On August 3, 2020, at the urging of the State of New York, U.S. District Judge Paul Oetken of the Southern District of New York struck down four different provisions of the U.S. Department of Labor’s (“DOL”) implementing regulation for the Families First Coronavirus Response Act (“FFCRA”): (1) the “work availability” requirement, under which paid leave is only available if an employee has work from which to take leave; (2) the requirement of employer permission to take leave intermittently; (3) the definition of “health care provider” for purposes of exclusion from paid leave benefits; and (4) the requirement for an employee to provide certain documentation before taking leave. New York v. U.S. Dep’t of Labor, 2020 WL 4462260 (S.D.N.Y. Aug. 3, 2020).
Although the judge did not issue a “nationwide” injunction, the mere fact that there was a decision by a federal judge striking certain important provisions of the FFCRA regulation left employers (or maybe just their counsel) in a panic about the implications outside of New York. Would this decision impact eligible employees in California? Would the decision be retroactive? Would the DOL appeal? Would it seek a stay of the decision while the appeal was pending? Continue reading “Strident DOL Revises FFCRA Reg, Thumbs Its Nose at NY Federal Court Decision”
COVID-19 legislation that contains two key paid leave acts—the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act.
In a nutshell, the Emergency Paid Sick Leave Act entitles employees to paid sick leave when they cannot work or telework due certain COVID-19-related circumstances affecting the employee or someone for whom the employee is caring. The Emergency Family and Medical Leave Expansion Act provides paid leave for employees caring for a child due to school or childcare provider closures related to COVID-19. For an overview of both Acts, check out Blank Rome’s Update.
“Work sharing” allows employers to reduce employee wages or hours instead of doing a layoff or furlough by reducing the hours of retained employees subject to a specific plan created by the employer. Work sharing enables employees to keep their jobs while simultaneously receiving unemployment benefits to supplement the lost income. At present, 27 states have enacted work sharing programs (oui.doleta.gov/unemploy/docs/stc_fact_sheet.pdf), though the requirements and benefits vary from state to state.
What is work sharing? Work sharing, also called “short-term compensation,” should not be confused with job sharing, which allows two part-time employees to share one full-time job. Instead, “work sharing” refers to cutting workers’ hours to avoid cutting workers’ jobs, effectively sharing the burden across employees when an employer has to scale back labor costs due to financial pressures, such as those presented by the coronavirus COVID-19 pandemic. Reducing hours instead of reducing headcount saves money, saves morale, and saves the maximum number of employees for when business levels later return to pre-emergency levels. Continue reading “How Work Sharing Saves Labor Costs and Confronts Uncertainty”