As the number of Covid-19 infections rise, the federal, state, and local governments are taking more drastic actions to protect and support the public during this time. The following updates summarize major changes that affect employers in the DMV:
1.Families First Coronavirus Response Act. The FFCRA became effective April 1, 2020. All employers, even those that may be exempt (see below), are required to provide the Department of Labor notice to their employees. We recommend posting the notice on site as well as emailing a PDF copy to every employee.
2. Small Employers Exemption under FFCRA. The Department of Labor has released temporary regulations, effective April 1, 2020, that provide additional guidance and interpretation under the FFCRA. Importantly, Employers with fewer than 50 employees may be exempt from providing paid leave child-care related leave under FFCRA if an authorized officer of the business has determined that:
a. The leave requested 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;
b. The absence of the employee or employees requesting leave would entail a substantial risk to the financial health or operational capabilities of the business because of their specialized skills, knowledge of the business, or responsibilities; or
c. 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 leave and these labor or services are needed for the small business to operate at a minimal capacity.
To elect this small business exemption, the business must document that a determination has been made pursuant to the criteria above and retain the records in its file. They should also notify their employees of their decision, in order to provide clear communication and set expectations.
3. Stay at Home Orders. MD, DC, and VA are all under Stay at Home Orders in the hopes of “flattening the curve.” For the essential businesses that remain open or the non-essential businesses that can continue to perform some functions, the Maryland governor office suggests that employers provide a letter to employees who must commute to and from work to present as proof if they are stopped. The suggested content for the letter is:
a. the name and address of the employee;
b. the name and address of the employer;
c. the nature of the employee’s work;
d. a brief statement of why the employer remains open for business; and
e. a signature and contact information for the employer.
4. Insurance. As businesses are adapting to the changing circumstances – by shifting to telework, offering delivery services, providing more online services – their risk and, thus, their insurance needs may change. You may need to add automobile or cybersecurity insurance depending on your increased risk. We recommend contacting your broker if you are changing the way you do business.
5. Alternatives to In-Person Review of Form I-9 Documents. The U.S. Department of Homeland Security has announced that any employer which is operating fully remotely may review I-9 documentation via email, fax or videoconference during the national coronavirus emergency. In-person review is deferred until May 19 or within three business days after the termination of the national emergency, whichever comes first. To avail itself of this option, the employer must be operating fully remotely, must document each employee’s remote onboarding and telework policy, and must enter COVID-19 in box 2 of the I-9 form. There is no change to the number or types of documentation required.
As this crisis progresses, the guidance is changing weekly, daily or hourly in some cases. We will strive to keep you updated as needed.
Contact the attorneys at McMillan Metro at (301) 251-1180 for more information.