By David Selden, Julie Pace and Heidi Nunn-Gilman
Kudos to companies and their teams on adapting and implementing COVID-19 policies, practices, and strategies. It is estimated that the evolving situation will last approximately one year while we wait for a tested and approved vaccine. Your GB Covid-19 Legal Team is there to assist when needed. Let’s review what your Company should know and implement to make sure COVID-19 does not kill your business.
First, make sure you understand the Families First Coronavirus Act (FFCRA), post the required posters, implement the two new types of leave: FMLA and Paid Sick Emergency leave, identify the coding to use in your payroll system, distribute a new temporary policy and an application to obtain the leave to employees, understand how to use the tax credit to pay for the new leaves, understand what to write in response to unemployment requests from DES, develop a protocol to handle positive tests or exposures of employees and the notices to provide, identifying questions and self-certifications before employees are allowed to work at some jobs sites, evaluating WARN Act considerations, understanding requirements of workers compensation and OSHA 300 log reporting, and our team has been busy drafting Infectious Disease Plans and Business Continuity Plans.
Remember the legal risk management best practices when communicating with employees who may be trying to set up a retaliation claim against your company. Consider legal review for quickly worded written communications that could later be construed as a promise, guarantee or contract. And, remember communications could be tape-recorded so be cautious with promises, explanations and commitments.
Second, regarding Governor Ducey’s Executive Order, if you are a company identified as an Essential Services Company, your company still has obligations to be able to work. The Orders require your company to identify and use best practices, and that means training your employees. Consider developing and using a safety toolbox talk with every employee focused on office or field. Conduct a job hazard analysis of your office and field environments and adjust safety training so it is relevant. Document the training.
For those employees that a company believes can perform duties remotely, have a written telecommuting policy or telecommuting agreement and include at-will language and that the arrangement is temporary based on the COVID-19 pandemic and can be revoked in the sole discretion of the company. Check the cybersecurity of your network and avoid ransomware issues that have increased. Ensure the confidentiality of your company’s proprietary information.
For those employees who cannot perform duties remotely, consider alternatives including staggering shifts over seven days to allow such employees to work while satisfying the physical distancing requirements, creating skeleton crews at your workplace, or evaluate whether your company needs to right size its business model and assess options of layoffs, furloughs, elimination of positions, unpaid discretionary leaves, etc.
Third, regarding the CARES Act, the Economic Injury Disaster Loan (EIDL), and the Payroll Protection Program with loan turning into a potential grant, make sure your company understands that the money is not free. Strings and restrictions are attached. Violations can lead to fraud, civil or criminal consequences. Your company must satisfy having a certain percentage of employees on the payroll in June, not cutting compensation below certain levels, complying with the affiliation rules and more. And there are a number of other tax provisions in the CARES Act that may be of benefit.
Fourth, this is a time to follow up on collections. Our lawyers on the collections team have been staying in front of getting accounts receivables in the door for clients.
Fifth, our landlord/tenant lawyers have been busy on modifying leases, addressing defaults, and developing creative solutions and arrangements to keep tenants in their spaces or help them transition.
Sixth, our litigators are strategically working with companies to guide them and defend the breach of contract lawsuits arising from this COVID-19 time period.
Seventh, our regulatory lawyers have the latest information regarding temporary regulatory modifications and interpretations, and the effects thereof, made by the federal, state, and local governments as a reaction to COVID-19.
Please keep yourself and your companies safe and healthy. Working together, we will get through this pandemic.
Please contact your GB lawyer for assistance with any of the above items or contact David Selden, Julie Pace or Heidi Nunn-Gilman for assistance.
You may also go to our dedicated COVID-19 page, where we have listed all of relevant articles. This page is updated daily.
