Attorney Clifford Hammond of Foster Swift Collins & Smith, PC joined us on Facebook to talk about the impact of the Coronavirus on employers.
Clifford Hammond is a member of Foster Swift’s Employers Services practice group in the Southfield and Lansing offices where he focuses his practice on employment and labor law counsel and litigation. He has extensive experience with the National Labor Relations Act, Michigan Employment Relations Commission, Federal and State Courts, State and Federal administrative agency proceedings, collective bargaining, arbitration, mediation, union avoidance, employment litigation, and dispute resolution.
Learn more: fosterswift.com
Julie: Good afternoon. Welcome to our special Facebook series called expert connexions. We launched this series just over a week ago as conditions started to evolve, we quickly realized that our team could help connect our community, our clients, with experts who have answers. I’m Julie Holton, founder and principal strategist of mConnexions marketing agency. We’re just like you, we are all feeling the impact of COVID-19 so we’re helping in the best way we know how by talking about the changes and challenges that we are all facing from coronavirus. We are so glad to have you joining us. This is definitely a time when we need to gather information from sources that we trust. Our guest today is a trusted partner of mConnexions. Cliff Hammond is a labor and employment attorney with Foster Swift where he spends time in the firm’s Lansing and Southfield offices. Cliff thank you so much for taking the time to join us today.
Cliff: Thank Julie, no problem.
Julie: Well in just the last two hours, Michigan Governor Gretchen Whitmer announced what she called a stay safe, stay home executive order and I’m sure that those of you who are watching have a lot of questions about this. You can use the chatbox to go ahead and ask your questions, we will answer them as we go. So, Cliff, I want to start focusing on some employment questions. First of all, what are the obligations under the family’s first coronavirus response Act?
Cliff: Sure it’s pretty robust actually, but when you get down to it it’s pretty simple. Really for employers, the two things you have to know about is, it gives employees a bank of time that they can use. It’s additional to anything that you have currently. So if you have 500 employees or less and that’s a question you probably have to get into with your counsel of whether you or aren’t if you’re close to 500, but specifically we have 500 employees or less there are about six different things that employees will now be entitled to up to 80 hours of lead, depending of your full time or not might be prorated essentially if you have an employee who works a little bit less and they give you some guidelines in this new rule right there in a statute of how to do that and basically what they say is if you have a state, federal, or local quarantine like guess what we do coming up here in Michigan, you might be eligible for up to 80 hours a week. There’s some other things you have too. Obviously if you have a doctor’s note that says hey you have to be self-quarantine, that would be qualified. Obviously don’t let the person come and work anyway if the doctor said, so that’s not that complicated. If you’ve got to care for somebody who is under an order under number one, which is the thing we just talked about, which is a state, local, or quarantine or something like an individual that you’re caring for. If you have children, a son or daughter, in K through 12 whose school has been closed because of an emergency with COVID-19, that’s gonna be covered as well. Including things like child care for maybe kids that are even younger than that if you don’t have that and then anything else that might be covered under some sort of decoration that’s close to the COVID-19. For the most part that’s really what this is all about and what the law basically says is if a person has one of those qualifying events, then you give them this leave and they get the leave, it’s before you start taking the rest of their money out of their PTO account, of their vacation account, the time off account, you can’t substitute that they are eligible to use that first. So that’s the first and I think it’s pretty simple if you look at it from that way. The other one obviously, I skipped over this, but I think it’s pretty clear. If I have symptoms of COVID-19 and I’m seeking medical treatment obviously while I’m having that I want to go ahead and get excused for that as well and I get to use this same sick Blankley. The good news is the federal government will give you a credit for that when it comes time for taxes, so supposedly it’s a zero-sum game. If you can survive and you confront the cash as an employer or small employer, then you’re in on that. The second change the law was about the FMLA and employers who are under 50 employees will say what’s the FMLA and I’ll tell you well it’s this law that allows people to take up to 12 weeks of leave in a year and it usually has some standard guidelines about how many hours you’ve got to work, how long you’ve got to work before you in and now those things out and basically says we’re going to change the Family Medical Leave Act to cover everybody with 500 employees or less and what they’re going to say is if you have less than 500 employees and you have an individual who has to care for their child because the school is out because of an order like this or their childcare is out because of an order from the state or local government well because of a COVID emergency and then you are allowed to take up to 12 weeks and the way this works is the first two weeks essentially are going to be covered by the sick paid leave act that we just talked about that new bank of time, so essentially that’s out. The remaining ten weeks that will be out there will be paid at two-thirds of your regular rate of salary. So you take a look at what the person makes, you give them two thirds. This is the employer fronting the bill and you give them that money. Again that’s money that they get before they have to exhaust their PTO, their time off, or anything else. So that’s also subject to credit, to allow you to essentially get the money back, but that’s really what this is in a nutshell. It’s an opportunity for people with very limited types of COVID related absences and illness issues to be able to be off of work and be paid and for the employers that get paid back. So that’s in a nutshell 30,000-foot view, what this whole statute is about. Okay, so and I imagine that communication is pretty important as with all of these issues. So if I’m an employer how do I need to be communicating this with my employees? Well, the good news is there’s this massive wall to everybody in hysteria. The bad news is we really don’t have that notice yet to try to get this out to the employees. The Department of Labor is supposed to put that out. We’re supposed to communicate by the statute itself, so you’re supposed to notify employees of this. There’s a notice that will be up and coming, hopefully fairly soon and maybe even this afternoon, from the Department of Labor because they’re looking at a few things. They’re looking at whether or not they should exempt some small employers because there might be some people with two employees sitting out there going, where am I coming up with this money? There might be people that have economic circumstances and the statute allows the Department of Labor to issue some rules about who’s in and who’s out, so once you get that guidance we’ll be able to tell people. Now you’re free if you’re an employer to give them a copy of this statute, which is available online. You can google it up quite frankly to find it. You looked at sections D and E of the statute and it’s pretty clear what they want you to do, I mean there are some things you might have to interpret, both who is and is not available for this leave is spelled right out there and it’s not complicated really once you read it. You don’t really need to put a whole lot of time but if you have any questions obviously talk to your council, the representative that you have, but I think really what you need to do is get ahead of it make sure you tell your employees as fast as you can and quite frankly now that we’ve got this order from the governor that came out this morning, it’ll make it a little more difficult to get the word out, but the important thing that people need to know about is that these leaves, we actually don’t start under the federal law, the paid leave portion, until April the second. There was a 15-day leave period when this came. So interestingly enough if you take a look at what happened today and we’ll talk about that probably here at some point, the governor is saying that most employees, unless you’re in certain you know qualified essential services, are going to be told to stay home and the question is going to be, well do I have to pay them because that sounds like an isolation order from a state agency and in quite frankly it will become April the second but it’s not today. So you’re not required to pay now under the statute. You can if you would like to go ahead and start paying people whatever you want, but whether you get the tax credit or not that’s not in that statute, the statute hasn’t started at least right now unless we get some kind of change so you can allow individuals to use their bank time you can pay them whatever you want to pay them quite frankly, but these new rules we just talked about they’re not going to apply yet because it doesn’t become effective until April 2nd.
Julie: Okay so obviously a lot still needs to be worked out and like you have said a couple of times at least we’re all in this together as messy as it might be as they continue to work these details out. I do want to talk about this shelter-in-place order issue issued today by Governor Whitmer how does that affect employers?
Cliff: It’s a very big deal. I mean there’s no way around that. I mean I’m not gonna say it’s a bigger surprise than Tom Brady going to the Buccaneers, but it may be right okay. So let’s take it for what it is. It is for everybody all right. It’s across the state, it’s for everybody unless you are exempted. Now I’ve got the rules right here I got the executive order here in front of me, I’m still going through that. I’m still trying to figure out who is and isn’t, but what that basically does it says everybody stay home okay. Go out and walk your dog, if you have to go to a grocery store that’s fine, but just be social distancing and don’t talk to people and basically don’t go to work unless you’re in one of these places. So that’s what the order is trying to do. It is trying to keep people away that are non-essential services out of the workplace through until the middle of April so that we can try to get a handle on the spread. That’s all this really is and so most employers are going to be covered by this and if you’re not, you’re really gonna have to look through this statute and there are even some individuals within your organization that might be designated. There might be essential people and you’re gonna have to tell them that they’re essential. You can’t just make it up. So there’s a lot of groundwork that’s got to be done in a very short period of time so the recap, what this order basically does is it says most companies you can’t have your employees come into work, but you can let them work remotely if you have that option. If you don’t have a remote work policy, you might want to get that rolling out here today. If you can take a day or two to get it done within your service that’s fine. If you wonder whether or not you’re covered under this exemption there are certain businesses that are out there that are not exempt and obviously health care services things like that, first responders, but if you’re not within those services there’s actually a laundry list of different people in different industries that are listed in the executive order and I would encourage employers to get on to the state of Michigan’s website take a look they actually have a link to the Department of Homeland Services and they basically break down what type of jobs are going to be critical services, that are allowed to come into work. So you should go out there and look to see who is and who is not within your company going to be essential and so it’s very important you can’t make an executive order like this obviously that’s gonna cover every single job that everybody in the state of Michigan has ten million different people in the state obviously that’s very hard, but I think what they’ve done is they’ve tried to plan ahead of time at the homeland security to say these are the types of jobs that’ll be critical and everybody else if you’re in doubt, be careful as an employer trying to make them come in because you don’t want to have those individuals you know subject to a sanction or a fine and this the executive order says you will be basically hunted down as an employer if you’re trying to violate this rule and we will you know prosecute you to the fullest extent of the law because it’s a very serious issue. So long story short is your employees are out of the workplace period unless you fit the criteria that they’ve enumerated and quite frankly I’m still trying to make sure that I know who’s in and who’s out and your industry there’s a lot of different industries, there’s a lot of different jobs, some may be in some may be out, but what the governor would like you to do and what the state has tried to say is as a public policy we’d like you to say hey can you at least work at home unless you’re in certain industries like food production and things like that, transportation, certain jobs certain core you know services like a food establishment, a grocery store, things like that. Well even within some of those industries that you might think are open, there may be jobs that aren’t essential and they would say can you least let those people stay at home to the extent they can. We got to figure out how you’re gonna pay those people, can you pay those people, what are your policies, and I hope that most employers have essentially looked into this before now as we saw this wave coming but not everybody has because you have a lot going on.
Julie: And certainly this is the first time we’ve ever faced a pandemic like this before so a lot of questions a lot of you know a lot of I know governments working hard to find some answers. I did find it interesting when listening to governor Whitmer’s press conference that she mentioned that restaurants, that food delivery drivers, you know would still continue to the extent that those businesses stay open and so definitely employers as you said Cliff should be reading and finding out who within the organization or if the organization is still considered an essential service.
Cliff: Yeah it’s critical. I think it’s important because you can’t sit here on this medium right now and answer every single question. So you should talk to your counsel ASAP to find out who’s in who’s out and because that’s not going to question that’s gonna be some will be easy and some are gonna fit into some gray areas, but I think there are some areas like you said that are out there and that’s because of the reality. Look if people aren’t supposed to go to the store and there’s an executive order they can go to the grocery store, but they’re encouraged not to then what’s another way you can get food and supplies to individuals, well it’s by delivery. So that kind of makes sense it dovetails into the technology we have, the reality of the society we live in, and that is a way to make sure that people that are vulnerable or who can’t get out or we don’t want to get out can’t get those services, but those people are employees too right. Those people have to come to work so you obviously have to have exceptions. You can’t just pretend like those people aren’t real people and they are. A Lot of businesses depend on them throughout this time and a lot of people do too, so that’s why you have to look at this.
Julie: And for those who may be watching us now and did not see the news conference this governor Whitmer was calling it a safe, stay home executive order. It goes into effect starting at midnight just after midnight tonight so starting tomorrow technically and stays in effect for three weeks. Cliff I want to ask you to know how does ADA and normal FMLA pay in conjunction with these new federal laws that have been enacted, how do they all play together regarding coronavirus?
Cliff: Yeah and it’s going to be another big issue. Obviously, if we had kept businesses open and not had this order this was going to be the biggest problem with COVID 19 was you had individuals calling in I’m sure everywhere saying I’m afraid. I’m afraid I might not have a medical reason, but I’m afraid. How do you address those things? That now continues to be but probably on a smaller scale now within our workplaces because a lot of people are going to be working from home but the question is going to be, can you work from home? Let’s just say that there’s you know the order goes into place, come Wednesday you have some people that are at home, can you let them work from home? If they say my doctor has said I can’t work for a long period of time, are you now allowed to have accommodation that can do that? Can you say no? Can you tell them they can’t work and continue get a paycheck instead, instead put them on a leave of absence or lay them off or whatever you’re going to do in accordance to this so the bottom line is what I always say is follow the normal ADA an EEOC or FMLA guidelines that the EEOC had put out and the cases are there, HR professionals know what these are, with respect to the personnel that is essential that you’re going to designate to come in if they say I can’t come in because of and they give a medical reason or they need to leave? Well, follow the same FMLA EEOC guidelines. The same ADA interactive process that you would under normal circumstances and apply it to these facts and these circumstances. So those individuals need to be treated, the people on leave need to be treated, and you have to be very careful that you don’t just throw the baby out with the bathwater so well the governor said y’all got to go and doesn’t matter, it does matter. You still have to stop, think it through, and make sure you use the same analysis as you would in any other situation. So I think it’s critical that we don’t lose our heads, that don’t we don’t overreact, and we don’t under-act. That we just treat this as what it is, which is a potential ADA accommodation issue or a leave request and how does your policy apply to individuals who are on either one of those two. Well, it should be consistent and even-handed in this situation as well. Understanding that there are obviously different circumstances, but every case has different circumstances no matter what it is.
Julie: This is also reassuring to hear some of this info and to know that a lot of businesses are really you know, even with all of the uncertainty, a lot of businesses are going through this together. Cliff, I wonder what about businesses that have locations in different states because they are when it comes to their employees because we now have different executive orders or a lack of orders right now and so what about those employees? Does an employer need to respond based on where their employees are located? How does that work?
Cliff: Well this order talks about employers and people who reside in the state of Michigan right. So we address this one here. If you have places in Illinois, California, and New York you’re going to have to address those under their laws and their rules. So you can’t apply Michigan law any day to Florida or Arkansas or wherever your business, so you shouldn’t do that with this either. It’s very important to understand if you have a complex business model you have to be complex when it comes to these types of leave issues and when you have a pandemic it’s going to affect you. No different than doing a contract in California. Got to have different rules of construction you might have to have different requirements. So our governor’s order is going to differ probably from some other places’ orders. This isn’t a federal mandate. Now that comes down there’s a federal rule obviously that would apply across the board, but unfortunately, you know we live in a country that has multiple states with different laws and we’re just gonna have to you know to make sure that we’re on top of those and we just don’t let it go by the wayside. What is something that you absolutely do not want to do until you’ve talked to an attorney? We just want to start firing people left and right. Okay that’s the biggest thing that people say is that’s it I’m done I’m out of business, I’m closing the place down. Well, what if there are a hundred people? All right what do you have a hundred people you fire them all you call it a day and you walk away. Well, there are some requirements. There are some notices that have to go out if you have a certain number of people and if you lay off a certain number of people and it causes you know the reduction in your workforce or reduction in hours over the next six months or more than six months and there are federal rules about that. The same thing comes for disabilities. People say I have COVID – 19 during this thing, I said since you got COVID nineteen and I’m just gonna have to lay you off or let you go because of that so that might be retaliation. If you don’t let somebody work from home but you let another person it just happens to be one’s black, one white, one’s female, one’s male, you might have yourself a discrimination law. So you gotta be careful that you just don’t act quickly. Think it through, understand how the operations are going to be affected, and are you engaging in a discriminatory act even if you’re trying to keep people in work. You got to make sure it doesn’t have a discriminatory effect you know, an outcome that you didn’t intend.
Julie: Absolutely. Cliff thank you so much for lending your insights. Is there anything else that we should add before we start to wrap up here?
Cliff: I think the only thing I would tell everybody is this is changing on a daily basis right. If you asked you two weeks ago will we be sitting here? Of course not. Nobody would think we would do that. We’re here and as you think two weeks ago to be a federal law bipartisan that we were you know have all these paid leaves and give people credits for, probably not right. So that’s where we’re right now. We’re looking at this; we hope that it all beat but we just don’t know the timetable. I think you have to keep on top of all the changes they’re coming on. They may relax or they may shrink or up make it more stringent on who you can and can’t bring it and it’s very important that your notices to your employees who it is and isn’t essential and how they can come in and when they can come in you’ve only got until the end of the month put that in writing. You can do orally until then but have to be in writing. So make sure you do it right. If you’re too, you know thinking about laying people off, putting them on a leave of absence, terminating them, think and consider it very carefully about the long-term repercussions, not the short-term gains. Think about this as the holistic business approach and then think about possibilities and how they’re gonna affect you because you don’t want to get to a point where we come back to work and your boys are gone because they’re mad at you and what about insurance, how are you gonna address that? So you got to think about it in a very short period of time.
Julie: Absolutely. Cliff thank you so much and many of our viewers have commented here, thank you for the information. I know you must be very busy going through all of this right now, so thanks for taking the time to talk with us.
Cliff: Not a problem, any time.
Julie: All right, our expert connexions series continues all week long right here on the mConnexions page. Tomorrow at 1:00 p.m. we will be joined by Andrew Bailey of Washington Avenue ventures. Obviously, as Cliff just said, things are changing day today, so we will have a lot to talk about tomorrow. In the meantime, if you have any questions please feel free to reach out. If you have further questions for any of our guests from today or from last week feel free to comment, we will get back to you and check out our video tab. We had 10 live interviews last week with a variety of experts and all of those videos are there. You can also head to mConnexions.com for further resources related to COVID-19. Thank you all and we will see you back here tomorrow at 1 p.m.