As Wisconsin’s Governor Evers has issued a “Safer At Home Order“, Minnesota businesses are scrambling to determine whether, in the event Governor Walz issues a similar executive order, their employees will be exempt from such order. Why does this matter? It allows employers to keep employees working (to an extent) and require that they maintain their normal work schedule. The DHS CISA guidance specifically notes President Trump’s Coronavirus Guidance for America which states:

If you work in a critical infrastructure industry…you have a special responsibility to maintain your normal work schedule

As expected, Gov. Evers included all businesses on the Department of Homeland Security’s Cybersecurity & Infrastructure Security Agency (CISA)list of 16 critical infrastructure sectors during COVID-19. This is a list that most states (that I’ve seen) have included in their list of businesses that may remain open in the event of a shut-down. Below is the list and a few sub-items for businesses:

  1. Chemical Sector
  2. Commercial Facilities Sector
  3. Critical Manufacturing Sector
    1. Primary metals manufacturing
    2. Machinery manufacturing
    3. Electrical equipment, appliance, and component manufacturing
    4. Transportation equipment manufacturing
  4. Dams Sector
  5. Defense Industrial Base Sector (note, if your business is a supplier/subcontract within this sector, you will likely get a letter from the government contractor confirming this – I have seen several already sent to MN employers)
  6. Emergency Services Sector
  7. Energy Sector
  8. Financial Services Sector
  9. Food and Agriculture Sector
  10. Government Facilities Sector
  11. Healthcare and Public Sector
    1. Workers such as plumbers, electricians, exterminators, and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences.
    2. Support to ensure the effective removal, storage, and disposal of residential and commercial solid waste and hazardous waste
  12. Information and Technology Sector
  13. Nuclear Reactors, Materials, and Waste Sector
  14. Transportation System Sector
    1. Employees who repair and maintain vehicles
    2. Automotive repair and maintenance facilities
    3. Manufacturers and distributors of packaging materials, pallets, crates, containers, and other supplies needed to support manufacturing, packaging staging and distribution operations.
  15. Water and Wastewater Systems Sector

If Minnesota gets to this point, I will certainly expand upon this in another post.

Update: To determine whether your business is a critical business under the Minnesota Stay-At-Home Order, read my next blog here.

Minneapolis has issued a FAQ regarding COVID-19 and the Minneapolis Sick and Safe Time Ordinance. In short, the document outlines how the city of Minneapolis is “interpreting” the ordinance as it relates to earned sick and safe time (ESST). While I believe they are taking some liberties with their interpretation of the ordinance, employers should know what guidance the city is providing…

ESST Should Be Approved For:

  • Coronavirus symptoms, testing or infection for both themselves and care of a covered family member.
  • Covered family members’ school or place-of-care closure.
  • Workplace closure by order of public official.
  • Quarantine following close personal contact with Coronavirus infected or symptomatic person.

Other Guidance:

  • Employers may expand the reasons they allow use of ESST (for example, if work hours reduced).
  • Employers are “encouraged to be flexible with employees wherever possible” (translated: you cannot err by allowing the use of ESST – remember once it is used it is gone).
  • Preemptive self-quarantine is not covered (i.e. if they have no reason to believe they are sick).

Finally, despite the ordinance, employers should not forget about FMLA, EFMLA, emergency paid sick leave and other possible leaves that may apply.

 

When navigating the Families First Coronavirus Response Act (“FFCRA”), Minnesota employers should not forget about Governor Walz’s Executive Order 20-02. This order states that district schools must provide care to, at a minimum, district-enrolled students 12 and younger of emergency workers. The state has classified (so far) workers into “Tier 1” and “Tier 2” in this guidance.

What does this mean? Tier I workers will not need the 12 weeks of EFMLA (I hesitate to say exempt), as they do not need leave to care for a minor child (unless the child is 13-17 and their parent is unwilling to leave their child alone). Similarly, Tier I workers would not need emergency paid sick leave (see my other blog) for reason #5 (to care for child whose school closed).

TIER 1 WORKERS

  • Healthcare personnel (PCAs, pharmacy, mental health)
  • Emergency medical services personnel (full-time)
  • Law enforcement / firefighter personnel
  • Correctional services
  • Courts (full-time employees)
  • Public Health

TIER 2 WORKERS

Minnesota has further clarified (though not an order from the Governor) that schools “should make every effort” to provide care to “school-aged children” of Tier 2 workers (not the actual guidance expands upon each of the below which I’m not going to specifically post). Thus, if an employee has a school district that is willing/able to provide care for Tier 2 workers they also should not need EFMLA:

  • Educators, child care workers
  • State and local essential IT personnel
  • State workers essential for continuance of unemployment insurance
  • Substance disorder treatment workers
  • Medical examiners
  • National Guard (if activated)
  • MNDoT employees
  • Public works
  • Water treatment, wastewater
  • Solid waste and infectious and hazardous waste management
  • Day-to-day operations/emergency response for gas and electric utilities
  • Food distributions workers
  • Other shelter staff and outreach workers
  • Telecommunication network operations

In short, if you are a Tier I business, it is unlikely that your employee should need EFMLA. If you are a Tier I business, it would depend on whether your employee(s) can get school coverage at their district for their child(ren).

On March 17, 2020, Minnesota Governor Tim Walz issued Emergency Executive Order 20-06 – Providing for Emergency Relief from Regulations to Motor Carriers and Drivers Operating in Minnesota.  This executive order provides relief for certain safety requirements to motor carriers providing direct assistance to support emergency relief efforts.  Notably to carriers reading my blog, this affects not only weight restrictions but also hours of service.  Below is a summary, as usual, the link to the order is above. And a huge thank you for what you do!

  • Effective for 30 days (until April 17, 2020).
  • Vehicles and drivers providing direct assistance for emergency relief efforts are exempt from certain regulations (see the order).
  • “Direct assistance” means – “transportation by a motor carrier or its driver(s) incident to the immediate restoration and/or delivery of essential supplies including food, medical supplies, and household items, related to the COVID-19 pandemic.”
    • It does not include routine commercial deliveries, transportation of mixed loads (including non-emergency items).
  • Among other things, it relaxes regulations relating to:
    • Weight restrictions.
    • Hours of service for carriers and drivers.
  • However, a motor carrier cannot “require or allow a fatigued or ill driver to operate a commercial motor vehicle.”
  • The exemption ends when the driver or vehicle used is no longer destined for the emergency relief effort or when dispatched to another location to begin operations in commerce.
  • If requested, a driver who states they need immediate rest shall be relieved of all duties for 10 consecutive hours.
  • Upon expiration of the executive order, all such drivers must receive at least 10 hours off duty.

Minnesota Governor Tim Walz has issued a series of emergency executive orders (8 as of the date of this post) relating to COVID-19 that impact Minnesota employers. One very important to Minnesota employers is Emergency Executive Order 20-05Providing Immediate Relief to Employers and Unemployed Workers During the COVID-19 Peacetime Emergency

Effectively March 16, 2020, the executive order suspends “strict compliance” with the Minnesota Unemployment Insurance Law until December 31, 2020.

  • Applicants are eligible for unemployment benefits if:
    • A determination has been made by health authorities or by a health care professional that the presence of the applicant in the workplace would jeopardize the health of others, whether or not the applicant has actually contracted a communicable disease;
    •  A quarantine or isolation order has been issued to the applicant;
    • There is a recommendation from health authorities or by a health care professional that the applicant should self-isolate or self-quarantine due to elevated risk from COVID-19 due to being immunocompromised;
    • The applicant has been instructed by their employer not to come to the employer’s place of business due to an outbreak of a communicable disease; or
    • The applicant has received a notification from a school district, daycare, or other childcare provider that either classes are canceled or the applicant’s ordinary childcare is unavailable, provided that the applicant made reasonable effort to obtain other childcare and requested time off or other accommodation from the employer and no reasonable accommodation was available.
  • The unpaid waiting week is suspended (it will be paid “as quickly as possible).
  • Recipients of unemployment do not need to actively seek suitable employment that puts their health or safety at risk, or that of others.  Workers that have been laid off temporarily may meet this requirement by staying in contact with their employer.
  • Unemployment benefits paid as a result of COVID-19 will not be used in computing the future unemployment tax rate of a taxpaying employer.
  • The five-week benefit limitation is waived for business owners.
  • The executive order is in effect during the peacetime emergency declared in Executive Order 20-01.

It should also be noted that due to the large volume, the State is encouraging employees that they can apply “any day this week or even next week and get paid for this week.” More information from Minnesota Unemployment Insurance can be found here.

As time goes on, I will do my best to update you all with questions I am asked frequently about the Families First Coronavirus Response Act (Families First Act or FFCRA) which includes the Emergency Family and Medical Leave Expansion Act (EFMLA) and the Emergency Paid Sick Leave Act (SPSLA).  This post will be updated continuously with my read of the Families First Act as much as I am able (you’d be surprised how many employers think they are the first to ask a question – I assure you, you are not alone!).

  1. Is the 80 hours of paid sick leave in addition to PTO/vacation/sick time already offered? YES.  The EPSLA specifically states that an employee “may first use” the paid sick time (for COVID-19 reasons) and an employer “may not” require them to use other leave first.  Sec. 5102(e).
  2. When counting 500 employees for EFMLA, does the 75 mile rule apply as with FMLA? NO. For purposes of EFMLA, the term “eligible employee” is all employees who have been employed for 30 days – the exclusion for employees who work at a worksite of less than 50 employees within 75 miles of another worksite was stricken.
  3. Does the revision to the 500 employee threshold (versus 50) change the FMLA?  NO. The EFMLA only changes the FMLA definitions “with respect to leave under section 102(a)(2)(F)”.
  4. Does it apply to non-profit corporations?  YES.  Section 7001 and 7003 allow for the “refundability of excess credit”.  Though, you should contact your CPA if you have questions – I am not a tax attorney!
  5. What is the Effective Date?  April 2, 2020 – December 31, 2020.
  6. Do employers of 500+ employees have to provide EFMLA, even though they do not get a tax credit?  NO.  Employers with 500+ employees do not need to provide EFMLA and are ineligible for the tax credit.
  7. When will the DOL regulations be published regarding whether employers of less than 50 employees are exempt?  According to the DOL website, this is anticipated in “April 2020”.  Given it goes into effect April 2, hopefully by April 1.
  8. Is the 12 weeks EFMLA in addition to FMLA, for a total of 24 weeks?  NO.  It just adds another reason for FMLA for a broader group of employees.

On March 18, 2020, President Trump signed the Families First Coronavirus Response Act (Families First Act or FFCRA) into law which, among other things, amends the Family Medical Leave Act (FMLA) with the Emergency Family and Medical Leave Expansion Act (EFMLA). Here is what employers need to know about Public Health Emergency Leave (“PHEL”):

  • Employees must have been employed for 30 calendar days with the employer.
  • Applies to employers with LESS THAN 500 employees.  However, the DOL has the authority to issue regulations to exempt small businesses (less than 50 employees) when the imposition of EFMLA would jeopardize the viability of the business as a going concern, and certain health care providers and emergency responders.
  • Employee must have a “qualifying need related to a public health emergency”.
    • “the employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency [COVID_19].”
      • Child care provider must be someone who receives pay to take care of a child on a regular basis.
  • The first 10 days are unpaid.  Employees “may elect” to substitute any accrued vacation, PTO, personal leave, sick or medical leave for these 10 days.
    • Note, it does not state that employers may require use of PTO, etc.
  • After day 10, leave is paid after that at an amount “not less than” 2/3rds of an employee’s regular rate of pay (there are specifics in the Act on how to calculate for employees with varying hours).
    • Capped at $200/day and $10,000 in the aggregate per employee (which equals the employer tax credit).
    • Employers signatory to a multi-employer CBA may make contributions to a multiemployer fund, plan or program (read the Act for more info on this).
  • An employee of an employer with less than 25 employees who takes EFMLA does not need to be restored to their position if certain conditions are met (which is another blog for a later day).
  • Ends on December 31, 2020.
  • Employers who are not subject to the FMLA (under 50) cannot be sued by employees for violation of Emergency FMLA as they have no private right of action. However, the DOL may still investigate and sue on their behalf.

EFMLA is one of several in the Families First Act that will impact employers. See my other blogs for details regarding the Emergency Paid Sick Leave Act and Tax Credits for Paid Sick and Paid Family and Medical Leave.

In addition to my blog about the Emergency Family and Medical Leave Expansion Act (EFMLA), the Families First Coronavirus Response Act (Families First Act or FFCRA) also contains the Emergency Paid Sick Leave Act (EPSLA).  Emergency paid sick time (EPST) will go into effect 15 days after the Families Act is enacted – April 1, 2020. The EPSLA applies to employers with less than 500 employees and generally works as follows (obviously summarized here for your reading pleasure):

  • Every employee is entitled to employer-paid sick time if they are unable to work (or telework) because of COVID-19 and they are:
    1. Subject to a quarantine or isolation order.
    2. Advised to self-quarantine by a health care provider.
    3. Experiencing symptoms.
    4. Caring for an individual subject to (1) or (2) above.
    5. Caring for a son or daughter whose school or child care was closed or whose child care provider is unavailable.
    6. Experiencing any other “substantially similar condition”.
  • Full-time employees are entitled to 80 hours of paid sick time.
    • The definition of “employee” and “employer” under the EPSLA are too specific for this general blog audience. If your business is in a unique situation, read the Act or call an attorney for interpretation.
  • Part-time employees are entitled to “a number of hours equal to the number of hours that such employee works, on average, over a 2-week period.”
  • Caps on paid sick time – employers do not need to pay more than:
    • $511 per day and $5,110 in the aggregate for the use for reasons 1-3 above.
    • $200 per day and $2,000 in the aggregate for the use in reasons 4-6 above.
  • Rates to pay:
    • The employee’s regular rate (as defined by the FLSA) or minimum wage, whichever is greater.
      • For part-time employees, it is an average (see the Act).
    • For paid sick time related to reasons 4-6 above, the required compensation is only 2/3rds of the employee’s regular rate.
  • Employers signatory to a multiemployer bargaining agreement may make contributions to the multiemployer fund, plan or program (see the Act for more details).
  • Does not carry over into 2021.
  • Paid sick time “shall cease beginning with the employee’s next scheduled workshift immediately following the termination of the need for paid sick time” set forth in 1-6 above.
  • Employers may not require employees to find a replacement for their shift.
  • Paid sick time must be available to the employee “immediately” regardless of how long the employee has been employed by the employer.
  • Employees may first use paid sick time before PTO, vacation/sick time – and cannot be forced to first use other paid time off banks if available. A word of caution – given the generous nature of the leave, I think it is safe to presume that any employee who uses their normal paid time off instead of paid sick time is going to draw some red flags in an investigation that they were not allowed to use paid sick time (because why would they? There is zero upside to an employee using PTO versus paid sick time for one of the reasons above).
  • Notice poster must be posted (the DOL will have a notice available with 7 days).
  • Shocker…employers cannot retaliate or discriminate against employees who use this leave or file a complaint about the same.
  • Violation is considered the same as violating minimum wages and unlawful termination under the FLSA. Which means employers who violate this Act are liable for the backwages – doubled, plus having to pay an employee’s attorneys’ fees (plus your own attorneys’ fees, among other things). In other words, you don’t want to mess this up…
  • The DOL Secretary must issue guidelines within 15 days following enactment.
  • After any portion of the first workday that an employee receives paid sick time, an employer may require an employee “follow reasonable notice procedures in order to continue receiving such paid sick time”.
  • Applies to employers with LESS THAN 500 employees.  However, the DOL has the authority to issue regulations to exempt small businesses (less than 50 employees) when the imposition of paid sick time would jeopardize the viability of the business as a going concern, and certain health care providers and emergency responders.
  • The Act expires on December 31, 2020.

I held off as long as possible, but it seems like we are getting inundated these past few days with wage and time off questions relating to Coronavirus – COVID-19 as it moves into Minnesota. So, below is my take on the situation, and an overview of considerations for employers. As always, be sure not to discriminate against employees based on race, etc. when addressing such issues – if you make one person in a department work remotely, they should all work remotely.

Fair Labor Standards Act – Deductions From Pay & Paid Time Off

The Department of Labor (DOL) has issued a FAQ regarding COVID-19 and public health emergencies as it relates to the Fair Labor Standards Act (FLSA). It is actually a great article and I’d encourage employers to review it. In short, hourly employees get paid by the hour, so naturally, they are not due any wages for hours not worked. Employers may force the use of paid time off (PTO) or sick time and vacation, unless your Handbook or other policy specifically prohibits that. However, of course it is never that easy during a pandemic.

Employers want to keep employees happy during such a situation that is out of everyone’s control, and thus, may want to consider allowing employees to go negative PTO. What is that?  That is when an employer pays an employee for time off, but once the employee returns to work, any PTO accrued is first taken applied to the PTO they took but hadn’t yet earned. Employers could also make a special policy in light of the current pandemic to allow employees to chose either unpaid time off (UPTO) or negative PTO.

Deduction from wages for absences of salaried employees is much more tricky (that could easily be its own blog). The DOL has addressed this in their FAQ (linked above). In short, as long as a salaried employee works any time in a week, you should not deduct their salary for an office closure. However, you may deduct their salary for full weeks in which they perform no work. Keep in mind that remote work (phones, iPads, etc.) is still work (and thus paid). Employees must be completely disconnected from working.

Family Medical Leave Act

The DOL has also issued a great FAQ regarding Family Medical Leave Act (FMLA) and COVID-19.  Again, the best quick resource is to read that, though I’m happy you’re still reading my blog this far… In general, employers covered under FMLA need to remember to offer FMLA to employees who need leave for their own serious medical condition (which could include COVID-19 if a physician signs off on the certification – typically when there are complications from it) or to take care of their spouse, child, or parent who has a serious health condition.  Some states like Wisconsin have their own FMLA policy that may offer the employee greater coverage (i.e. domestic partner and parents of spouses/domestic partners) so don’t forget to review the law of the state that the employee is located if you are a Minnesota-based employer with a national workforce.

Minneapolis Sick and Safe Time Ordinance

Employers who fall under the Minneapolis Sick and Safe Time Ordinance should remember that employees may use their earned sick and safe time (ESST) for caring for a family member during emergency closure of school or place of care. Thus, if an employee’s child’s school closes due to an infectious disease outbreak, they should be allowed to use sick and safe time for those days (as long as they have time left to use). Update – Minneapolis has now come out with its own FAQ related to ESST and COVID-19 which you can read here.

St. Paul Earned Sick and Safe Time Ordinance 

The St. Paul Earned Sick and Safe Time Ordinance similarly allows for the use of ESST for caring for a family member whose school or place of care has been closed due to unexpected closure. As you may know, the St. Paul Federation of Teachers announced they were to strike effective March 10. St. Paul took the position that because the strike was noticed in advance it was not an “unexpected closure”. Thus, by that logic, St. Paul may take the position that ESST will only be applicable in a school closure situation when it is unexpected (i.e. no notice is given) versus advance notice (i.e. we will close after spring break for another week). However, I would like to think that would not happen and St. Paul will follow Duluth’s lead (read below) and encourage the use of ESST for COVID-19 absences. From an employer perspective, the use of ESST is not a bad thing as you will not have an interference claim, discrimination claim, and that liability will be off the books once used.  As of March 23, 2020, St. Paul has not yet come out with a FAQ related to COVID-19 and its ESST.

Duluth Earned Sick and Safe Time Ordinance

Duluth does not have the same provision as St. Paul and Minneapolis regarding school closures. However, it has issued ESST and COVID-19 Frequently Asked Questions. Duluth has taken the position that an employer may allow an employee to use ESST for reasons not covered by the ordinance – certainly implying that an employer could allow an employee to use it for school closures related to the Coronavirus or other infectious disease pandemic.

School Closures & Other Approved Time Off

Employers who are not under the purview of a sick and safe leave ordinance may always allow employees greater flexibility than the law. In other words, employers may allow employees to use negative PTO as addressed above, they may allow the use of ESST or sick time for school closures, they may allow an approved, unpaid leave of absence, or working remotely. Employers may go above and beyond and will want to consider the health and safety of its workforce when making such decisions (i.e. temporarily stopping absenteeism points to encourage employees to stay home when ill). At the end of the day, employers should treat all employees the same, consider long-term employee retention when enacting or enforcing policies, and remember the duty to maintain a safe workplace.

Blog Updates

Finally- if you would like to get my blogs delivered to your email, feel free to subscribe.  On the right side of the blog there is a “Stay Connected” box – you can type your email in there.  While it’s usually set for Wednesday updates, I will be moving to daily updates during the COVID-19 pandemic to keep you all informed.

In the past week there was nothing really Earth-shattering as far as wage and hour updates, but certainly some updates to note:

  • MnDOLI issued a reminder to employers that most Minnesota employers are subject to both state and federal wage laws…employers must review both laws (and ordinances) to ensure compliance!  For example, unlike FLSA:
    • Minnesota does not allow any partial-day absence deductions for salaried (exempt) workers.
    • Minnesota does not have a computer exemption (I have this conversation with employers often)…and computer geniuses may be genius but whether they are exempt is another matter.
    • Minnesota does not have a “highly compensated” worker exemption.
    • The Wage Theft Prevention Act’s employee notice form requires employers to state the actual basis for the exemption (administrative, executive, professional) – be sure it is not “computer” or “highly-compensated”!  And no, “exempt” is not sufficient.
    • The Minnesota Rules (5200.0190.0200 and .0210) provide for the various duties test for executive, administrative or professional under Minnesota law.  Again, this is not the same as FLSA…two totally different tests.
  • The City of Minneapolis has published its final versions of the Minneapolis Wage Theft Prevention Ordinance FAQs and Rules (though they are unchanged from the version published January 24, 2020.
  • The Minnesota Department of Labor & Industry (MnDOLI) has issued a Notice of Correction to its commercial wage rates for prevailing wages applicable to jobs advertised to be on or after January 27, 2020.  All prevailing wage contractors should be signed up to receive MnDOLI’s wage rate notifications (at the link above).
  • The NLRB is expected to issue its final rule tomorrow (February 26, 2020) regarding its joint-employer standard under the National Labor Relations Act – this is a huge reversal and restores decades of decisions prior to 2015.