials are coming down on the sides of the workers at a ratio of about 10-to-1.
The CARES Act also includes the Paycheck Protection Program (“PPP”), providing eight weeks of fully forgivable payroll and rent for small businesses. The program was so popular that it ran out of $350 billion dollars in a matter of days. Congress began doling out PPP money before it even passed rules and regulations providing clear guidance to businesses on how the loan would be forgiven.
In early April, clients began asking if they should apply for a PPP loan or wait, as it made more sense to get the loan when their practice was actually open. Do you delay filing a PPP application because you don’t want the money yet? How do you advise clients to delay their application for what is essentially “free money” knowing that there is a high likelihood that the well will run dry and there is no guarantee of a second round of funding? By mid-April, there was a second round of PPP funding announced and those practices who were shut out in the first round were suddenly glad their bank was unable to get their first application approved.
Next employers needed answers to the simplest of questions regarding their PPP proceeds. The CARES Act specifically states that state and local taxes can be funded with PPP loan proceeds. It makes no allowance for a business to use PPP proceeds to fund federal taxes; however, the Small Business Administration (the agency charged with administering and auditing the PPP) provided its interpretation of the law and said that an employee’s payment of Federal Income Tax can be funded with PPP proceeds. It wasn’t until mid-May with the release of the PPP Forgiveness Application and final rules that we were able to confirm that health insurance premiums, retirement plan contributions and an employee’s share of Federal Income Tax can be funded with PPP proceeds.
Our lives are resuming, our businesses are opening. What do the next several months hold in store? The best advice I can give is that you is to remain flexible. We initially were required to take employee temperatures and conduct a symptom check, then the Department of Public Health and Environment said if that is not practicable then employers can have employees conduct the wellness check at home. Expect many new Executive and Public Health Orders and amendments. Listen to your people and their concerns. Take a deep breath before you move on fro m a long-term employee who is genuinely concerned about returning to work. Remember that it is not easy to replace departing employees right now. If you were lucky enough to secure a PPP loan, remember that you need to have the same number of Full-time Equivalent (“FTE”) employees by June 30th as you had before the pandemic or you will lose a pro rata share of forgiveness on your loan. Remember that “temps” hired through a third-party agency will not meet the FTE requirements as your business is not their actual employer.
In talking to many of you, I can anecdotally report that patients are universally returning to your practices and are in a rush to do so. Fear of infection has not resulted in patients pushing off their rescheduled appointment for several months. Your practices have quickly become efficient at disinfecting between patients, maintaining social distance and using PPE. If you continue to adapt as efficiently as you have in just the last three months the outlook for your practices is very bright.
Gary Benson has been practicing human resources law for more than 20 years. He is a partner at Dworkin, Chambers, Williams, York, Benson & Evans, PC where he counsels numerous businesses on their employment practices and procedures. In addition to being an experienced litigator he is also a frequent lecturer on issues surrounding employment law and has presented for the Colorado Bar Association.