Punching In: Paid Leave, Jobless Benefits Prescribed for Virus

Monday morning musings for workplace watchers

Paid Leave Child’s Play | Short-Timers | PPE for the Gig Economy

Chris Opfer: Businesses still have almost two weeks before the Labor Department starts enforcing new Covid-19 paid sick and family leave requirements, but worker advocates and plaintiffs’ lawyers aren’t necessarily planning to honor the same grace period. In the meantime, there’s still some uncertainty about the coronavirus relief law, which took effect April 1.

“The burning questions that my clients are grappling with deal with the effect of shelter-in-place orders on paid sick and leave laws,” Littler Mendelson attorney Jeff Nowak told me.

States are taking those orders seriously. In New Jersey, for example, a woman who reportedly went for a quick stroll outside of the house to throw a Molotov cocktail through her boyfriend’s window was charged with violating the state’s stay-at-home order, among other offenses.

The DOL in a new regulation and guidance said some workers covered by shelter-in-place orders are eligible for the sick and family leave. Nowak and Jon Hyman, an employment lawyer at Meyers, Roman, Friedberg & Lewis in Ohio, said they expect that group to be limited.

“If you work for a ‘nonessential’ business that is closed, you’re not entitled to the paid leave because there is no work available,” Hyman said. “If you work for an ‘essential’ business that’s still open, the stay-at-home order needs to be the cause of you staying out of work.”

Those circumstances will be limited because shelter-in-place orders generally allow “essential” workers to continue to go to work. Hyman said there may be exceptions for older workers in situations where the order specifically states that people over a certain age should stay home.

Companies that are providing the new Covid-19 leave can also start seeking tax credits. Internal Revenue Service guidance on those credits has left some experts scratching their heads about the limits of required childcare related leave. The IRS says employers seeking the credit for leave provided to an employee “based on a school closing or child care provider unavailability” for a child over the age of 14 years old must show that “special circumstances exist requiring the employee to provide care.”

That seems to contradict Labor Department guidance that the leave is available for employees caring for family members that are 18 or younger.

“There is a huge hole right now between what the IRS and what the DOL is saying about the age limits,” Hyman said.

Ben Penn: A subspecialty field is starting to emerge in the labor and employment universe: unemployment insurance. There hasn’t been much interest in tracking UI in recent years, thanks to a booming economy. Now that Covid-19 has caused millions of workers to file jobless claims, there’s suddenly a big demand for expertise on the topic.

Folks at management law firms and industry trade groups are taking a UI crash course to respond to swirling questions from clients and members. Worker rights’ groups and legal aid offices already have some unemployment benefits wonks in their ranks who are working tirelessly to help assist workers who need help filing claims.

It’s not easy to navigate the complexities of the longstanding federal-state UI system to begin with, let alone now that it’s intersecting with a handful of brand new unemployment programs created by pandemic relief legislation. As we wait for more guidance from the DOL and states continue to update their systems to process the spike in claims, there are naturally more questions than answers.

In this state of purgatory, it’s instructive to take a look at who is making inquiries of the department and what they’re asking. That’s why I was intrigued to learn that the businesses have been expressing interest in one of the virus stimulus law’s less-heralded jobless aid provisions: the layoff aversion program called short-time compensation (AKA “work sharing”).

Nearly 30 states already have STC laws on the books, allowing employers to reduce hours for groups of workers who can then seek prorated unemployment benefits. The latest relief package offers states $100 million in administrative support for those programs, full federal reimbursement of claims for existing state work share programs, and 50% reimbursement for the remaining states that decide to create the program in response to Covid-19.

The business community has already suggested that the department maximize short-time compensation participation by allowing companies approved for STC in one state to get automatic waivers for programs across the rest of the country. That idea might require separate legislation, but we’ll be keeping a close watch on whether short-time compensation is the workforce game changer some people think it could be.

Jaclyn Diaz: No sooner had the ink dried on the $2 trillion CARES Act than just about everyone, including business groups, lawmakers, unions, and my neighbor down the hall, started talking about what should be included in the fourth coronavirus response bill.

I talked a bit last week about early discussions to include broader worker safety provisions, paid sick leave provisions (even though Republicans say that ship has sailed), and investments in worker retraining.

Democrats cinched a big win by getting independent contractors, like gig economy workers, eligible for unemployment assistance—a benefit they generally can’t tap, otherwise. They want to build on that achievement for the next bill, one House committee aide told me.

More Americans are couch-bound as states implement new stay-at-home orders. That means more people are turning to gig workers to deliver their food and other essentials.

“Our position is a lot of those workers have been misclassified,” the aide said, referring to their status as contractors who don’t get the same work protections and benefits granted to employees. “We’re trying to make sure they are getting benefits they should be getting if they were classified correctly.”

Democrats are mulling the best ways to extend worker safety protections and paid sick leave benefits for gig workers. That includes potentially getting them access to personal protective equipment.

Although a fourth virus relief measure is seeming more and more likely by the day, the details on what might be in that legislation seem to be changing by the hour.

We’re punching out. Daily Labor Report subscribers can check in during the week for updates. In the meantime, feel free to reach out to us. See you back here next Monday.

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