Updated March 25, 2020
Employers face multi-faceted challenges as they manage the outbreak of COVID-19 and its effect on their workforce and business. Below we’ve answered frequently asked questions for employers and compiled key resources for employers to stay up to date on the current coronavirus outbreak.
Answers to Employer Frequently Asked Questions:
Which employers are covered under the Families First Coronavirus Response Act (FFCRA)?
The FFCRA applies to (1) certain public employers and (2) all private employers with fewer than 500 employees. The Department of Labor also has the option of exempting companies with fewer than 50 employees if providing paid leave “would jeopardize the viability of the business as a going concern.” Rulemaking is underway to provide guidance on how the Department will determine who meets that threshold. Certain health care providers and emergency responders may be excluded. Additionally, employers with less than 25 employees may not have to restore employees to their previous positions if certain criteria are met. To see more about the FFCRA, read here.
How do I know if I my business is allowed to stay open or if I can have any workers work under Washington’s Stay Home, Stay Healthy Order?
Governor Jay Inslee issued the Stay Home, Stay Healthy Order on March 23, 2020. The Order directs all residents to stay home from midnight on March 25, 2020 through midnight on April 8, 2020 (unless extended further) except for essential activities or employment in essential business services. Employment in essential business services means an essential employee performing work for 1) an essential business as identified in the “Essential Critical Infrastructure Workers” list or 2) carrying out minimum basic operations for a non-essential business.
The list of “Essential Critical Infrastructure Workers” can be found here, but generally includes: healthcare/public health; emergency services; food and agriculture; energy; water and wastewater; transportation and logistics; communications and information technology, critical manufacturing, hazardous materials, financial services, chemical, defense industrial base, and other community-based government operations and essential functions.
Minimum basic operations under the Order are those minimum activities necessary to maintain the value of the business’ inventory, preserve the condition of the business’ physical plant and equipment, ensure security, process payroll and employee benefits, facilitate employees of the business being able to continue to work remotely from their residences, and related functions.
Businesses and employees that do not fit into these categories must not work or must work from home. Determining whether your workers or businesses fit into these categories may require assistance from your counsel for interpretation and the latest guidance.
Is Governor Inslee’s Stay Home, Stay Healthy Order a triggering event under the FFCRA?
The two-week Emergency Paid Sick Leave provisions under the FFCRA apply to an employee who is subject to a federal, state, or local quarantine or isolation order related to COVID-19. As of yet there has been no official guidance on whether a shelter-in-place order or a stay-at-home order qualifies, but it is likely the Stay Home, Stay Healthy Order, which orders residents’ isolation, will qualify. Other states have found similar orders to qualify. There may be additional information on this in the coming days, prior to the April 1, 2020 effective date of the FFCRA.
Can I still terminate or lay off employees, even with the enactment of the FFCRA and Governor Inslee’s Stay Home, Stay Healthy Order?
Yes. An employer’s right to terminate or lay off an employee has not, as of this writing, changed. An employer can terminate or lay off an employee because business has slowed and the employer has made the decision to reduce its workforce. It can also terminate employees for performance issues or other such reasons. Employers cannot, however, terminate or lay off an employee for a reason which would violate federal, state, or local anti-discrimination or anti-retaliation laws (including an employee’s request for leave related to COVID-19). Governor Inslee has stated he is working on legislation to protect vulnerable workers and provide them the “legal right to stay home” related to COVID-19, but no such legislation is pending or enacted as of yet. Employers also should consider any applicable employment agreements or collective bargaining agreements which may affect their ability to terminate employees.
Can I put employees on standby (a temporary layoff) and what happens if I do?
Yes, you can put employees on standby. Standby is a temporary layoff status employers can elect instead of a permanent layoff. Standby allows employees to claim unemployment during their temporary layoff without the requirement to look for other work during the layoff. The temporarily laid-off employees need to remain available for any work their employer may offer while they are on standby. Standby is usually limited to eight weeks in a claim year, but under the Washington Employment Security Department’s new emergency rules, temporary shut-downs related to COVID-19 are considered extraordinary circumstances and grounds for an extension of the eight-week time limit. Employers who temporarily lay off their employees due to COVID-19 may be eligible to receive reimbursement of unemployment benefits instead of charging those benefits to the employer’s experience rating account if the employee is temporarily laid off as a consequence of COVID-19, the employer requests the employee be put on standby status, and the employee returns to the same employment he or she had prior to the temporary layoff. The new emergency measures have also waived the one-week waiting period for unemployment claims and have extended standby status to part-time employees.
What options do employers have if they’re considering cutting employees’ hours due to COVID-19?
To be eligible for partial unemployment, where an employee would not have to look for work while receiving unemployment benefits, an employee must have a reduction of hours of no more than 60%, earn a certain amount less than their weekly benefit amount, and be expected to return to full-time work within 4 months. For more information, on benefit and earnings deduction calculations, ESD has provided the following resources: benefits calculator and earnings deduction chart. It is possible that an employer could lower an employee’s hours, but not in an amount significant enough to qualify that worker for unemployment benefits.
If I decide to lay off employees, how do I comply with WARN Act requirements in light of COVID-19?
Employers who are typically subject to the federal WARN Act (i.e., those with 100 or more full-time employees, subject to certain caveats) must provide 60 days’ notice of an “employment loss” if there is a closure, layoff or furlough impacting 50 or more employees for six or more months. One exception to the 60 day notice requirement is for situations when the layoffs occur due to unforeseeable business circumstances. What constitutes an “unforeseeable business circumstance” is not defined in the Act, but business impacts from COVID-19 may qualify. The exception still requires the employer to provide as much notice as practicable, and a brief explanation of why the 60 day notification period cannot be met. Employers who believe they may be subject to WARN should consult with legal counsel to determine whether WARN is triggered and whether the exception applies, and also to ensure appropriate notices are provided even if a notice exception can be supported.
Can employees use their Washington sick/safe leave or their PTO to care for children when schools and daycares are closed due to COVID-19?
Yes. Washington’s sick/safe leave permits employees to use accrued paid sick leave if their child’s school or place of care is closed for a health-related reason, although employers cannot require employees to use this sick/safe leave. Also, the FFCRA requires most employers to provide certain paid leave, in addition to leave already offered, during absences due to school closure arising from COVID-19. Please see our article here for more information on FFCRA requirements.
What are other resources Washington State employers can turn to regarding employer concerns and obligations?
Local & Federal Resources:
- Governor Inslee’s “Stay Home, Stay Healthy” Order
- Governor Inslee’s “Stay Home, Stay Healthy” list of “Essential Critical Infrastructure Workers“
- Washington State’s Official COVID-19 site, maintained by the state Joint Information Center
- COVID-19 and the American Workplace, U.S. Department of Labor, Wage & Hour Division
- Families First Coronavirus Response Act: Questions and Answers, U.S. Department of Labor, Wage & Hour Division
- COVID-19 or Other Public Health Emergencies and the Fair Labor Standards Act Questions and Answers, U.S. Department of Labor, Wage & Hour Division
- COVID-19: Information for workers and employers, U.S. Department of Labor, Occupational Safety and Health Administration
- COVID-19: Workplace and Employer Resources & Recommendations, Washington State Department of Health
- Washington State Employment Security Department: for workers and businesses affected by COVID-19
- COVID-19 Resources for Employers, Association of Washington Business
- King County Public Health Recommendations
- Centers for Disease Control and Prevention (CDC)
- Guidance from the EEOC created during the 2009 H1N1 situation
Ryan Swanson Alerts:
- COVID-19: Options for Commercial Property Owners in Washington, Oregon, and California, Ryan Swanson Bankruptcy, Finance & Restructuring Alert
- President Trump Signs Coronavirus Aid, Relief and Economic Security Act (CARES Act) into Law, Ryan Swanson Bankruptcy, Finance & Restructuring Alert
- COVID-19: Resources for Washington Businesses, Ryan Swanson Business Alert
- Employer Obligations Under the Families First Coronavirus Response Act, Ryan Swanson Employment Law Alert
- COVID-19 & Your Automobile Dealership: Resources and Dealer FAQs, Ryan Swanson Auto Dealership Alert
- Premium Processing for All I-129 and I-140 Petitions Temporarily Suspended Due to the Coronavirus Pandemic, Ryan Swanson Immigration Alert
- DHS Provides COVID-19 Exceptions to I-9 Compliance, Ryan Swanson Immigration Alert
- U.S. Embassies and Consulates Cancel Visa Appointments Due to COVID-19 Outbreak, Ryan Swanson Immigration Alert
- USCIS Suspends In-person Services, Ryan Swanson Immigration Alert
- Canada Cancels All Routine Nonimmigrant Visa Appointments and Restricts International Travel, Ryan Swanson Immigration Alert
- COVID-19 Travel Ban Impacting Travel from Europe, Ryan Swanson Immigration Alert
- Impact of Coronavirus on Travel from China to U.S., Ryan Swanson Immigration Alert
- COVID-19: Options for Distressed Small Businesses in Washington, Oregon, and California, Ryan Swanson Bankruptcy, Finance, & Restructuring Alert
If you have questions, please feel free to contact any member of the Employment Rights, Benefits & Labor Group at Ryan Swanson.
This webpage is provided for general informational purposes only and does not constitute legal advice.