As HR professionals we know you are at the forefront of navigating the new normal for organizations and businesses small and large across our region. We hope the following resources will be useful to you in this ever-changing environment. New York City SHRM will be updating this COVID-19 Resources Page as developments warrant.
Coronavirus (COVID-19) is an unprecedented challenge for employers. We’ve put together some links for NYC SHRM Members to help you manage:
Federal Court Strikes Down 4 DOL Rules on FFCRA Leave
Definitely a news item to keep an eye on: A federal court in New York recently struck down four federal Department of Labor (DOL) rules related to the leaves provided by the Families First Coronavirus Response Act (FFCRA). As a result, certain aspects of the FFCRA are now more favorable to employees. Unfortunately, it’s not clear if the ruling applies nationwide or only in the Southern District of New York, where that court is located. Until there is further activity in the case—which may clarify whether the rules remain intact throughout the rest of the country—it’s recommend that employers err on the side of caution when administering FFCRA leaves and assume these particular rules no longer apply.
What is clear is that these four rules definitely do not apply to the counties of Bronx, Dutchess, New York, Orange, Putnam, Rockland, Sullivan, and Westchester (i.e., the Southern District of New York).
Here are the rules that the court invalidated:
1: The requirement that work be available for an employee to use leave
DOL Rule: The DOL said that for an employee to use Emergency Paid Sick Leave (EPSL) or Emergency Family and Medical Leave (EFMLA, aka EFMLEA), the employer had to have work available for them during the time they needed leave. For instance, if an employee was furloughed while sick with COVID-19, they would not be eligible for EPSL.
The Court’s Ruling: Availability of work is irrelevant. If an employee is still employed, whether on the schedule or not, they should be allowed to use FFCRA leave for qualifying reasons.
2: The requirement that employers agree to intermittent leave
DOL Rule: Employees must get approval from their employer to use intermittent leave to care for their children when their school or place of care is unavailable because of COVID-19.
The Court’s Ruling: If an employee needs intermittent leave (partial weeks or partial days off) to care for their child whose school or place of care is unavailable because of COVID-19, the employer must allow it.
3: The requirement that employees provide documentation before taking leave
DOL Rule: Employers could require that employees provide certain documentation before being allowed to take FFCRA leave or before designating the leave as EPSL or EFMLA.
The Court’s Ruling: Employers can still require documentation (which is necessary to get their tax credit), but they can’t prevent an employee from starting leave until the documentation is received. The law clearly states that an employee must provide notice “as is practicable” when taking EFMLA leave and after the first workday of leave when taking EPSL.
4: The definition of health care provider, for the purpose of exemption from leave
DOL Rule: The DOL had defined health care providers broadly, to include anyone who works for a healthcare entity and many who contract with one. (The rule was so broad that a custodian working at a drugstore or an English professor at a university with a medical school could be exempt.)
The Court’s Ruling: The definition is too broad. However, the court did not provide a new definition. We recommend that employers apply the exemption only to those employees capable of directly providing healthcare services.
On July 13, 2020, the New York City Department of Health released frequently asked questions about face coverings and directed New Yorkers to wear a face covering whenever they are with other people when they are indoors, not at home, even if six feet of distance can be maintained. The FAQs also address what a face covering is, who must wear a face covering, and their use in the workplace. Of note, these recommendations may change as the COVID-19 pandemic evolves.
On May 14, 2020, New York Governor Andrew Cuomo announced that nonessential businesses in each region will reopen in stages and Phase One of that reopening will begin on May 15, 2020. Eligibility for reopening will be determined by health metrics for each region. Additionally, essential businesses and business activities that are open will remain open.
Lawmakers from both sides of the aisle supported making changes to the PPP to address complaints from employers that the existing rules were unfeasible. The U.S. House of Representatives passed the bipartisan Paycheck Protection Program Flexibility Act (PPPFA) in a 417-1 vote on May 28, and the Senate passed the bill by unanimous consent on June 3. The law gives employers more flexibility when using Paycheck Protection Program (PPP) funds and applying for loan forgiveness. Some key changes include an extension from the 8 week forgiveness period to a 24 week forgiveness period, a decrease in the minimum amount that must be spent on payroll from 75% to 60%, an increased loan maturity from two years to five years for new PPP loans and an extended deadline to rehire staff.
CityMD’s COVID-19 Return-To-Work Clearance Exams are available at all 120 CityMD locations.
To mitigate the risk of a recurring outbreak of COVID-19 infections as people return to work, CityMD is offering corporate return-to-work evaluation exams at all locations. This will allow you as the employer to select the testing option that works best for your company and receive medical clearance for your employees to safely return to work. Click on the CityMD logo to learn more about testing options.
If you, a friend, or loved one is uninsured and has no access to affordable healthcare, CIGNA and Express Scripts have rolled out a program called Parachute RX during the Covid-19 pandemic. This is a way to lower costs on certain generic medications and select brand name medications. Click on the Logo to learn more about this program.
Links to resources that the state and city have made available.
New York State
- New Paid Leave for COVID-19
- New York State Department of Health
- 5 Steps to Prepare for COVID-19
- Cleaning and Disinfection Guidance for Public and Private Facilities
- Interim Guidance for Procedures When Identifying an Employee with Concerns for COVID-19 Exposures
- Protect yourself from COVID-19 and stop the spread of germs: English, Spanish, Bengali, Chinese, Haitian, Korean, Russian
- Department of Labor
- Unemployment Insurance (seven-day waiting period for Unemployment Insurance benefits for people who are out of work due to COVID-19 closures or quarantines)
- New York State Unemployment Insurance – CARESAct Enhanced Unemployment Insurance (UI) and NYS Pandemic Unemployment Assistance (PUA) Flow Chart
- NYS Unemployment Insurance – CARESAct Answers to FAQ’s
- Office of the Attorney General
- New York City Health Dept Info
Links to resources that the federal government have made available.
Keep up to date on CDC guidance for specific industries, latest updates, and resources on the Coronavirus Disease 2019 (COVID-19) main page.
The U.S. Department of Labor (DOL) has created a resource page for workers and employers. The DOL’s Wage and Hour Division has a web page that explains how the Family and Medical Leave Act applies in cases of COVID-19 and other public health emergencies, and a web page that explains how the Fair Labor Standards Act applies in the same circumstances. Fact Sheet #70 provides answers to frequently asked questions regarding furloughs and other reductions in pay or hours worked.
The U.S. Equal Employment Opportunity Commission (EEOC) has created a landing page entitled What You Should Know About the ADA, the Rehabilitation Act, and COVID-19, which provides links to resources and guidance.
The U.S. Occupational Safety and Health Administration (OSHA) has created a COVID-19 website for workers and employers that addresses the disease and provides guidance and other resources for preventing exposure to and infection with the virus.
Small Business Administration
The U.S. Small Business Administration has issued guidance entitled SBA Disaster Assistance in Response to the Coronavirus, explaining how the SBA is offering designated states and territories low-interest federal disaster loans for working capital to small businesses suffering substantial economic injury as a result of the coronavirus (COVID-19). Also see Coronavirus (COVID-19): Small Business Guidance & Loan Resources.