CORONAVIRUS RESOURCE SITE
EMPLOYMENT LAW CONSIDERATIONS
Your workforce is one of your greatest assets. Our multidisciplinary team of experienced employment, labor, and benefits practitioners provide answers to your questions and offer pragmatic guidance to prepare your business to manage the legal, human, and safety threats of COVID-19.
Emergency Relief Legislation
Families First Coronavirus Response Act – Emergency FMLA
City of Denver Emergency Action
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Activities essential to the health and safety of individuals and household members (including pets), such as obtaining medical supplies or medication or visiting health care professionals; -
Activities to obtain necessary services or supplies for individuals or household members, or to deliver those services or supplies to others, including food, pet supplies, and other household consumer products; -
Outdoor activities like walking, hiking, biking, or running – but no group sports or activities – and assuming individuals comply with social distancing requirements; -
Providing essential products and services at the site of an "Essential Business," or otherwise carrying out activities specifically permitted under the order; and -
Caring for family members or pets in another household.
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healthcare operations, essential infrastructure, and essential government functions; -
grocery stores and liquor stores; -
food and plant cultivation; -
businesses providing food, shelter, and social services for the economically disadvantaged; -
media services; -
gas stations and other auto-supply or auto-repair businesses; -
banks and financial institutions; -
hardware stores; -
plumbers, electricians, exterminators and other service providers providing services to maintain the safety, sanitation, and essential operation of residences and "Essential Businesses;" -
businesses providing mailing and shipping services; - educational institutions for purposes of facilitating distance learning or performing essential functions;
- laundromats, dry cleaners, and laundry service providers;
- restaurants and other facilities that prepare and serve food, but only for delivery, take-out, or drive thru;
- businesses supplying products needed for people to work and learn from home (e.g., technology suppliers providing hardware or software essential for communication or connectedness);
- businesses supplying other essential businesses with the support or supplies necessary to operate;
- businesses shipping or delivering groceries, food, goods, or services directly to residences;
- licensed medical marijuana stores and retail marijuana dispensaries;
- airlines, taxis, and other private transportation providers;
- home-based care for seniors, adults, or children (but not nannies or babysitters except in limited circumstances);
- residential establishments and facilities, including hotels, motels, and shelters for seniors, adults, and children;
- professional services such as legal, insurance, accounting, or tax preparation services where necessary to assist in compliance with legally mandated activities;
- faith-based establishments and houses of worship;
- childcare facilities providing services enabling employees exempted from the order to work as permitted (and subject to specific rules for operation).


Colorado Emergency Action
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The Executive Order does not apply to any employer that can certify that its employees “are no closer than six feet from one another during any part of their work hours.” CDPHE is developing a certification method, with penalties for providing false information. -
Critical workplaces are also exempt. Critical workplaces are: -
Health care operations, including but not limited to hospital, clinics, walk-in health facilities; home health care companies; pharmaceutical and biotechnology companies; pharmacies, and others. But it does not include health clubs, fitness and exercise gyms, and similar facilities. -
Critical Infrastructure, including utilities, fuel supply and transmission, public water, telecommunications, transportation, hotels, organizations that provide for disadvantaged people, and food supply chain. -
Critical Manufacturing, including food, beverages, chemicals, medical equipment, pharmaceuticals, sanitary products, agriculture. -
Critical Retail, including grocery stores, liquor stores, farms, gas stations, restaurants and bars for takeout, marijuana dispensaries but only for medical or curbside delivery, hardware stores. -
Critical Services, including trash and recycling, mail, shipping, laundromats, childcare, building cleaning and maintenance, auto supply and repair, warehouses/distribution, funeral homes, crematoriums, cemeteries, animal shelters and rescues. -
News Media. -
Financial Institutions. -
Providers of Basic Necessities to Economically Disadvantaged Populations. -
Construction. -
Defense. -
Public Safety Services like law enforcement, fire prevention and response, EMTs, security, disinfection, cleaning, building code enforcement, snow removal, auto repair. -
Vendors that Provide Critical Services or Products including logistics, childcare, tech support, or contractors with critical government services. -
Critical Government Functions.
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Disaster Relief/Charitable Assistance for Employees
Such a fund must serve the single purpose of providing assistance to employees and their family members who are suffering from a “qualified disaster,” as defined in section 139. It must also meet certain other legal requirements, including a requirement that grant recipients be selected based on an objective determination of need and by an independent selection committee or using adequate substitute procedures to ensure that any benefit to the employer is incidental and tenuous.
As noted above, the COVID-19 pandemic has been federally declared to be a “disaster” in certain locations and the IRS has stated that the COVID-19 pandemic is a “qualified disaster” for purposes of section 139. Thus, donor advised funds organized exclusively to provide relief from COVID-19-related hardships may make distributions to employees nationwide who are suffering from the pandemic.
As noted above, the COVID-19 pandemic has been federally declared to be a disaster in certain locations and the IRS has stated that the COVID-19 pandemic is a “qualified disaster” for purposes of section 139. Thus, an employer-sponsored private foundation could provide financial assistance directly to employees and their families nationwidewhere such employees and their families been affected by the COVID-19 pandemic
The financial assistance payments can be made by the foundation to employees and their families as long as certain safeguards are in place to ensure that such assistance serves charitable purposes, rather than the business purposes of the employer. In addition, the payments can only be made to employees or their family members affected by qualified disasters, not in non-qualified disasters or in emergency hardship situations.
DOL Guidance for FFRCA
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For leave due to a quarantine or isolation order, the employee must provide the name of the governmental entity that issued the order. -
For leave based on the advice of a health care provider to self-quarantine, the employee must provide the name of the provider. -
For leave to care for an individual who is subject to a quarantine or isolation order, or who is self-quarantined on the advice of a provider, the employee must provide the name of the governmental entity that issued the order or the provider that advised self-quarantine. The regulations do not directly require the employee to provide the name or relationship of the individual the employee will care for, but that information should be required as part of the explanation of the qualifying reason. -
For leave to care for a child whose school is closed or child care provider is unavailable, the name of the child, the name of the school, place of care or childcare provider; and a statement that no other suitable person will be caring for the child during the leave period. Notably, the Internal Revenue Service’s Q&A about the documentation employers need to support a request for tax credits adds a requirement that the employer obtain a statement that “special circumstances exist” requiring the employee to provide care when an employee requests leave to care for a child over 14 years of age during daylight hours.”


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the employee's name; -
qualifying reason for requesting leave; -
statement that the employee is unable to work, including telework, for that reason; and -
the date(s) for which leave is requested.
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the employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19; -
the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; -
the employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis; -
the employee is caring for an individual who either is subject to a quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self- quarantine due to concerns related to COVID-19; or -
the employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.


FFCRA DOL Healthcare Update
Healthcare Employers Spared Burden of FFCRA By Last Minute DOL Guidance
Families First Coronavirus Response Act - Sick Leave
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The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19. -
The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19. -
The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis. -
The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2). -
The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the childcare provider of such son or daughter is unavailable, due to COVID-19 precautions. -
The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.




Families First Coronavirus Response Act - Tax Credits
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Employers to retain (and not deposit) all federal payroll tax deductions for the payroll period: the federal income tax withheld from all employee wages, employer Social Security and Medicare taxes, and employee Social Security and Medicare withheld from all employee wages. -
If the amount of such payroll taxes is not sufficient to cover the cost of the qualifying leave paid for the period, employers may file a Form 7200 and request a refund of remaining tax credit from the IRS. -
Employers may file several Forms 7200 during a quarter to claim an advance payment of the tax credit the employer will claim on the Form 941 for that quarter. Refunds should be issued within 2 weeks of filing the Form 7200.
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Employers must satisfy significant recordkeeping requirements in order to substantiate the tax credits claimed for paying qualifying leave. Employers should retain these records for at least 4 years. These records include how the employer determined whether employees were entitled to qualifying leave, calculated the credit, and determined allocable health costs. Employers should retain copies of any Forms 7200 filed with the IRS and the Forms 941 upon which credits were claimed. -
Employers claiming a tax credit must obtain a statement from the employee substantiating that the leave request constitutes qualifying leave. This statement should include the employee’s name, the applicable dates of the requested leave, the COVID-19 related reason the employee is requesting leave with written support for such reason, and a statement that the employee is unable to work, including by means of telework, for such reason. -
If employees are requesting leave due to a quarantine, the employee must provide the agency or person requiring such quarantine. -
If the employee is requesting leave due to a school closure, the employee must provide the name and age of the student, the name of the closed school, and a description of the circumstances that require the employee to take care of the student.
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Policies and Procedures
Work From Home
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Employers should consider what types of work positions are conducive to working remotely, considering job duties, access to systems or files, and ability to complete tasks by email or telephone.
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Generally, only employees in good standing based on prior performance, attendance records, and ability to work without significant direct supervision are good candidates. Employees working remotely should be trustworthy and self-starters.
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Employers can set a minimum tenure requirement, such as working for the employer for 90-days, in order to be eligible to work from home (otherwise, the employees who do not meet such a tenure requirement may be subject to other types of leaves or reductions in force).
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Employees who do not maintain sufficient performance or comply with the work from home policy or requirements, may not remain eligible to work from home.
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All eligibility decisions are made at the full discretion of the employer.
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Be clear that employees are expected to maintain the work performance requirements listed in their job descriptions or as outlined by their manager.
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Set expectations (even if temporarily lowered to account for a shorter workday, lower production level, or the reality that if schools are shut down, there will be other distractions for the employee).
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Be clear that employees are expected to dedicate a quiet, secluded, and disturbance free home-work “office” to the extent possible. Distractions from children, animals, or other disturbances should be minimized during the work from home-work schedule.
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Employers should consider whether they will provide all necessary equipment; if they do, then employers can ensure that all required security, firewall, and other IT considerations are in place. A process for returning equipment when employment ends should be defined.
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Consider whether employees will be required to have high-speed Internet or a dedicated land-line (if requiring a land-line on an emergency basis such as a COVID-19 shutdown, it may not be a realistic requirement depending on the relevant phone company’s availability).
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If employees are allowed to use their own equipment and computer, the employer should set out specifically the data security requirements and programs that the employee must utilize, download, etc.
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Determine what company systems the employees can and should be allowed access to while working remotely.
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Implement increased security measures, if possible, to lock down the most mission-critical employer data from being accessed by any unauthorized individuals remotely.


Pay Practices
Pay Issues During COVID-19
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the paid leave would cause the employer’s expenses and financial obligations to exceed available revenues and cause the business to cease operating at a minimal capacity; or -
the absence of the employees requesting leave would pose a substantial risk to the financial health or operational capacity of the business because of the employees’ skills, knowledge, or responsibilities; or -
the small business cannot find enough other workers to perform the work of the employees requesting leave and this work is necessary to keep the business operating at minimal capacity.


Anti-Discrimination
Sick Leave
Retaining Employer Discretion to Modify Workplace Policies
I-9 Verification Policy and USCIS Signatures
Executive Order On Immigration
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Do not have either an immigrant visa that is valid as of the effective date above, OR -
Do not have an official travel document other than a visa (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on the effective date above, or issued on any date thereafter that permits them to travel to the United States and seek entry or admission.
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Foreign nationals living and working in the United States who seek to become green-card holders -
Additionally, the order will not affect the adjudication of PERMs, I-140s, or I-485s for these individuals
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Foreign nationals currently in the United States on non-immigrant visas (such as H-1B, L-1, or TN visas) -
Foreign nationals outside the U.S. seeking to enter the United States on non-immigrant visas (such as H-1B, L-1, or TN visas) -
Agricultural H-2A guest workers -
Lawful permanent residents or green card holders -
Foreign nationals who seek to enter the United States on an immigrant visa for a position in the healthcare field (physician, nurse, medical research) or a related field that helps to fight COVID-19, and their spouse and unmarried children under 21 years old -
Foreign nationals applying for the EB-5 Immigrant Investor Program -
Foreign national who is the spouse of a United States citizen or who is under 21 years old and is the child of a United States citizen -
Asylees, refugees, or Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment applicants -
Foreign nationals in the United States Armed Forces and any spouse and children of a member of the United States Armed Forces -
Foreign nationals entering for national interest purposes
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The order indicates that no later than 50 days from April 23, 2020 (June 12, 2020) the Secretary of Homeland Security, Secretary of State, and Secretary of Labor will recommend whether the order will be continued or modified. -
The order also states that within 30 days of April 23, 2020 (May 23, 2020) the Secretary of Homeland Security, Secretary of State, and Secretary of Labor will “review nonimmigrant programs” (such as H-1B, TN, and L-1 visas) and recommend other measures to stimulate the U.S. economy and ensure the prioritization, hiring, and employment of United States workers.


Employee Benefits
Health, Welfare, and Other Benefits