Straight Talk on the New Families First Coronavirus Response Act

nat rosasco • March 21, 2020

The President signed an emergency aid package into law the evening of March 18 after it passed through Congress with bipartisan support. The package, named the Families First Coronavirus Response Act (the “Act”), responds to the growing pandemic and economic impact by providing for paid sick leave, free testing and expanded unemployment benefits. The Act is organized into “Divisions”, two of which relate to employee leave from work. Division C, the Emergency Family and Medical Expansion Act, expands FMLA coverage to allow employees to care for children due to school or daycare closures, and Division E, the Emergency Paid Sick Leave Act, provides additional benefits for paid sick time to certain employees. The following is a breakdown of the new legislation and its impact on small businesses.



Who Qualifies for Paid Leave Under the New Coronavirus Law?

The new Act provides many American workers access to paid leave if they need to take time off work because of the Coronavirus, including not only full time workers but also people who aren’t typically entitled to such benefits, like part-time and gig economy workers. The new legislation is primarily focused on small businesses, excluding companies with more than 500 workers and expanding the scope of FMLA to apply the new mandate to small businesses with fewer than 50 employees. The Labor Department could exempt these small businesses if providing leave would jeopardize their viability. Employers can also decline to provide leave to workers at the forefront of the pandemic, including health care providers and emergency responders.


Who exactly is defined as a “health care worker” and what qualifies for the “viability” test remains to be seen. The FMLA does include a very broad definition of “health care provider” that is very broad, including for example, dentists and chiropractors. It is not clear at this point, however, whether such a broad definition will apply to the new legislation or whether it will cover administrative staff employed by an otherwise qualifying health care provider.


In addition, employees covered by multi-employer collective bargaining agreements whose employers pay into pension plans and self-employed individuals may also have access to paid leave under the new Act.


What type of paid leave does the law offer?

The new law provides qualified workers up to 2 weeks of paid sick leave if they are ill, quarantined or seeking testing or preventive care for coronavirus, or if they are caring for sick family members. In addition to these 2 weeks, the Act also expands FMLA to provide up to 12 weeks of leave to people caring for children whose schools are closed or whose child care provider is unavailable because of coronavirus. Under this portion of the new Act, the first 10 days of leave may be unpaid.


If an employee is sick or seeking care for themselves, they may be entitled to the full amount of their usual compensation, up to a maximum of $511 a day. If caring for a sick family member or a child whose school or day care is closed, they may be entitled to two-thirds of their usual pay, up to a daily limit of $200.


What is the government’s plan for small businesses to afford this new mandate?

Companies providing benefits under the new law will be reimbursed for the full amount paid, including the employer’s contribution to health insurance costs during the period of leave, within three months in the form of a payroll tax credit.


When does this new law go into effect?

The law goes into effect on April 2nd, 15 days following the President’s signature. Once effective, the sick leave is immediately available for use by employees. Employers cannot require employees to use any other available paid leave before using the sick leave under the new legislation. The paid sick time does not carry over from year to year, and the Act itself is set to expire on December 31, 2020.


Grogan Hesse & Uditsky, P.C. is here to assist its clients with any questions they may have regarding the impacts of Coronavirus/COVID-19. Please contact our Coronavirus/COVID-19 Response Team being led by Amy Grogan and Jordan Uditsky, or the attorney with whom you normally work at the firm.

Employers Can Require COVID-19 Vaccinations For Most Employees

By nat rosasco • February 25, 2021
As this relentlessly awful year mercifully draws to a close, a light at the end of our pandemic tunnel is rapidly approaching. COVID-19 vaccines are poised for approval, and it is expected that distribution will begin in earnest shortly. But no matter how much and how confidently the FDA and other health experts proclaim these vaccines to be safe and effective, there are large numbers of Americans who say they won’t get the shot when it becomes available. The most recent Gallup poll found that only 63 percent of Americans say they are willing to be inoculated against the disease. Many of those who don’t want to get vaccinated will soon find out that they work for an employer who feels differently. Those employers may also tell them that they either need to get the vaccine or need to find a new job. And, in most cases, employers may be well within their rights to terminate employees who refuse to take the COVID-19 vaccine. Mandatory Vaccinations Are Not New Companies that have spent the better part of the year – and lots of money - trying to keep their workplaces COVID-free see the vaccine as the apex of those efforts. With a fully vaccinated workforce, business owners can operate without disruption and provide employees, customers, clients, and patients with confidence and peace of mind. But all of those benefits of the vaccine only accrue to fully vaccinated workforces. So, many companies may mandate that employees get their shot as a condition of continued employment. By doing so, they are following a legally sound path that predates the current pandemic. Well before anyone had heard of coronavirus, plenty of employers, primarily in the health care sector, required employees to get the flu vaccine and vaccinations against other infectious diseases. Most public school districts also require proof of vaccinations before a student can enroll and attend classes. Since most employees in Illinois work on an “at-will” basis, they can face termination for almost any reason not expressly prohibited by federal, state, or local laws. Generally, no law stands in the way of an employer requiring the COVID-19 vaccine for its workers. ADA and Religious Exceptions However, employers who make vaccines mandatory need to be mindful that employees with legitimate health or religious concerns about the vaccine may be protected from termination and other adverse employment actions if they refuse the shot. But these exceptions don’t necessarily apply just because someone doesn’t believe in vaccines generally (“anti-vaxers”) or thinks that forcing them to get vaccination is an infringement on their liberties. Employees who have a disability recognized under the Americans with Disabilities Act (ADA) that prevents them from taking the coronavirus vaccine cannot be forced to get the vaccine, so long as their exemption does not impose an “undue hardship” on the employer. Such disabilities in this context may include a compromised immune system or an allergy to an ingredient in the vaccine. While there has been no definitive guidance on the subject, one could credibly argue that an employee’s refusal to get vaccinated is an “undue hardship” if it places the health and safety of other employees and visitors at increase risk of infection. Even in such cases, however, an employer may need to make a “reasonable accommodation” for the employee, such as allowing them to work from home. Similarly, the anti-discrimination provisions of Title VII of the Civil Rights Act of 1964 may protect a worker if their “sincerely-held religious beliefs” preclude them from getting a vaccination. Such beliefs do not include political or personal views. The burden is on the employee to demonstrate the legitimacy of their religious objections to the vaccine. More Than Legal Issues To Consider Even when an employer is within their legal rights to require employees to get the COVID-19 vaccine, other considerations may weigh against such a mandate. For example, they may need protection against an employee who has an adverse reaction, even if they signed a waiver upon receiving the shot. A vaccination requirement may also get an adverse reaction from employees generally as well as the general public if it seems heavy-handed and overreaching. Of course, those that decide against a mandate face risks if someone does contract the coronavirus in the workplace and sues. Please Contact Grogan Hesse & Uditsky With All Of Your COVID-Related Employment Questions If you have questions or concerns about how to handle vaccinations or other employment issues related to COVID-19, please call us at (630) 833-5533 or contact us online to arrange for a consultation.

Are You Eligible for the Second Round of PPP Loan Forgiveness?

By nat rosasco • January 11, 2021
The Paycheck Protection Program (PPP) is back , offering a second round of loan forgiveness to new borrowers and qualified second-time PPP borrowers. The second round of PPP loans has earmarked up to $284 billion to support business owners' payroll costs and other eligible expenses through March 31, 2021. Loans will be available to first-time participants on Monday, January 11, and existing PPP participants on Wednesday, January 13. First Draw PPP Loan Eligibility Borrowers that did not participate in the first round are generally eligible for a First Draw PPP Loan if they were in operation on February 15, 2020, and fall into one of the following categories: Businesses with 500 or fewer employees that are eligible for other SBA 7(a) loans. Eligible self-employed individuals (including sole proprietors and independent contractors). Non-profit organizations, including churches. Accommodation and food services operations with no more than 500 employees per location. Sec. 501(c)(6) business leagues with no more than 300 employees that do not receive more than 15% of its income from lobbying. Qualifying news organizations with 500 or fewer employees per location. Second Draw PPP Loan Eligibility Existing PPP participants are generally eligible for a Second Draw PPP Loan if the borrower: Used or will have used its First Draw PPP Loan as authorized. Has no more than 300 employees. Can prove it has suffered at least a 25% reduction in gross income between the same quarters in 2019 and 2020. Our team is committed to monitoring new developments with the PPP and providing you with the information you need. It is essential that your small business consults with knowledgeable corporate attorneys , financial advisors, and accountants on your PPP eligibility and forgiveness applications. If you have any questions about the new eligibility requirements or any other issues involving the PPP, please feel free to call or email us.

Amendments to PPP Loan Forgiveness

By nat rosasco • June 5, 2020
Many businesses that received Paycheck Protection Program (“PPP”) funds are coming to the end of their respective eight-week time periods (“Expenditure Period”) during which they must use the PPP funds to obtain forgiveness under the CARES Act. Unfortunately, many of these businesses have found it difficult to reopen and remain fully operational throughout the Expenditure Period and consequently to meet spending thresholds necessary to obtain full forgiveness. Luckily for these businesses, some much needed flexibility is on its way. Paycheck Protection Program Flexibility Act On June 5th, the Paycheck Protection Program Flexibility Act (“PPPFA”) was signed into law. The PPPFA made the following changes relevant to PPP loan forgiveness: Extends the Expenditure Period from eight weeks to the earlier of twenty-four weeks from the date of the loan origination or December 31, 2020. Reduces the required payroll spending amount to a minimum of 60% on payroll instead of the current 75% minimum requirement. This would allow businesses to use the remaining 40% of the PPP funds on rent and other operational items as needed. Extends the deadline for workers to be able to be rehired to December 31, 2020 instead of the current cutoff of June 30, 2020. Extends the PPP loan to a five-year term instead of the current two-year term. As any amendments governing the use and repayment of PPP loans may be vital to a small business’ ability to continue to operate and successfully plan for the future, our team will continue to keep you up to date on the on-going developments. As always, it is important to consult with informed attorneys, financial advisors, bankers and accountants on how best to use your PPP funds. Should you have any questions, don’t hesitate to call or email us.
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