Advice For Employers, Workers And Job Seekers
If it’s seemed like no one has definitive answers to what all these new temporary benefits and laws entail or how to take advantage of them, you’re not alone. These emergency measures have been put together very quickly, and several agencies are involved. These agencies are continuing to post clarifications and FAQs as these measures are being put to the test. Be patient with them as well as lawyers, accountants, HR professionals etc. as we are digesting and interpreting a lot of information as quickly as we can.
Here’s some more information for employers, workers and job seekers in plain language, as well as some great free resources to help you navigate from here.
Q: I’m still confused by the new employer-paid sick leave and family leave benefits. Where can I get good explanations?
A: The Department of Labor has issued FAQs on the new mandated employer-paid sick leave and family leave benefits available here. They were first issued a couple weeks ago and more Q&A was added as recently as Thursday April 9th.You may want to look at information from ADP ADP Covid-19 Info. There are also links to various state and local guidance within.
Q: I can’t find good information on the Paycheck Protection Program. Who is administering the PPP?
A: The IRS is the lead on this one. A summary is on the US Dept. of the Treasury website.
Q: I’m still confused as to whether everyone in New Mexico can get paid sick leave under FFCRA since it seems we are all quarantined. Is everyone eligible?
A: No. Under the regulations issued by the Department of Labor, the Governor’s orders are not quarantine or isolation orders (unless you just flew in from out-of-state). An employee is not “quarantined” or “isolated,” for purposes of qualifying for paid leave under the FFCRA, simply by virtue of the Governor’s state-wide order prohibiting mass gatherings and restricting certain non-essential businesses. (Source: Scott Gordon, Rodey Law)
Q: I’m afraid the PPP will run out of money. What more might the government do for small businesses?
A: The senate is looking at more-pandemic funds for small businesses and workers. Check this link for info as of April 7, and google for updates as this evolves.
Q: I haven’t applied for a stimulus loan for my business yet. What should I know before I decide?
A: The loan can help avert layoffs if your business is struggling with reduced business or from the mandatory shutdowns, although not all employers will want — or be able — to take advantage of the loans. If you are facing the tough choice between laying off workers or trying to stay afloat, consider the loan option. The Paycheck Protection Program allows employers to take out loans equal to two-and-a-half times their average monthly payroll. Whatever portion employers use to pay workers, make business mortgage payments or cover certain other operational expenses over the loan's first eight weeks is forgiven, and this benefit is also available to shuttered businesses if they restart payroll. Karen Kilgore of Cuddy McCarthy reminds us however, that if the business does not keep everyone employed, the loan converts to an interest rate of 4% for up to 10 years. Read more.
Q: We’re on a reduced scheduled. Can exempt employees aka “salaried” employees have pay deducted for days they don’t work?
A: Not advised as you may lose the exemption and face having to pay overtime for past of future work. The Fair Labor Standards Act requires that exempt employees be paid unless the business is closed for at least a full workweek and the person performs no work at all. Read more.
Q: Our employees are working remotely during this time which is new for us. Our “hourly” aka non-exempt employees are still completing time sheets, so we know when they are working. How do I know if our “salaried” aka exempt employees are working?
A: You can ask them to keep time logs, however you need to make it very clear that an absolute requirement is that an employee working remotely keep accurate track of their time. You can also ask exempt and non-exempt employees to keep a log of accomplishments or work completed, however apply this consistently and fairly across employees. Read more.
Q: We have people in jobs which can only be performed at the workplace or working with others. Do we have to accommodate employees with disabilities who, due to a preexisting disability, are at higher risk from COVID-19?
Yes, you must make accommodations unless doing so would be unreasonably expensive or disruptive to their essential duties or your operations. There may be reasonable accommodations that could offer protection to an individual whose disability puts him at greater risk from COVID-19 and who therefore requests such actions to eliminate possible exposure. Keep in mind, in NM people with serious medical conditions are also a protected class, so avoid nit picking about what is a disability. Even with the constraints imposed by a pandemic, some accommodations may meet an employee's needs on a temporary basis without causing undue hardship on the employer. The Job Accommodation Network (JAN) is a great free resource for both employers and employees. You can email them or chat with them live for free here.
Q: What are some ideas for reasonably low-cost and minimally disruptive solutions for accommodating employees?
A: Implement accommodations for those who request reduced contact with others due to a disability (and in NM, also consider accommodating people with serious medical conditions.) Ways to do so may include changes to the work environment such as designating one-way aisles; using plexiglass, tables, or other barriers to ensure minimum distances between customers and coworkers whenever feasible per CDC guidance, or other accommodations that reduce chances of exposure. Accommodations achieved with materials you already have on hand, or can easily obtain, may be effective. The Job Accommodation Network (JAN) is a great free resource for both employers and employees. You can email them or chat with them live for free here. Flexibility by employers and employees is important in determining if some accommodation is possible in the circumstances. Temporary job restructuring of marginal job duties, temporary transfers to a different position, or modifying a work schedule or shift assignment may also permit an individual with a disability to perform safely the essential functions of the job while reducing exposure to others in the workplace or while commuting.
Q: We previously made an offer to someone who is supposed to start working in the middle of all this. They are in a high-risk category and this job puts them in contact with people. Can we postpone or withdraw our offer for their own good?
A: No. The fact that the CDC has identified those who are 65 or older, or pregnant women, etc. as being at greater risk does not justify postponing the start date or withdrawing a job offer at the employer’s sole discretion. However, if they ask you may choose to allow telework. You may discuss it with the individual if they would like to postpone the start date or telework if possible, but you can’t choose for them. (Source)
Q: If an employee has a preexisting mental illness or disorder that has been exacerbated by the pandemic, may he now be entitled to a reasonable accommodation (if it doesn’t pose an undue hardship)?
A: Although many of us feel significant stress due to the pandemic, employees with certain preexisting mental health conditions (for example, anxiety disorder, obsessive-compulsive disorder, or post-traumatic stress disorder, etc.) may have more difficulty handling the disruption to daily life. As with any accommodation request, employers may ask questions to determine whether the condition is a disability (and in NM, consider treating serious medical conditions similarly) Discuss with the employee how the requested accommodation would assist him and enable him to keep working, explore alternative accommodations that may effectively meet his needs; and request medical documentation if needed.
Q: Can an employee be fired based on perceived coronavirus symptoms?
A: No, if someone is regarded as disabled, or in NM even has a serious medical condition, they cannot be fired for those reasons. New Jersey has addressed this head on in their state Read more.
Q: Are household employers and employees covered by these benefits?
A: Yes, as written, the law applies to household employers. (Source: Gelfand, Rennert & Feldman)
Q: What is a good one stop resource for HR professionals in NM?
A: Check these out:
SHRM NM State Council has created a Covid-19 Resources & Support page on our website. We are working to keep this page updated with links to information that may be useful to you both professionally and personally. SHRM chapters are working to provide virtual meetings, including opportunities to earn SHRM PDCs and HRCI credit hours.
https://www.dws.state.nm.us/COVID-19-Info
https://www.newmexico.gov/jobs-the-economy/information-for-employers/
Q: What are some other free resources for HR pros and business owners?
A: Check these out:
free webinar by Xpert HR
Law 360 has also opened up most of its articles for viewing without a paid subscription
The DOL also has this resource page
Manpower also posted this webinar approved for PDC’s.
Q: How are you getting all this legal advice?
A: Jackson Lewis has been on it .They have multiple task forces that have been set up. Roughly 90 attorneys on each plus a bunch of others supporting them. Think lawyers don’t care? I will happily prove you wrong by referring you to some of my favorites.
My good friend and NM employment lawyer Scott Gordon of Rodey Law, as well as Theresa Parrish of Rodey.
NM Employment Lawyer Danny Jarrett of Jackson Lewis who told me, “If you have clients with complicated issues (and really this is all complicated), I’m happy to help. Especially for multi-state companies or those with complicated benefits, OSHA or WARN issues, we’re also all over it. We’re also doing daily updates on various Covid-19 topics that you or your clients may want to sign up for. Keep putting out all the great information! I feel so badly for many of our small businesses in NM and really hope they can find ways to survive this.”
Karen Kilgore of Cuddy McCarthy and Quentin Smith of Stelzner Law are also always a great help.
Alice Kilborn Riethman also remains a rockstar/goddess to the NM HR Community.
Q: What happened to the stimulus payment program for the self-employed being offered through the Department of Workforce Solutions?
A: NMDWS was offering a one-time stimulus payment in the amount of $750 each to self-employed individuals affected by the COVID-19 outbreak. The Self-Employed Stimulus Payment (SESP) was only available to the first 2,000 qualifying applicants. The application process for the Self-Employed Stimulus Payment (SESP) is now closed. If you were unable to apply for SESP or did not receive an approval, you may still apply for Pandemic Unemployment Assistance (PUA) when it becomes available later this month. Check backhere. Currently the information is visible at the top of the page in red.
Q: Are Independent contractors/sole proprietors eligible for the loans which can converted to grants if the independent contractor/sole proprietor does not pay themselves wages/via payroll?
A: We don’t know yet. According to the NM Governor Michelle Lujan-Grisham, NM Secretary of the Department of Workforce Solutions, Bill McCamley will provide more clarification in coming weeks, including for independent contractors.
Q: I want to receive the stimulus money, but I don’t pay my taxes electronically. What should I do?
A: Dr. Karin Lubin of Quantum Leap Coaching reminds us this might be the time to enroll in electronic filing and to go to Welcome to EFTPS online
Q: My 401(k) looks more like a 201(k) and I need money. Should I pull my money from the markets or decrease my contributions?
A: That’s not best move if you can avoid it. If you cash out you could be selling low if you pull your money and the market is still low. If you stop or decrease contributions you’ll be missing opportunities to buy low while the market is low. If your employer matches any part of your contributions, make sure you’re at least saving as much as you can to get that “free money.” Read more here. If you really need to pull money from you 401(k), early withdrawal fees are waived however it is taxable. The money you take from your 401(k) can be re-contributed within three years, even if it exceeds the maximum contribution limits for that year. While the distribution is taxable, that tax liability can be spread out over the next three years. Read more here.
Q: I’ve been offered a Severance Agreement. It's long and legalistic. How can I best navigate this?
A: Refer to this guidance from the EEOC for some answers.
Q: I could use help with my job search but can’t afford to pay for a career coach. Are there free resources?
A: The NM Department of Workforce Solutions has free workshops and tools. This LinkedIn expert is also offering free webinars and tools.
Q: I want to practice positivity with like-minded people. Where can I connect with others to give and get a boost of gratitude?
A: Free TRP® (Becoming the Totally Responsible Person) web conferences are continuing throughout April . See upcoming dates and register here.
Q: I’d also like to do some journaling on my own? I don’t know where to start. Any free resources?
A: Funny you should ask. Dr. Karin Lubin of Quantum Leap Coaching is offering a free guided journal workbook to help those who want it to achieve greater clarity and peace.
All the best to you and yours. You've got this.