Congress Enacts COVID-19 Paid Leave Entitlements

by Jonathan Mook
DiMuroGinsberg, PC
The coronavirus has wreaked havoc throughout the country, creating significant hardships on employees and employers alike as businesses adjust to the new world in which persons are advised to “shelter in place.” To help alleviate the situation, Congress recently passed the Families First Coronavirus Response Act (“FFCRA”), which creates two new types of paid leave for employees: (1) Expanded Family and Medical Leave and (2) Emergency Paid Sick Leave. To assist employers in paying for the newly created paid leave entitlements, employers will be eligible to receive tax credits in connection with their employee payroll tax filing.

Here’s a summary of what the new leave entitlements provide:

Who Is Eligible?

In general, employees of private sector employers with fewer than 500 employees, and certain public sector employers, are eligible for up to two weeks of fully or partially paid sick leave for COVID-19 related reasons. Employees who have been employed for at least 30 days prior to their leave request may be eligible for up to an additional 10 weeks of partially paid expanded family and medical leave.

What Are the Qualifying Reasons for Leave?

To be a qualifying reason, the leave must be related to the COVID-19 pandemic, and the employee must be unable to work (including unable to telework) for one of the following reasons:

  1. Is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  2. Has been advised by a health care provider to self-quarantine related to COVID-19;
  3. Is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
  4. Is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
  5. Is caring for his or her child whose school or place of care is closed (or child care provider is unavailable) due to COVID-19 related reasons; or
  6. Is experiencing any other substantially-similar condition specified by the U.S. Department of Health and Human Services.
What Are the New Paid Leave Entitlements?

Generally, employers covered under the Act must provide employees:

Up to two weeks (80 hours, or a part-time employee’s two-week equivalent) of paid sick leave based on the higher of the regular rate of pay, or the applicable state or Federal minimum wage, paid at:

  • 100% for qualifying reasons Nos. 1-3 above, up to $511 daily and $5,110 total;
  • 2/3 for qualifying reasons Nos. 4 and 6 above, up to $200 daily and $2,000 total; and
  • Up to 10 weeks more of paid sick leave and expanded family and medical leave paid at 2/3 for qualifying reason No. 5 above, up to $200 daily and $12,000 total.

A part-time employee is eligible for leave for the number of hours that the employee is normally scheduled to work over that period.

Tax Credits

Covered employers qualify for dollar-for-dollar reimbursement through tax credits for all qualifying wages paid under the FFCRA. Qualifying wages are those paid to an employee who takes leave under the Act for a qualifying reason, up to the appropriate per diem and aggregate payment caps. Applicable tax credits also apply to amounts paid or incurred to maintain health insurance coverage.

Enforcement

Employers may not discharge, discipline, or otherwise discriminate against any employee who lawfully takes paid sick leave or expanded family and medical leave under the FFCRA. The U.S. Department of Labor (DOL) will investigate and enforce compliance with the FFCRA.

Notice

Employers are required to post a notice informing employees as to their entitlement to both Expanded FMLA and Emergency PSL. For those employees who are teleworking, the notice can be emailed to them or placed on an intranet site and employees notified to view it there. The DOL has issued a poster for employers to use to provide the required notice to their employees.

Additional Information

If you would like to receive a copy of the DOL poster, or have any questions about the new leave requirements, please contact DiMuroGinsberg’s Employment Law Practice Leader, Jonathan R. Mook at jmook@dimuro.com.

Covid-19 and The Rush to Remote Office Work, The Basics.

by Zachary Deubler
DiMuroGinsberg, PC
Offices around the country are shutting their doors and directing staff to work from home as the World Health Organization on Friday confirmed more than 132,000 cases of COVID-19 (COVID-19) worldwide and declared the outbreak a world-wide pandemic. Recently, the Centers for Disease Control and Prevention is urging a nationwide halt to gatherings of more than 50 people for the next eight weeks. With this rush to remote work, small and medium-sized law firms have been put in a tough spot. Firms are faced with difficult questions. Should I close my office? How quickly can we transition to remote work? What policies are (or should be) in place regarding remote office work?

In many instances, asking attorneys to work from home is a relatively easy matter. If an attorney has a laptop, internet connection and phone; remote work is not difficult. However, this assumes there are still support staff at the office fielding calls, submitting filings and other traditional office support. Typically, these individuals, which can be the backbone of a small firm, are only setup for in-office work—i.e. they don’t have a laptop, firm phones, or remote computer access. Moreover, how do you handle your physical front desk and the phones that need to be answered?

Certainly, there is no “one size fits all” approach and each individual law firm must make the choice that feels right for them. Moreover, these decisions are even tougher for small and medium -sized firms without dedicated IT departments to help them develop a plan moving forward. However, for these small and medium-sized firms, moving to a remote office is not as hard as one might think.

Remote Office Policy:

Whether a firm already has a remote office program in place or is looking into options for the future, it’s absolutely vital that firms spell out the details of their program up front. The first step is establishing clear expectations for whatever policy you choose to adopt. There must be clearly defined parameters so that managers, supervisors and workers all understand the rules; such details include expected work hours and which work options will be available—i.e. via phone or video conferencing, etc.

Another minefield that needs attention is the recording of hours for both salaried and hourly employees. Just because an employee is working from home, that does not mean they will not be paid their normal wages. Separate issues may arise between workers with salaried positions and those with hourly positions. Finally, the issue of expenses can be a particularly sensitive subject when it comes to remote work; costs such as personal mobile phone data used in connection with work on an employee’s non-business plan, or the cost of purchasing a computer compatible with the business’s network are all things that must be considered in the development of any policy.

Whether you are drafting a new policy or revising your current policy to conform with current events; it is critically important that you consult an employment law expert while drafting your policy. DiMuroGinsberg has decades of experience with counseling employment law related issues in the Northern Virginia and D.C. metro area and stands ready to answer questions about remote office policy and related business inquires that may arise during this national health crisis.

Remote Computer Access:

The simplest solution for remote file access to your firm’s computer network is a dedicated VPN. Many firms already have such a service in place. However, just because your firm has a VPN already established does not mean you are ready for mass remote connections. Every firm has an internet provider who provides the office with access to the internet. However, like your home internet plan, your office’s internet is “throttled” to the speed that is paid for within the plan. There are two relevant internet speeds, download speeds—how fast can your computer pull something from the internet, and upload speeds—how fast can your computer push information to the internet. For most of us in our daily lives, we are concerned with the former, download speeds—relevant for downloading files, programs, emails and streaming audio and video. However, a productive and reliable VPN connection relies primarily on upload speeds; this is because your computer is pushing files, remote desktop sessions and other information out from your office’s network to your home computer and/or laptop, In most cases, a firm purchases a single internet “hook-up” or pipe from their service provider in which all information flows (both in and out) and the internet speed plan controls how fast (and how much) information is allowed to pass through the pipe at any given time. If your firm does not have sufficient upload speeds, an increased number of VPN remote connections will render remote work horribly slow and unstable. As such, and as more firms debate remote offices, it is important that firms consult with their internet service provider now to ensure they have sufficient upload speeds to enable multiple simultaneous outside connections for remote work.

Though VPNs are a fantastic service, many smaller firms have not invested in the network hardware to make them possible; and if faced with the sudden decision about whether to close, managers might not have time to hire a vender to install the necessary hardware and software to make the VPN work. Not to worry, there are currently services available that offer many of the same benefits of a VPN—i.e. remote access to office networks—without the need to purchase or set-up additional hardware. Many of these services can be set-up in a matter of minutes and offer plans that range from month to month, to yearly. One of the best-known venders in this area is GoToMyPC1, which allows users to access their office computer’s desktop though a secure connection and can work on both Macs and PCs.

Phone Services

In addition to having remote access to work files, firms still must be able to answer their incoming calls even if there is no front desk receptionist. Some businesses have sophisticated phone systems, such as Voice over Internet Protocol (“VoIP” Phones), which allow incoming calls to be automatically redirected to cellphones and home landlines. However, many small firms still have traditional landline-based phone systems without advanced features that allow for automatic call routing, hence the need for the phone answering service. There is a myriad of phone answering services available with a range of plans and features available to suit every firm’s needs. The greatest benefit of these services is that you can keep your firm’s current phone numbers. Simply have your phone system forward all calls to the answering service provider and allow your vender to handle the rest. These phone services can take messages, route calls to cell and home phones and make appointments—anything an in-person front desk receptionist currently does. Many service providers offer monthly and custom plans, so you can engage their services in a cost-effective manner.

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Conclusion

While there is a lot of uncertainty surrounding COVID-19 and its effects on our national and local economies, DiMuroGinsberg stands willing and able to handle the legal concerns of our clients and the community at large during this difficult time. If you have questions regarding employment issues surrounding your business decision to work remote, or if you have general inquiries regarding other legal matters reach out to us at (703) 684-4333 and we would be happy to assist you.

The Coronavirus and DiMuroGinsberg

DiMuroGinsberg is taking the Coronavirus seriously, while trying to continue business as seamlessly as possible. For that reason, we have instituted the following measures to ensure the safety of our clients, attorneys, colleagues, and friends:

  • If you have an appointment at our offices and are not feeling well, please let us know and we will change it to another day or to a phone or video conference—whichever is most convenient for you.
  • If you simply would rather not care to go out for a meeting, again we’re happy to set up a conference call or a video conference for you.
  • Our staff is dedicated to keeping our offices clean. We wipe down surfaces, door knobs and handles, etc. daily to ensure the safety of our staff and clients.

We at DiMuroGinsberg are all joining together to help our clients, employees, colleagues, and friends stay free of the Coronavirus. If you have any questions or concerns about these efforts, please contact our Director of Operations, Michele Kraftschik at mkraftschik@dimuro.com.

If you have any questions about dealing with the impact of the Coronavirus on your business operations or employees, you should contact your attorney or DiMuroGinsberg’s Jonathan Mook at jmook@dimuro.com. Also, check out our article entitled, “The Coronavirus –How Do We Manage It?” which can be found on our website.

DGRead 20.03.15

Coronavirus, Oh My!; Rocket Docket Update; Noncompetes—Are They Enforceable?; DG/30 Milestone

The Coronavirus —How Do We Manage It?

by Stephanie West
DiMuroGinsberg, PC

Are you one of those people that washes your hands every chance you get in order to ward off Coronavirus? And, are you well-stocked at home and ready to be quarantined for a month if necessary?

OR

Are you someone who thinks this Coronavirus scare is a bunch of brouhaha about nothing?

Whichever type of person you are, Coronavirus (COVID-19) will Impact you whether you are freaked out or not. In many stores, medicines, bleach and even popular canned goods can’t be had. Travel is affected. Conferences are being cancelled right and left. Offices and schools are closing…new rules everywhere you look and they change day by day. (Today, it was the NBA, March Madness and Broadway!)

What is COVID-19 anyway? It is believed that COVID-19 is a virus that was originally contracted from an animal and then transmitted from human to human. Its symptoms range from mild to severe respiratory symptoms, fever, cough, shortness of breath, and breathing difficulties. In severe cases, the virus has led to pneumonia and kidney failure and has resulted in an increasing number of deaths. The Center for Disease Control (CDC) believes at this time, that symptoms may appear within two to fourteen days after exposure. However, some infected individuals have shown little to no symptoms at all.

What is there to be done in the workplace? What if we get quarantined? As business owners, we must find a way not only to have our employees work from home (the easy part for some) but to have the infrastructure work off-site as well. Employees are worried and want to know we have a plan. So, show them you do.

Following are some guidelines and suggestions from the CDC:

  • Actively encourage sick employees to stay home:
    • Employees who have symptoms of acute respiratory illness should stay home and not come back to work until they are free of fever (100.4 or greater using a thermometer) and any other symptoms for at least 24 hours, without the use of fever-reducing or other symptom-altering medicines, like cough suppressants.
    • Your sick leave policies should be flexible and consistent with public health guidance and make sure that your employees are aware of them.
    • Companies that provide contract employees to your firm should be both aware of your policies and follow them.
    • Don’t require a note from a healthcare provider for an employee to return to work during this time. Health providers are too busy to provide these notes and they might not be able to provide them in a timely fashion.
    • Maintain flexible policies that permit employees to stay home to care for a sick family member. Be aware that this might be a more frequent occurrence during these times.
  • Separate sick employees
    • The CDC recommends that employees who appear to have acute respiratory illness symptoms, like a cough, shortness of breath, etc. upon arrival to work or become sick during the day, should be separated from other employees and should be sent home immediately.
    • Sick employees should cover their noses and mouths with a tissue when coughing or sneezing (or use an elbow or shoulder if no tissue is readily available).
  • Respiratory etiquette and hand hygiene by all employees:
    • Provide tissues and no touch disposal receptacles for your employees.
    • Provide soap and water and alcohol-base hand rubs in the workplace. Ensure that adequate supplies are maintained. Place hand rubs in multiple locations or in conference rooms to encourage hand hygiene.
    • Instruct employees to clean their hands often with an alcohol-based hand sanitizer that contains at least 60 – 95% alcohol, or wash their hands with soap and water for at least 20 seconds.
  • Perform routine environmental cleaning:
    • Routinely clean all frequently touched surfaces in the workplace, such as workstations, countertops, and doorknobs.
    • No addition disinfection is recommended at this time.
    • Provide disposable wipes so that commonly used surfaces (doorknobs, keyboards, desks, remotes) can be wiped before each use.
  • Advise employees before traveling to take certain steps:
    • Check the CDC’s Traveler’s Health Notices (https://www.cdc.gov/coronavirus/2019-ncov/travelers/index.html)for the latest guidance and recommendations for each country to which you will travel.
    • Advise employees to check themselves for symptoms of acute respiratory illness before starting travel and notify their supervisor and stay home if they are sick.
    • Ensure employees who become sick while traveling or on temporary assignment understand that they should notify their supervisor and should promptly call a healthcare provider for advice if needed.
    • If outside the US, sick employees should follow your company’s policy for obtaining medical care or consult a healthcare provide or overseas medical assistance company to assist them with finding an appropriate healthcare provider in that country. A US consular officer can help locate healthcare services. However, US embassies, consulates, and military facilities do not have the legal authority, capability, and resources to evacuate or give medicines, vaccines, or medical care to private US citizens overseas.
  • Additional Measures in Response to Currently Occurring Sporadic Importations of the COVID-19:
    • Employees who are well but who have a sick family member at home with COVID-19, should notify their supervisor and refer to CDC guidance for how to conduct a risk assessment of their potential exposure.
    • If an employee is confirmed to have COVID-19, employers should inform fellow employees of the possible exposure to COVID-19 in the workplaces but maintain confidentiality as to the identity of the person, as required by the Americans with Disabilities Act (ADA). Employees exposed to a co-worker with confirmed COVID-19 should refer to CDC guidance for how to conduct a risk assessment of their potential exposure.

Speaking of the ADA, what are the special requirements under the ADA during a pandemic? Even though seemingly innocent questions asked about an employee’s health for protection purposes might seem alright to you, it’s not alright according to the ADA. Following are some things to watch out for:

  • Employees with disabilities should be included in planning discussions and employer communications concerning pandemic preparedness. Those communications should be accessible to disabled employees.
  • You may not ask any disability-related questions specifically, when figuring which employees might not be available during a pandemic. You may ask questions that are not disability-related such as: who may have issues with transportation or child-care or simple yes or no answers where a detailed description of which item is the problem is not stated specifically.

The basic rule here is to treat the disabled person the same as you would treat any other employee, unless they ask for a special accommodation. Then you must assess whether the accommodation is reasonable in the situation. For example, if the employee asks to work at home, the job can be done at home, and the workplace could be a hazard to them, that is a reasonable accommodation to the employee.

As this pandemic ebbs and flows, winds and grows and hopefully dies out soon, be prepared with a plan that works for your company. Use the CDC as a guide. Clearly, these suggested steps won’t work for all companies. Get a team together (if you haven’t already done so) and make decisions about how you will handle situations as they arise.

At DiMuroGinsberg, we stand ready to provide advice and assistance should it prove necessary as you make steps to combat the Coronavirus We can help you make sure your work place is a safe environment within which your employees will be working during these uncertain times. Please feel free to contact one of our attorneys about matters that may arise.

Good luck and keep washing your hands!

Are your noncompetes enforceable? Government contractors face fresh scrutiny

by M. Jarrad Wright
DiMuroGinsberg, PC

Noncompete agreements can be an effective way to protect your business if former employees or independent contractors are working for a rival business and using the skills, information, and contacts they acquired while working for you. A recent Virginia Circuit Court decision, however, highlights the need for companies that do government contracting to reevaluate the legality of their existing noncompetes. In the case, Fairfax County Circuit Judge John M. Tran invalidated a government contractor’s noncompete for being unduly restrictive and overbroad in violation of public policy. The decision offers a number of lessons to help you avoid seeing your noncompetes meet a similar fate.

Facts

The Metis Group was one of several government contractors receiving a blanket purchase agreement to provide psychological services to the U.S. Army. The agreement allowed the Army to enter into various types of task orders to the contractors, which competed to provide the services.

The Metis Group had been awarded several task orders. To service the orders, the company entered into independent contractor agreements with several doctors and/or their practices. The independent contractor arrangements contained a noncompete providing that upon termination of the agreement by either party, the contractor would not seek to perform psychological services for the Army for 24 months. After the Metis Group’s task orders ended, the Army didn’t renew them. Nevertheless, the company’s independent contractor agreements with the doctors remained in force.

Approximately a year and a half later, the Metis Group discovered the doctors with whom it had contracted were providing psychological services to the Army for a competitor that had been assigned a task order. The Metis Group sued the doctors claiming they were violating their noncompetes. The doctors responded by asking the court to dismiss the lawsuit because the agreements they had signed were unenforceable.

Noncompetes ‘perpetuate a monopoly’

The court granted the doctors’ request and invalidated the noncompetes. Why? Judge Tran explained the agreements weren’t limited to preventing the doctors from seeking to provide psychological services in competition with the Metis Group. Instead, they prevented the doctors “from engaging in any professional services with the United States Army anywhere in the world for any purpose, whether or not such purposes compete with [Metis’] business model.”
Accordingly, Judge Tran found the noncompetes were “designed to perpetuate a monopoly” so that the Metis Group would be “the only contractor able to provide such services.” Consequently, the judge said the restrictive covenants violated public policy, explaining a “contract that prohibits a party from seeking employment at the time the employer had no work for the contractor and did not offer to subsidize the contractor’s livelihood is almost unconscionable.” The Metis Group, Inc. v. Allison, 2020 Va. Cir. LEXIS 6.

Lessons to be learned

The case presents a cautionary tale if you are engaged in government contracting and rely on independent contractors to fill positions and do the work. To gain a competitive advantage, government contractors often team together and attempt to lock in key independent contractors (who have specialized knowledge or skills) through covenants not to compete. After Metis Group, that strategy may not be worth the risk your noncompete will be struck down.

  • Instead, you should follow two principles in drafting enforceable noncompetes:
  • Limit the covenants to the specific programs or contracts at issue.Tailor the employee nonsolicitation provisions to cover services that actually compete with your company.

In Metis Group, the restrictive covenants ran afoul of both principles.

Bottom line

Take immediate steps to consult with experienced employment counsel to review the restrictive covenant language in your agreements with independent contractors working on a government contract. In consultation with counsel, make sure:
The restrictions aren’t overbroad;
The contract language actually fits the task at hand; and
The restrictions don’t unduly limit the independent contractor’s livelihood after the work for you is completed.

Following the above rules should allow you to put noncompete agreements in place that are enforceable and will protect your legitimate business needs.

Editor’s note: For more information about the law governing noncompete agreements, please see the following Virginia Employment Law Letter articles: “Noncompete void if employee misclassified as independent contractor” (December 2016), “Virginia court voids employer’s noncompete” (June 2017), “Alexandria court upholds VA employer’s noncompete, nonsolicitation agreements” (August 2018), and “Court enforces drone company’s nonsolicitation agreement” (December 2018).

M. Jarrad Wright is an attorney with DiMuroGinsberg PC and a contributor to Virginia Employment Law Letter. He may be reached at mjwright@dimuro.com.