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Coronavirus/COVID-19

COVID-19 and Unions

COVID-19 and Unions

By Richard H. Wessels of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Coronavirus/COVID-19 on Tuesday, April 14, 2020.

COVID-19 is about the only subject being discussed at Wessels Sherman these days. Of course, there are some exceptions, but COVID-19 is the 800-pound gorilla! While most legal commentaries on COVID-19 focus on minutiae of legislation and regulations, for this commentary we are going to focus on practical information and solutions. And, we will do so in a checklist format with resources of practical use.

  1. Good format for fostering positive communications with your union while at the same time giving you a good defense against a unilateral change ULP. Click here.
  2. Hazard pay commentary with detailed surveys. Click here.
  3. Typical communications from unions about COVID-19. Click here
  4. Template for contract extension agreement because negotiations are delayed by COVID-19. Click here.
  5. Up to the minute hazard pay survey. Click here.
  6. Resource and union steward guides put out by various unions (SEIU-1021; AFL-CIO; UE)
  7. NLRB’s memorandum on unilateral change. Click here.
  8. CARES Act and union neutrality. The CARES Act contains a hidden provision that came as a surprise to most in the business community. This provision mandates union neutrality. An employer obtaining a loan under the CARES Act must certify that the Company will remain “neutral in any union organizing effort for the term of the loan”. Before you get scared, this applies only to mid-sized companies which are defined as having 500 to 10,000 employees. A neutrality commitment is devastating if a Company wants to remain union free. There are no details in the Act itself as to precisely what union neutrality means. We have seen union neutrality agreements in the past, particularly where major companies have included such a commitment in collective bargaining agreements. Whatever the details might be, such a commitment would presumably include a mandate that the employer gives up the right of free speech to explain to employees the disadvantages a union. A Company giving this sort of a commitment will lose elections. It’s that simple. Worse yet, depending upon how the details come out, a Company may give up a right to a secret ballot election and be required to accept a union with a card check. Here is a link to the applicable provisions in the CARES Act. Click here.

Questions? Contact attorney Richard Wessels in our St. Charles, IL office at (630) 377-1554 or by email at riwessels@wesselssherman.com.

Related Posts: Suburban Chicago Security Guard Sues His Employer For Allegedly Refusing To Allow Him To Wear A COVID-19 Protective Facemask At Work, Employers in the COVID-19 Era Need to Have a Good Grasp on Unemployment Insurance Issues: Things are Changing Fast!, Coronavirus Layoffs Result In Class Action WARN Act Lawsuit, The Latest from the IDES Regarding Independent Contractors: What Has Changed in the COVID-19 Era?

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Coronavirus/COVID-19

RESTORE ILLINOIS: Phase 3 Guidelines for Reopening Business and Returning People to Work Safely

RESTORE ILLINOIS: Phase 3 Guidelines for Reopening Business and Returning People to Work Safely

By Anthony J. Caruso Jr. of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Coronavirus/COVID-19 on Friday, May 29, 2020.

Today, May 29, 2020 starts Phase 3 of Restore Illinois for the State of Illinois (excluding Chicago where Phase 3 is scheduled for June 3, 2020).

On Tuesday, May 5, 2020, Governor Pritzker released Restore Illinois, a five-phased plan that will reopen Illinois after the stay-at-home order due to COVID-19.

To prepare businesses and employers to implement the new safety guidelines and to bring employees back to work, the State of Illinois has developed a business toolkit complete with signage, training checklist, and other resources for employers.

Phase 3 guidelines span ten different industry categories. Each set of guidelines includes a common set of guidelines that are expected and encouraged among all employers and activity types, as well as workplace and program-specific guidelines.

The Phase-3 Business Toolkit is available here: https://dceocovid19resources.com/assets/Restore-Illinois/businesstoolkits/all.pdf

Industry definitions and specific guidelines are listed for the following categories:

Manufacturing
Manufacturing facilities such as plants, factories, and mills

Offices
Non-customer-facing offices such as: legal; accounting services; architectural/engineering design; and other professional services

Retail
Retailers and merchandisers such as: grocery stores; hardware stores; clothing stores; pharmacies; department stores; shopping malls

Service Counters
Stores providing assorted services for dropped off goods, such as: dry cleaners; electronics repair shops; shoe repair shops; car washes

Personal Care Services
Hair salons, barber shops, nail salons, spas, waxing centers, tattoo parlors

Restaurants and Bars (outdoor dining and drinking)
Full-service restaurants, limited-service restaurants, snacks bars, taverns, and other food and beverage businesses

Outdoor Recreation
Customer facing services such as driving ranges, outdoor shooting ranges, paintball courses, outdoor adventure parks

Day Camps
Recreational youth programs such as sports camps, recreational camps, educational camps

Youth Sports
Youth sports games or matches, group sports lessons, team or group sports practices (no competitive sports permitted in Phase 3)

Health and Fitness Centers
Gyms, fitness centers, yoga, dance, cycling, pilates, barre studios, and other customer-facing fitness centers

It is recommended that employers follow these guidelines.

Questions? Contact attorney Anthony Caruso in our St. Charles office at (630) 377-1554 or by e-mail at ancaruso@wesselssherman.com

Related Posts: Some Minnesota Businesses Allowed to Resume Operations , Employee Return to Work Under Covid-19: What Should Employers Do?, OSHA Issues Guidance on Recording COVID-19 Cases, New Federal Covid-19 Legislation And Its Dramatic Impact On Independent Contractor Status: How Have Things Changed?

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Coronavirus/COVID-19

Employee Return to Work Under Covid-19: What Should Employers Do?

Employee Return to Work Under Covid-19: What Should Employers Do?

By Anthony J. Caruso Jr. of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Coronavirus/COVID-19 on Wednesday, May 27, 2020.

Unfortunately, our country along with all countries, are dealing with the pandemic crisis. As the restrictions are gradually being lifted on the stay-at-home orders, businesses will resume operations with limitations. Employers will be recalling employees back to work. What should employers do to protect themselves against potential workers’ compensation claims and other liability issues?

The Occupational Safety and Health Administration (OSHA) requires employers to protect the health and safety of employees under the general duty clause.

As return to work activities are phased in by governors and elected officials, various guidelines are being implemented. Employers should follow the guidelines as to providing safety devices and protective equipment, sanitation procedures and safety protocols in the operations of the business.

Based upon the above, Employers should prepare written safety rules under Covid-19 to be signed by each individual employee with the following statement included:

I have read and fully understand the above rules and agree to follow such rules. Further, I understand that my failure to follow such rules may result in discipline up to and including termination.

NOTE: If employees are covered under a collective bargaining agreement, Company must bargain with the Union.

The above recommendations should help to minimize an employer’s exposure to workers’ compensation and negligence claims.

If you have any questions, please contact attorney Tony Caruso in our St. Charles office at (630) 377-1554 or by email at ancaruso@wesselssherman.com

Related Posts: RESTORE ILLINOIS: Phase 3 Guidelines for Reopening Business and Returning People to Work Safely, Some Minnesota Businesses Allowed to Resume Operations , OSHA Issues Guidance on Recording COVID-19 Cases, New Federal Covid-19 Legislation And Its Dramatic Impact On Independent Contractor Status: How Have Things Changed?

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Coronavirus/COVID-19

Some Minnesota Businesses Allowed to Resume Operations

Some Minnesota Businesses Allowed to Resume Operations

By Attorneys of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Coronavirus/COVID-19 on Wednesday, May 27, 2020.

Governor Walz issued Executive Order 20-56 authorizing some businesses to reopen provided that they comply with OSHA, MDH, and CDC guidelines. The Order went into effect on May 17, 2020, at 11:59 p.m. and remains in effect until May 31, 2020.

Reopened non-critical business must establish and implement a COVID-19 Preparedness Plan that provides for the implementation of Minnesota OSHA standards, MDH guidelines, and CDC guidelines. Each plan must address the following:

  • Require work from home whenever possible;
  • Ensure that sick workers stay home;
  • Establish social distancing policies and procedures;
  • Establish hygiene and source control policies for workers; and
  • Establish cleaning, disinfection, and ventilation protocols for areas within the workplace.

Beginning on June 1, 2020, bars and restaurants may begin serving customers outdoors only as long as customers maintain at least six feet of social distance and the number of customers does not exceed 50. Barbers, salons, tattoo shops, and the like may operate at partial capacity as long as patrons wear masks, schedule their appointments ahead of time, and maintain six feet of social distance.

Essential businesses under current CISA guidelines may continue to operate. However, whether the business is deemed critical or not, any employees who are able to work from home must continue to work from home.

Questions? Contact Christopher Jison in our Minnesota office at (262)746-1700 or by email at chjison@wesselssherman.com

Related Posts: RESTORE ILLINOIS: Phase 3 Guidelines for Reopening Business and Returning People to Work Safely, Employee Return to Work Under Covid-19: What Should Employers Do?, OSHA Issues Guidance on Recording COVID-19 Cases, New Federal Covid-19 Legislation And Its Dramatic Impact On Independent Contractor Status: How Have Things Changed?

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Coronavirus/COVID-19

OSHA Issues Guidance on Recording COVID-19 Cases

OSHA Issues Guidance on Recording COVID-19 Cases

By Alan E. Seneczko of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Coronavirus/COVID-19 on Monday, May 25, 2020.

On May 19, 2020, OSHA issued an Enforcement Guidance on recording cases of alleged Coronavirus illnesses in the workplace. Given the difficulty of establishing the causation of many alleged work-related illnesses, and these unprecedented times, this Guidance should prove helpful.

According to OSHA, COVID-19 is a recordable illness if:

  1. The case is a confirmed case of COVID-19, as defined by the CDC 9 (i.e., the employee has tested positive);
  2. The case is work-related (i.e., an event or exposure in the work environment either caused or contributed to the condition, or significantly aggravated a preexisting condition); and,
  3. The case involves one or more of the recordkeeping criteria (i.e., results in death, lost time, restricted duty or medical treatment other than first aid).

Recognizing the difficulty of determining whether a positive COVID-19 test is work-related, OSHA will exercise enforcement discretion when reviewing an employer’s decisions on this issue, considering:

  1. The reasonableness of the employer’s investigation into the issue. It will be sufficient if the employer asks the employee how he believes he contracted the illness; what work and outside activities may have caused it; and, reviews the employee’s work exposure, including any other reported cases in the work environment.
  2. The available evidence. What information was reasonably available at the time the determination was made, and whether any other information became subsequently available.
  3. The evidence that the illness was contracted at work. Evidence of work-relatedness may include, in the absence of an alternative explanation, whether employees work close together; lengthy, close exposure to a co-worker or customer who tested positive; and, frequent, close exposure to the general public in a locality with ongoing community transmission. Evidence that the illness may not be work-related include being the sole person to test positive in the vicinity, with no frequent contact with the public; close and frequent contact with someone outside of the workplace who has tested positive during a period when they were likely infectious.

Hopefully, employers are taking heed of all of the OSHA guidance on preventing the spread of the virus in the workplace and will never need to consider any of the above.

For more information on OSHA recommendations for preventing the spread of COVID-19 in the work environment and other helpful information, see https://www.osha.gov/SLTC/covid-19/.

If you have any questions regarding OSHA recordkeeping and COVID-19, preventing the spread of COVID-19 in the workplace or any other employment issues related to COVID-19, feel free to contact Attorney Alan E. Seneczko at (262) 560-9696, or alseneczko@wesselssherman.com.

Related Posts: RESTORE ILLINOIS: Phase 3 Guidelines for Reopening Business and Returning People to Work Safely, Some Minnesota Businesses Allowed to Resume Operations , Employee Return to Work Under Covid-19: What Should Employers Do?, New Federal Covid-19 Legislation And Its Dramatic Impact On Independent Contractor Status: How Have Things Changed?

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New Federal Covid-19 Legislation And Its Dramatic Impact On Independent Contractor Status: How Have Things Changed?

New Federal Covid-19 Legislation And Its Dramatic Impact On Independent Contractor Status: How Have Things Changed?

By Nancy E. Joerg of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Coronavirus/COVID-19 on Thursday, May 21, 2020.

The independent contractor “legal world” is quickly transforming in many ways! It is hard to keep up with the flood of new laws and court cases impacting independent contractor status on both the Federal and State levels.

FEDERAL COVID-19 LEGISLATION AFFECTING INDEPENDENT CONTRACTORS: Recently Congress passed two major bills (signed into law by President Trump) which included benefits historically reserved for employees but now suddenly expanded by these two surprising laws to also include self-employed individuals (also known as independent contractors or gig workers).

COVID-19 related unemployment insurance benefits have been made available to independent contractors under the Coronavirus Aid, Relief and Economic Security (“CARES”) Act. Paid sick and family leave has also been made available to independent contractors under the Families First Coronavirus Response Act (“FFCRA”).

CARES ACT: Under the CARES Act, enacted into law on March 27, 2020, independent contractors will be entitled to Federal Pandemic Unemployment Assistance (PUA) if the independent contractors are able and willing to work or telework for pay, but are unable to do so due to the obstacles and economic stresses related to the COVID-19 pandemic. PUA is available not only if such independent contractors are “unemployed” but also if “partially unemployed.” PUA is available to independent contractors retroactively from January 27, 2020 through December 31, 2020.

FFCRA: Under the FFCRA, enacted on March 18, 2020 and effective April 1, 2020, both paid sick time under the Emergency Paid Sick Time Act, and expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act are available not only to employees, but (very surprisingly!) also to eligible independent contractors.

Paid sick leave is available to independent contractors for up to ten (10) days where the independent contractor is unable to work or telework because the independent contractor is subject to a government quarantine or order of isolation related to COVID-19; has been advised by a health care provider to self-quarantine; or is experiencing symptoms of COVID-19 and is seeking medical attention. It is clear that Congress viewed many independent contractors as needing significant financial help.

UNEMPLOYMENT INSURANCE BENEFITS: Now that Congress has provided an emergency form of financial help for freelancers, gig workers, and other independent contractors, state departments of unemployment insurance (across America) have for the most part struggled to quickly create online processes to provide such unemployment insurance benefits to independent contractors.

Strangely, most state departments of unemployment insurance require independent contractors to first apply for unemployment benefits as if they were employees, and then, only when DENIED by their state’s department of unemployment insurance because they are found to be non-employees, are they able to proceed with the process to submit documentation that they are self-employed (i.e., independent contractor) and have suffered a loss of income. Yes, a very awkward process!

COMPANIES ARE RECEIVING NOTICES OF CLAIM ON INDEPENDENT CONTRACTORS: As a result of independent contractors being “forced” to apply for unemployment insurance benefits as if they were employees, companies are receiving Notices of Claim from state departments of unemployment insurance about workers they regard as independent contractors. Clearly the independent contractor claimants have no choice but to apply for unemployment insurance benefits as if they were really employees. What a confusing situation for all involved!

By not responding in an effective manner to an unemployment insurance Notice of Claim about a worker regarded by the company as an independent contractor, companies using independent contractors will likely receive a determination from the state department of unemployment insurance that the claimant is really an employee of that business.

Such a legal finding of employee status can create enormous potential legal risks and liabilities for companies that have not been paying unemployment and payroll taxes on the money paid to individuals treated as independent contractors.

TIMELY AND THOUGHTFULLY REPLY TO NOTICES OF CLAIM: Any company who receives a Notice of Claim (for unemployment insurance benefits) on an independent contractor should thoughtfully and fully respond in a timely manner. Even being one day late with a protest response may take away a Company’s right to protest a Notice of Claim.

The Company should explain in detail why the unemployment insurance claimant is not an employee but rather is an independent contractor. Each state has its own legal definition of independent contractor status. Be aware of your state’s “legal test” for independent contractor status under that state’s unemployment insurance law. Design your protest response to prove legally that the unemployment insurance claimant is in fact an independent contractor under your state’s “legal test” for independent contractor status. Attach any available proof of independent contractor status to your written response (protest) such as the independent contractor’s business card, the IRS Form 1099 you issued that independent contractor, print-outs from the independent contractor’s website, any advertising done by the independent contractor, etc.

If you do not aggressively respond to these unemployment insurance Notices of Claim by independent contractors, you may find in the future that your ability to defend the independent contractor status of your workers has been severely damaged! For example, if your company is audited by your state’s department of unemployment insurance in the coming years, the agency may attempt to use these “COVID-19 era” unemployment insurance decisions as the legal basis to find your independent contractors to be misclassified (i.e., they should have been classified as employees).

We do not know exactly what will be the legal long-term result of all these independent contractors getting unemployment insurance benefits in this COVID-19 era. No one knows at this juncture. We are in unchartered waters. Play it “safe” and vigorously defend the independent contractor status of your workers. Answer (protest) each Notice of Claim (by independent contractors) for unemployment insurance benefits with great seriousness and detail.

For assistance with figuring out the best course of action in view of these dramatic new laws regarding unemployment insurance benefits, contact Attorney Nancy Joerg at Wessels Sherman’s St. Charles, Illinois office: 630-377-1554 or email her at najoerg@wesselssherman.com.

Related Posts: Employee Return to Work Under Covid-19: What Should Employers Do?, Some Minnesota Businesses Allowed to Resume Operations , OSHA Issues Guidance on Recording COVID-19 Cases, Illinois Companies Using Independent Contractors Must Now Handle IDES Notices of Claims: What Should Illinois Companies Do?

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Illinois Companies Using Independent Contractors Must Now Handle IDES Notices of Claims: What Should Illinois Companies Do?

Illinois Companies Using Independent Contractors Must Now Handle IDES Notices of Claims: What Should Illinois Companies Do?

By Nancy E. Joerg of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Coronavirus/COVID-19 on Thursday, May 7, 2020.

We now know the basic outline of how the Illinois Department of Employment Security (IDES) will process independent contractor unemployment insurance claims.

The IDES issued a press release on May 5, 2020 about 1099 workers who have lost work due to COVID-19.

The IDES press release states: “Workers who believe they may be eligible for new federal benefits under the Pandemic Unemployment Assistance (PUA) program, must first apply for regular unemployment insurance before applying for benefits under PUA when a new application portal opens on May 11, 2020 via the IDES website.”

IDES Notices of Claims From 1099 Workers Will Be Arriving!: This means that Illinois companies using independent contractors should expect to begin receiving IDES Notices of Claims for these unemployment insurance benefit claims that are now being filed by 1099 workers!

Be sure to timely respond to the IDES when your company receives a Notice of Claim filed by a 1099 worker (independent contractor). Make it clear to the IDES that the claimant is, in fact, an independent contractor and not your employee. Respond with a very detailed letter in support of independent contractor status. Keep your record strong with the IDES in defending independent contractor status.

Several clients have already called to tell me that they have received a Notice of Claim in the mail which already is “not timely.” In other words, the Notice of Claim has a reply due date which has already passed. The client wants to know if it is a waste of their time to protest the Notice of Claim since the reply due date has already come and gone. My advice to the client is to absolutely protest the Notice of Claim!, even though technically it is not timely.

I instruct the client to explain in the protest that the Notice of Claim arrived on [fill in date of arrival] and the company opened its mail immediately on that day and discovered the reply due date had come and gone. I tell the client to state there are witnesses in the company who are willing to testify under oath that the Notice of Claim from the unemployment insurance agency arrived on a specific date and was opened immediately.

If the envelope in which the Notice of Claim arrived has a postmark, I tell the company to attach a copy of the envelope as an exhibit to the protest.

Independent Contractors Have Joined The Ranks of Those Applying for Unemployment Insurance Benefits: Federal and IDES laws have historically shut out independent contractors from unemployment insurance benefits-until the COVID-19 crisis hit the U.S. economy. This COVID-19 pandemic, almost overnight, wrecked work opportunities for many of those who have operated as 1099 workers.

To Be Eligible For PUA, Independent Contractor Must First Be Denied Regular Unemployment Insurance Benefits: If a 1099 worker (independent contractor) receives an eligibility determination of $0 after applying for regular unemployment insurance benefits with the IDES, this shows the IDES views the 1099 worker to be a “non-employee.” Then the 1099 worker can protest that decision by providing to the IDES verification of wages earned, or the 1099 worker can submit a claim to the IDES for PUA benefits.

Unemployment insurance claimants who have already applied for and been denied regular unemployment benefits by the IDES can submit a claim to the IDES through the new PUA portal when it opens on the IDES website on May 11, 2020. Receiving a denial for regular unemployment benefits is a mandatory first step in determining eligibility for PUA under the IDES system.

What is Pandemic Unemployment Assistance (PUA) And How Long Does It Last?: PUA provides 100% federally-funded unemployment benefits for independent contractors who are unemployed for specified COVID-19-related reasons. These 1099 unemployment insurance claimants must not be eligible for the IDES’s regular unemployment insurance program, the extended benefit (EB) program under Illinois law, or the Pandemic Emergency Unemployment Compensation program (PEUC). Up to 39 weeks’ worth of unemployment insurance benefits are potentially available under the program for COVID-19-related unemployment claims.

PUA claims by independent contractors will be backdated by the IDES to the 1099 claimant’s first week of unemployment, but no earlier than February 2, 2020, and will continue for as long as the independent contractor remains out of work as a result of COVID-19, but no later than the week ending December 26, 2020.

PUA will be available to independent contractors who are unable to work or telework if the 1099 worker certifies that he or she:

  • is diagnosed with COVID-19 or experienced symptoms or is seeking a diagnosis,
  • has a member of his or her household that has been diagnosed with COVID-19,
  • is providing care to a family member with COVID-19,
  • has primary caregiving responsibility to a child that is unable to attend school due to COVID-19,
  • cannot reach his or her place of work because of a quarantine or advice of a health care provider to self-quarantine,
  • has become a breadwinner after the head of household has died from COVID-19,
  • has had to quit his or her work as a result of Coronavirus, or
  • has a work location that is closed as a direct result of a COVID-19 public health emergency.

PUA is available not only if such independent contractors are “unemployed” but also if “partially unemployed.” This benefit is not available, though, if and when such self-employed individuals are receiving paid sick leave or other paid leave benefits, including such benefits available to independent contractors under the federal Families First Coronavirus Response Act or a state law providing such paid benefits to self-employed workers.

Companies Must be Vigilant about Defending Independent Contractor Status: This is a crucial time to have a strong independent contractor agreement and strong independent contractor files loaded with documentation of self-employment. Companies need to be extremely vigilant about defending the independent contractor status of their workers who might be applying for unemployment insurance benefits. Yes, they may be entitled to unemployment insurance benefits, but only as independent contractors-not as employees!

For assistance with protesting IDES Notices of Claims and evaluating independent contractor relationships, contact Attorney Nancy Joerg at Wessels Sherman’s St. Charles, Illinois office: 630-377-1554 or email her at najoerg@wesselssherman.com.

Related Posts: Employee Return to Work Under Covid-19: What Should Employers Do?, Some Minnesota Businesses Allowed to Resume Operations , OSHA Issues Guidance on Recording COVID-19 Cases, New Federal Covid-19 Legislation And Its Dramatic Impact On Independent Contractor Status: How Have Things Changed?

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Suburban Chicago Security Guard Sues His Employer For Allegedly Refusing To Allow Him To Wear A COVID-19 Protective Facemask At Work

Suburban Chicago Security Guard Sues His Employer For Allegedly Refusing To Allow Him To Wear A COVID-19 Protective Facemask At Work

By James B. Sherman of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Coronavirus/COVID-19 on Thursday, April 30, 2020.

In what may be among the first of many legal disputes arising out of the Coronavirus crisis, an employee in Illinois has filed a lawsuit against the suburban hospital where he worked as a security guard. The plaintiff, Marvell Moody, is alleging that his supervisor berated him for wearing a face mask while working as a public safety officer at Advocate South Suburban Hospital. Moody claims in the lawsuit that he wore the mask because the hospital is treating patients who have COVID-19 and he cares for his 65-year-old mother, who presents an elevated risk for COVID-19 due to recent surgeries she has undergone. The supervisor allegedly told Moody wearing the mask was against hospital policy. Left with no choice other than to assume a risk to himself and an elevated risk to his mother, Moody refused to come to work.

Like most healthcare employers the defendant hospital is likely exempted from Governor Pritzker’s executive order as well as a variety of government agency guidelines relating to workplace safety during the coronavirus pandemic. Moody and Advocate South also are likely exempted from the FFCRA paid sick and expanded FMLA leave provisions. The lawsuit is based on Illinois state law, alleging Moody was “constructively discharged” when he was forced to stop working based on the hospital’s policy against security guards wearing PPE. The complaint also alleges Moody expressed concerns with co-workers that the hospital’s policy was unsafe (suggesting that additional charges may be filed with the NLRB based on a claim the hospital unlawfully interfered with “concerted activities”).

The viability of any of these claims, is questionable. Yet the case is symptomatic of one of the most common issues employers of any industry are encountering during the coronavirus pandemic – employees concerned about the risk to them and/or their families of contracting COVID-19 from work. In the case of the hospital security guard, he claims he was willing to work but only if allowed to wear a protective mask (presumably the same PPE worn by the doctors and nurses working in the same hospital). In so many other similar scenarios taking place in workplaces everywhere, no doubt, employees fear (or disingenuously express fear) that working, for any number of reasons, is too risky. What can employers do? This novel new case may not be instructive as to the law, nevertheless it does suggest why employers may want to think beyond the letter of the law in this era of previously unseen circumstances. Here is a non-exhaustive list of practical things employers might want to consider:

  • Other than the rare occasion of an employee seeking to exploit the pandemic in order to stay home watching TV instead of working, employees’ concerns about exposure to the coronavirus are serious and they are legitimate.
  • Dismissing the legitimate concerns of employees, even where the law allows for exempted industries and positions, is likely to damage employee relations and your business in the long run.
  • This is not to say that employees in critical positions should be allowed to take themselves out of work based solely on personal fears over COVID-19, only that those concerns deserve to be taken seriously.
  • Where employee’s fears and concerns can be reasonably accommodated, consider doing so even though the law may not require it; e.g. a security guard wearing a face mask may violate “standard” workplace protocol, but is there anything really “standard” about anything these days?
  • Consider reviewing procedures and policies to make interim/emergency exceptions during this pandemic crisis (and communicating to employees that any deviations are just that – temporary/emergency changes).
  • Consider issuing a separate procedure, or reaffirming existing procedures already in place, for the purpose of employees communicating issues and concerns specific to the pandemic. Perhaps if something like this were known to the plaintiff security guard he might have raised concerns to someone in HR, or someone other than his immediate supervisor who did what most supervisors do; i.e. enforce existing policies and not deviate from or make them.
  • Communicate to supervisors that in a pandemic, while they are not permitted to “go rogue” and make up rules as they go, they should also consider that “business as usual” may not always be appropriate. Supervisors should be advised to bring any unusual situations they encounter with the employees they supervise, to a designated manager’s attention.

Questions? contact attorney James Sherman in our Minnesota office at jasherman@wesselssherman.com; or (952) 746-1700.

Related Posts: Illinois Companies Using Independent Contractors Must Now Handle IDES Notices of Claims: What Should Illinois Companies Do?, Employers in the COVID-19 Era Need to Have a Good Grasp on Unemployment Insurance Issues: Things are Changing Fast!, Coronavirus Layoffs Result In Class Action WARN Act Lawsuit, COVID-19 and Unions

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Employers in the COVID-19 Era Need to Have a Good Grasp on Unemployment Insurance Issues: Things are Changing Fast!

Employers in the COVID-19 Era Need to Have a Good Grasp on Unemployment Insurance Issues: Things are Changing Fast!

By Nancy E. Joerg of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Coronavirus/COVID-19 on Monday, April 27, 2020.

UNDERSTANDING THE UNEMPLOYMENT INSURANCE SYSTEM IN AMERICA: Unemployment insurance benefits in the United States started in Wisconsin in 1932. Then came the Social Security Act of 1935 in which the U.S. Federal government encouraged individual states to adopt unemployment insurance plans.

In today’s world, the unemployment insurance system across America is run differently in each state. This creates a lot of confusion currently in the COVID-19 era. An employer might read an article about how unemployment insurance benefits are being handled in one state and mistakenly think that the information applies to every state. It doesn’t. Each state operates under its own unemployment insurance laws and regulations.

Unemployment insurance is a form of social insurance where employers pay into their state unemployment insurance system on behalf of their employees so that that their employees have income support if they lose their jobs through no fault of their own. The U.S. Department of Labor (USDOL) oversees America’s unemployment insurance system, but the individual states run their own basic unemployment insurance programs.

THE NEW CARES ACT: Under the new CARES Act (Coronavirus Aid, Relief and Economic Security Act), which is relief provided by Congress in response to the COVID-19 pandemic, all states across America will be allowed to provide up to 13 additional weeks of Federally funded extended unemployment insurance benefits to workers who exhaust their regular state unemployment insurance benefits. Under the CARES Act, workers applying for unemployment insurance benefits can receive a maximum of 39 weeks of unemployment insurance benefits.

There is a great variety in how many weeks of unemployment insurance benefits different states allow. For example, Massachusetts provides up to 30 weeks of unemployment insurance benefits under normal circumstances. But Missouri provides up to only 13 weeks of unemployment insurance benefits. Florida provides only 12 weeks of unemployment insurance benefits whereas Montana provides 28 weeks of unemployment insurance benefits.

The CARES Act also creates a new program which specifically covers self-employed Americans, gig workers and independent contractors who are out of work or have significantly reduced hours as a result of the coronavirus pandemic. These are individuals who would not normally be eligible for unemployment insurance because they are not employees. Companies who use independent contractors are shocked that independent contractors are now eligible for unemployment insurance benefits (under certain COVID-19 related circumstances).

Historically, the purpose of unemployment insurance benefits was to “shield the employee from the perils of unemployment.” But now, with the covering of independent contractors and gig workers, we are shielding this new category of worker from the perils of lack of work due to COVID-19!

WHO GETS THE WEEKLY $600: Federal funding under the CARES Act provides an extra flat $600 per week until July 31, 2020 to anyone who gets unemployment insurance benefits. It appears that independent contractors and gig workers may also get this weekly $600.

The problem with distributing the flat amount for unemployment insurance claimants across America is that the State unemployment insurance systems were hit with this responsibility almost without warning. The various states, many of which reportedly have antiquated computer systems, were simply not ready to field millions of claims for unemployment insurance from both traditional employees and also from independent contractors and gig workers who qualify. There has been utter chaos online state by state across America as these claimants attempted to apply for unemployment insurance benefits. Unemployment insurance agency websites crashed and phone lines were backlogged.

The various unemployment insurance agencies across America have to struggle to administer these brand new unemployment insurance programs. Many of the unemployment insurance agencies are struggling themselves as employers because they are themselves suffering from lack of state funding and lack of personnel (they are short staffed due to COVID-19 related reasons).

STATES ARE CATCHING UP IN TERMS OF MEETING THE NEEDS OF CLAIMANTS: Various states have recently been able to start distribution of the $600 per week federal benefit which is available to certain claimants until July 31, 2020. Each state is different. Some states have not even begun to distribute the $600 because they do not have the computer programs and technology to do so yet. Many states indicate on their respective websites that they will make the $600 weekly benefit retroactive to a specified date.

WHAT SHOULD EMPLOYERS DO?: I am receiving many phone calls from concerned employers who are wondering if their employees would be better off financially in filing for unemployment insurance or rather working part time with reduced hours.

In many cases, employees who are let go from relatively low paid jobs will end up making more if they are able to collect unemployment insurance benefits. Adding the regular state unemployment insurance benefit to the $600 federal weekly benefit creates a total weekly amount often exceeding what the low paid worker made while fully employed.

If the partially unemployed worker is able to collect even $1 of unemployment insurance, that worker will get the weekly $600 added to their state unemployment insurance amount, but only until the end of July 2020 (unless there is new federal legislation passed to extend it; there are rumors that the date might be extended).

Independent contractors are now seemingly eligible for unemployment insurance benefits, but we have not yet seen how this will be evaluated and administered state by state. For one thing, independent contractors don’t have a set weekly paycheck, so the independent contractor will have to provide documentation of money earned over the past year (usually it would be their IRS Form 1099 for 2019).

A SOMEWHAT UNEXPECTED TENSION: It is becoming clear that one unexpected tension is arising and will continue to arise between companies who have laid off or fired workers and workers who are now enjoying a relatively high amount of unemployment insurance benefits. These workers don’t want to come back to work. The worker is now making more money being on unemployment (and the worker also may fear exposure to COVID-19 being at work).

On the websites for state unemployment insurance agencies, this matter is touched upon in the frequently asked questions section of the website. The state unemployment insurance website suggests that the employer can file a complaint with the state unemployment insurance agency by reporting that the worker is turning down available work in preference to remaining on unemployment.

WILL THE EMPLOYER BE CHARGED FOR COVID-19 RELATED UNEMPLOYMENT INSURANCE CLAIMS?: As of the writing of this article, we don’t know. Usually, employers find that their unemployment insurance rate goes up for several years when a worker gets unemployment insurance benefits and those benefits are charged to the unemployment insurance account number of that employer. However, there are certain circumstances under which employers will find their unemployment insurance accounts are not charged. It is certainly possible that there will be a legislative decision made (or perhaps guidance from the USDOL directing states to institute a program) whereby COVID-19 unemployment insurance benefits should not be charged to the employer’s unemployment insurance account number but rather should be charged to a pool.

If legislation is passed making claims related to COVID-19 non-chargeable to the employer, then employers furloughing or laying off workers due solely to COVID-19 would not be required to contribute to the benefit costs, and the costs would be “pooled” between all employers. This would likely result in increased unemployment tax rates in future years for all employers because the entire pool of employers would need to be tasked with replenishing the benefit trust fund.

Therefore, with each and every unemployment insurance claim (even ones that the employer doesn’t wish to protest), employers should make it clear to the state unemployment insurance agency that the claim is COVID-19 related.

THESE ARE UNUSUAL TIMES: Several clients have called me recently to tell me that they have received a Notice of Claim in the mail which already is “not timely.” In other words, the Notice of Claim has a reply due date which has already passed. The client wants to know if I think it is a waste of their time to protest the Notice of Claim in view of the fact that the reply due date has already come and gone. My advice to the client is to absolutely protest the Notice of Claim!

I instruct the client to note in the beginning of the protest in capital letters and bold that the Notice of Claim arrived on [fill in date of arrival] and the company opened its mail immediately on that day and discovered the reply due date had come and gone. I tell the client to state there are witnesses in the company who are willing to testify under oath that the Notice of Claim from the unemployment insurance agency arrived on a specific date and was opened immediately.

If the envelope in which the Notice of Claim arrived has a postmark, I tell the company to attach a copy of the envelope as an exhibit to the protest. The company should note that it has always been timely in protesting unemployment insurance claims and request that this protest be considered timely because the company immediately protested the Notice of Claim under these circumstances. Then explain why they are protesting including any needed references to COVID-19 (with the hope that perhaps any unemployment insurance benefits will not be charged to the company but rather to the entire pool of employer accounts).

CONCLUDING THOUGHTS: We are entering a brave new world in terms of a virtual ocean of legal issues involving unemployment insurance benefits, new legislation, coverage of independent contractors with unemployment insurance benefits, etc. The problems throughout America’s unemployment insurance system are massive ranging from computer issues to new laws being passed quickly and thrust upon state unemployment insurance agencies (who have to understand and figure out to administer the laws and figure out on a case by case basis who is eligible).

This situation could not have even been imagined several months ago. It is a tremendous learning curve for employers, employees, independent contractors, federal and state agencies, and our society.

Things have moved fast and much is not fully understood yet. Be advised therefore to work with an experienced employment lawyer on the specific facts of any unemployment insurance case as it arises.

Questions? Contact attorney Nancy Joerg in our St. Charles, Illinois office at najoerg@wesselssherman.com or at (630) 377-1554

Related Posts: Suburban Chicago Security Guard Sues His Employer For Allegedly Refusing To Allow Him To Wear A COVID-19 Protective Facemask At Work, Coronavirus Layoffs Result In Class Action WARN Act Lawsuit, COVID-19 and Unions, The Latest from the IDES Regarding Independent Contractors: What Has Changed in the COVID-19 Era?

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Coronavirus/COVID-19

Coronavirus Layoffs Result In Class Action WARN Act Lawsuit

Coronavirus Layoffs Result In Class Action WARN Act Lawsuit

By James B. Sherman of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Coronavirus/COVID-19 on Thursday, April 23, 2020.

In what may be the first of many to follow, Hooters restaurant chain was hit with a proposed class action lawsuit alleging WARN Act violations. The lawsuit was brought in federal court by two employees on behalf of all employees in Florida whom Hooters allegedly failed to provide with 60 days advance written notice of their layoffs as required by federal law. Although the mass layoffs occurred in the context of the COVID-19 pandemic and government ordered closings, the plaintiffs contend that Hooters should have evaluated the impact of the pandemic sufficiently in advance of laying employees off. The complaint seeks 60 days’ backpay and other damages for each day of advance notice employees were entitled to receive under WARN prior to being laid off. Alternatively, the complaint asks for damages caused by Hooters’ alleged failure to give “as much notice as was practicable” under the circumstances, as required by D.O.L. regulations on the WARN Act. While the outcome of this lawsuit has yet to be determined, it and others likely to follow serve as a reminder to employers of the need to consider federal and state layoff and closing notification laws…even during a pandemic.

The federal WARN Act applies to employers with 100 or more employees; however, so-called “Mini WARN Acts” adopted under various state laws commonly cover employers with just 50 or fewer employees. These laws typically require that employees, their union representatives and/or state and local government officials be given written notification in advance of any defined mass layoff or closing. Triggering events typically involve those that impact 50 or more employees, but again, many state laws (e.g. WI and IL) trigger notice requirements when 25 or more employees experience an “employment loss.” Most of these laws require at least 60 days advance notice, but how can an employer provide such notice when terminations or long-term layoffs are caused by something as unimaginable as a global health crisis? The WARN Act and similar laws provide for certain exceptions to the 60 day notice requirement; e.g. for “unforeseen business circumstances,” “faltering businesses,” or “natural disasters.” However, employers who rely on these exceptions to conclude they are excused from providing any notice under these laws, may be making a costly mistake. D.O.L. regulations clearly state that where giving the full 60-day notice is not practicable, employers must provide as much notice as is practicable under the circumstances. In other words, when an employer becomes aware of the need to implement a covered plant closing or mass layoff, regulations consider just 2 working days as sufficient time to prepare and issue compliant notices under the law.

The federal WARN and similar state laws are full of nuances that create legal traps for employers and opportunities for plaintiffs and their lawyers. Here are just a few examples:

  • An employer need not close an entire plant to trigger a “plant closing” requiring advance notice; discontinuing an “operational unit” within a plant may trigger WARN if a sufficient number of employees are affected.
  • Employees do not need to be discharged to count toward the number of affected employees triggering notice requirements; e.g. a layoff lasting 6 or more months, or a reduction in hours of 50% or more in each of 6 consecutive months, can count as an “employment loss.”
  • Employment losses are subject to being aggregated over 90 days, meaning employers not only should account for employees likely to be affected in any given month but also whether more employees may be impacted over roughly any rolling 3 month period.
  • Advance notification laws place considerable onus on employers to essentially predict the future to some degree. Arguments over whether closings and layoffs were foreseeable, often wind up in court as appears to be the plaintiff’s argument in the pending case against Hooters.
  • Even where employees may already be furloughed or laid off, if it becomes apparent employees may not be recalled as originally expected the duty to issue WARN notices may be triggered after the fact (something counterintuitive in the context of laws requiring advance notification).
  • WARN and Mini WARN notices must comply with the very specific notice requirements of the law. For example, a generic letter that fails to address any one of the specific notice requirements such as bumping rights, expected duration of the event, etc., would be deficient.
  • Separate notices with different information must be sent to various government officials, union representatives and/or individual employees; one size does not fit all.

Given the complexities of federal and state notification laws, employers are well advised to take them into account from the moment they foresee any possibility of a plant closing, whether partial or total, temporary or permanent, or mass layoffs that might impact 50 or as few as 25 employees. Prudent employers may wish to have WARN-style notices prepared in draft form, ready to use during this pandemic. Two days is not much time to become familiar with WARN Act requirements, draft legally compliant notices, compile roster lists, etc., particularly during a crisis where things are so unpredictable from one day to the next. Unfortunately, for employers who may be experiencing great hardship during the Coronavirus pandemic plaintiff lawyers appear to still be actively working.

For answers to questions about what notification laws may apply to your business, when notice requirements have been or may be triggered, or for help with preparing compliant notices to use or have ready in draft form, contact attorney James Sherman: Email – jasherman@wesselssherman.com; Phone – (952) 746-1700.

Related Posts: Suburban Chicago Security Guard Sues His Employer For Allegedly Refusing To Allow Him To Wear A COVID-19 Protective Facemask At Work, Employers in the COVID-19 Era Need to Have a Good Grasp on Unemployment Insurance Issues: Things are Changing Fast!, COVID-19 and Unions, The Latest from the IDES Regarding Independent Contractors: What Has Changed in the COVID-19 Era?

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