On April 1, 2020 James Estabrook and Kathleen Connelly of the firm’s Labor & Employment group hosted a webinar discussion for members of the Northern New Jersey and Southern New Jersey chapters of the National Electrical Contractors Association.
The webinar addressed questions regarding employee leave rights and benefits under the Families First Coronavirus Response Act (FFCRA).
You can watch and listen to a recording of the webinar on our firm’s YouTube channel here.
On March 27, 2020, the Coronavirus, Aid, Relief and Economic Security Act (the “CARES” Act) was passed, making it the third federal law to address the coronavirus (COVID-19) public health pandemic. The Act, designed to provide additional relief to those affected by the pandemic, contains multiple provisions that specifically implicate multiemployer plans as set forth more fully below.
Coronavirus Related Distribution
The Act allows defined contribution plans to adopt provisions allowing for early distributions, up to a maximum of $100,000, for qualified individuals who have been adversely affected by the coronavirus pandemic. Qualified individuals include the following:
As the response to the coronavirus pandemic continues to evolve, it is imperative that healthcare providers stay informed about the latest legal developments that may affect their practices.
In the middle of a pandemic and with instructions from all levels of government to practice social distancing, visiting your healthcare provider virtually may seem like an obvious choice. And yet, a patchwork of federal and state regulations governing telehealth has complicated such visits.
As just one example, licensure of physicians is on a state-by-state basis. Each state has its own regulations making it difficult to implement a national telemedicine program. Adding to that are limits on physicians being able to treat patients in a state in which they are not licensed, as well as different state drug prescription and privacy laws.
The coronavirus pandemic has come in like a wrecking ball on a path of destruction, creating an unprecedented public health crisis and bringing the economy to a near crawl.
Several legal fallouts have only begun to take place and will likely continue for some time. One of the legal challenges coming to light as a result of this pandemic is that many businesses, particularly those dealing in goods and services, or relying on goods, face inevitable inability or extreme difficulty in fulfilling their contracts both during the pandemic and for an unknown period of time thereafter.
How do businesses continue to fulfill their contractual obligations when governments have ordered nonessential workers to stay home and goods that they regularly relied upon have become suddenly unattainable?
Last week in our publication entitled Employer’s Guide to Federal and State Employee Leave Rights and Income Protection for Coronavirus Related Absences, we addressed the new Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act (“Emergency FMLA Leave”) that employers must provide to employees as of April 1, 2020 under the new Families First Coronavirus Response Act (FFCRA). As indicated in that publication, the US Department of Labor was expected to issue additional guidance of compliance with these new paid leave obligations.
Since the passage of the FFCRA, the U.S. Department of Labor has issued several versions of a Questions and Answers publication that clarifies some of the issues that were not directly addressed in the FFCRA. Below is a summary of some of those clarifications.
Documentation Employees Must Submit to Support a Paid FFCRA Leave Request. The FFCRA mandates Emergency Paid Sick Leave if the employee is able to work/telework for one of 6 Covid-19 related absences (refer to the Guidance link above for the list of 6 qualifying reasons) and paid Emergency FMLA Leave if the employee is unable to work due to a child’s school or daycare closure (or unavailability of daycare provide). The DOL makes it clear that employers must require employees to provide documentation to support an Emergency Paid Sick Leave or Emergency FMLA Leave, including:
By the time you are reading this guidance, your business has likely been operating under a shelter in place order or perhaps even a governmental quarantine in response to the Coronavirus pandemic, and your staff has been operating remotely for an extended period. While it may be too soon to fully assess whether remote access and teleworking is functioning optimally for your business, it is not too soon to ensure that the process of remote access and telework is being undertaken on the enterprise level in a safe and diligent fashion. Indeed, this is a responsibility that should be addressed from the Board of Directors and C-suite level down to the factory floor.
While the topic of remote access and its impact on cybersecurity could fill up volumes, there are two aspects of remote access and telework that businesses of all sizes need to acknowledge and address immediately. First, while remote access and telework were on the rise before the Coronavirus Pandemic, they are now most assuredly an integral part of your business for the foreseeable future. Your customers and staff expect you to be able to keep your business open through remote operations, and the harsh reality is that businesses that cannot operate remotely in some capacity have less chance of success during periods of shelter in place orders, governmental quarantines and social distancing.
Second, with more staff utilizing remote access and telework during the pandemic, the likelihood of your business’s information technology and the data stored thereon being exposed through cyber-breaches and attacks has grown exponentially. There are countless articles explaining the inherent dangers of remote access and telework, but the theme that permeates them all is that working remotely comes with its own set of dangers and that hackers and cybercriminals who have already been relentlessly attacking businesses through email and phishing scams, DDoS attacks, ransomware and social engineering, have already increased their attacks on businesses using remote access. Simple changes in your staff’s routines caused by new procedures can throw them off balance and create an opportunity for a hacker to exploit.
On March 27, 2020, the $2 Trillion federal stimulus act known as the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”) was enacted, providing among other things for $349 Billion in funding for forgivable loans to small businesses to assist in funding payroll and certain other expenses during the current coronavirus pandemic. The “Paycheck Protection Loans” are available to businesses with under 500 employees who had employees on payroll as of February 15, 2020 (and certain other businesses and nonprofit organizations specified in the CARES Act). Here is the basic summary.
Implementation: The CARES Act requires that final implementing regulations must be issued within 15 days after enactment (i.e. by April 11, 2020). Treasury Secretary Steve Mnuchin has said that he will look to have the application process implemented by April 3, 2020 (with a potential one day approval process). Loans can be made by any bank authorized to make SBA loans, and there is authority granted to allow other FDIC bank to make such loans even if they have not previously done SBA loans. Loans must be applied for by no later than June 30, 2020, but obviously sooner is better than later.
Loan Amount: The amount that can be borrowed is capped at the lesser of (i) $10 Million or (ii) 2.5 times the average monthly payments for “payroll costs” over the 12 months before applying for the loan. Payroll costs means payments of any compensation with respect to (i) salaries or similar compensation, (ii) vacation, parental, family, medical, or sick leave (other than those covered by certain other recent coronavirus response Federal laws), (iii) allowance for dismissal or separation, (iv) payments for the provision of group healthcare benefits, including insurance premiums, (v) payment of any retirement benefit, and (vi) payment of State and local taxes assessed on the compensation of employees. The excess portions of an employee’s compensation in excess of the $100,000 level does not count in the above calculation, nor do taxes imposed or withheld under chapters 21, 22, or 24 of the Internal Revenue Code.
In April, 2016, I wrote about the New Jersey Appellate Division’s Opinion in Scannavino v. Walsh, 445 NJ Super 162 (App Div. 2016), which set forth the law on the liability of property owners whose trees/vegetation encroaches on the neighbor’s property. In that case, Plaintiff alleged that defendants improperly allowed the roots of trees on their property to cause damage to a retaining wall between the parties’ properties. Because the defendants did not plant or preserve the trees, they were deemed a natural condition for which the defendants were not liable. The Opinion is very helpful in dealing with many situations involving encroaching trees/vegetation between neighbors.
I concluded in writing about the Scannavino case, with “It will be very interesting to see how the nuisance cases “in the middle” (pure “natural” occurrences versus “artificial” conditions) evolve and are determined.” Further, it will be interesting to see if the New Jersey Supreme Court (“the Court”) decides to further clarify the issues and/or adopt the more liberal view (simple reasonable care standard) imposing liability set forth in the Restatement (Third) of Torts §54 (2012).
Well, the New Jersey Supreme Court has weighed in, but I am not sure if the Court has really clarified the issues.
As we get deeper into the “shelter in place” requirement imposed by Governor Murphy, stress is more present in our lives every day. Being house-bound is frustrating on so many levels. Couples who are in difficult marriages, or who are going through a divorce (regardless of whether they are separated or living together) face much greater stress on a day-to-day basis while sheltering in place, or while managing things like the exchange of children for parenting time.
I have some basic points of advice for those of you who are contemplating divorce but have not yet taken action, as well as for those of you who have a divorce case which is active. You are both facing the same types of problems which have been aggravated by the onset of the coronavirus crisis.
Here are some practical tips to help you through these challenging times:
The COVID-19 virus has placed the population in a situation the likes of which we have never seen in our lifetime. It has had an impact on almost every facet of our lives. It has raised, and will continue to raise, the stress levels each of us experience in everyday life.
As a family law attorney, I can confirm that it has had a crippling effect on the legal system and its ability to attend to cases. Courthouses are closed to the public. For the foreseeable future, Judges and their staff will be working remotely. The time-consuming process of divorce litigation will face extended future delays.
As an alternative to the delays posed by the virus, I am pleased to offer “Virtual Mediation Services.”
Lindabury, McCormick, Estabrook & Cooper, P.C. Firm News & Events