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The U.S. Department of Labor in Washington, D.C.

Recalling employees could lead to conflicts

The owners of a furniture store in a Midwestern state furloughed most of their 15 employees after their governor issued stay-at-home orders several weeks ago. Now, ready to reopen, they’re calling them back.

Some aren’t ready to come.

One is caring for a child who’s out of school for the rest of the academic year.

A second said she wouldn’t feel comfortable returning for at least another two weeks.

A third said he wanted to draw unemployment benefits longer.

These furniture retailers – who don’t want to be identified because they’re talking about their staff – are facing human resources issues that will challenge many other Home Furnishings Association members in the weeks ahead. They all want to get back to work, but a combination of public health requirements and new laws that provide extensive benefits for employees will change the ways businesses operate.

Thursday webinar will address HR questions

Many of these concerns will be discussed in a Home Furnishings Association COVID-19 Webinar Thursday at 3 p.m. EDT (noon PDT). HR expert Eric Martin of ACG Consulting Services and employment law attorney Pascal Benyamini of Faegre Drinker Biddle & Reath LLP will offer their insights. The webinar will be hosted by HFA Executive Vice President Mark Schumacher.

[Register for webinar]

Furniture store employees aren’t the only people in the industry who worry about family health and child-care problems. So do business owners. In fact, a survey of small business owners and executives by the Bipartisan Policy Center found that half say their own family and child-care responsibilities are a concern during the coronavirus crisis. So they understand that many of their employees must provide education and supervision for homebound kids and may not be able to return to work soon.

Unlike employees, however, business owners have legal responsibilities for meeting some of the family health and child-care needs of the people who work for them. They should make plans for how to fulfill those responsibilities.

New law requires paid leave for COVID-19 issues

The Families First Coronavirus Response Act, signed March 18 by President Donald Trump, requires small businesses to grant up to two weeks of paid sick leave and up to an additional 10 weeks of paid family and medical leave for qualifying employees. The law took effect April 1 and will be in force through the rest of 2020.

U.S. Department of Labor officials Christine Schott and Olivia Jones explained its provisions and answered questions during an April 29 conference call with members of the HFA’s Government Relations Action Team.

The Family First act was meant to help workers stay home for legitimate virus-related reasons without losing a paycheck. While employers must pay the benefit, they can receive government compensation through tax credits. At the time the bill was enacted, however, it really wasn’t anticipated that school in many states would be suspended for the rest of the academic year. Millions of Americans – and small business employees – will qualify for up to two weeks of paid sick leave followed by as much as 10 additional weeks of paid family leave. The leave must be paid at two-thirds of an employee’s regular earnings, although there is a cap.

Smallest businesses may claim exemptions

The leave is intended to be granted before the employee uses any other paid time off the employer already provides, said Schott, a senior adviser in the Wage and Hour Division of the Department of Labor. The law applies to businesses with fewer than 500 employees. Businesses with fewer than 50 employees can claim an exemption to the requirement that they provide paid sick leave or family leave to care for children who are out of school, but they need strong reasons, Schott said. From the Wage and Hour Division’s FAQs:

  1. The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity.
  2. The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities.
  3. Or there are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.

Workers are not entitled to the Family First benefits, however, if the business is closed and they are laid off or furloughed, said Jones, a senior wage and hour investigator. The Department of Labor makes no distinction between a layoff and a furlough. An employee who is on paid sick leave under the act, whose business then closes, loses the paid sick leave.

Paid family leave or unemployment benefits?

Owners of a business like the Midwest furniture store may face difficult decisions. For example, if they call back the employee who is caring for a child whose school is closed, the employee could immediately request paid leave. It might be better for the business and for the employee not to call her back. That would allow her to continue collecting unemployment benefits, which are enhanced by a federal supplement of $600 per week. In that case, the employer and employee might want to discuss the options and arrive at a mutually beneficial solution.

Employees who decline to return to work because they prefer to stay on unemployment should be aware that they risk losing that benefit by refusing available work. It’s more complicated if an employee, perhaps because he or she has an underlying medical condition, expresses anxiety for health reasons about returning to work. According to the federal Occupational Safety and Health Administration, employers have a general duty to furnish to each worker “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” OSHA also notes that “certain people, including older adults and those with underlying conditions such as heart or lung disease or diabetes, are at higher risk for developing more serious complications from COVID-19.” So, employers must make sure to follow Centers for Disease Control guidelines to ensure workplace safety when requiring employees to return to work.

DOL will answer questions confidentially

Schott invited HFA members, and their employees, to call the Department of Labor for more information.

“You’re welcome to refer employees to Wage and Hour with questions,” she said. “A lot of times you’re giving employees information and they might think they have an entitlement to more than the law requires. Wage and Hour will talk it through with employees. Our contact with them and with you is confidential. We will answer questions; we’re available locally in all the states.

“The same thing goes with employers,” she added. “I hope you would feel comfortable calling any Wage and Hour office. … We are available by phone and we’re always happy to work with employers when they’re not sure what the law would require.”

The HFA will continue offering information on its COVID-19 Recovery Resources page, where you also can find recorded webinars.

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