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COVID-19 Furlough Guide for Employers

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COVID-19 Furlough Guide for Employers FURLOUGH GUIDE FOR EMPLOYERS April 1, 2020 i 62708442v.9 Privileged & Confidential TABLE OF CONTENTS FURLOUGHS - OVERVIEW OF LEGAL CONSIDERATIONS ................................................ 1 1. FEDERAL AND STATE WARN CONSIDERATIONS ....................................................... 2 a. Federal WARN and Similar State Mini-WARN Acts ........................................................ 2 b. State Mini-WARN Requirements ....................................................................................... 3 c. Exceptions to WARN’s 60-Day Notice Requirement ......................................................... 3 d. California WARN ............................................................................................................... 4 i. Executive Order N-31-20 Suspends Some California WARN Act Obligations............. 4 ii. Cal-WARN Basics .......................................................................................................... 5 2. COMPENSATION ................................................................................................................. 6 a. Furloughs for Non-Exempt Employees .............................................................................. 6 b. Furloughs for Exempt Employees ...................................................................................... 7 3. PAID SICK TIME, VACATION AND OTHER LEAVE LAWS ......................................... 9 a. Families First Coronavirus Response Act (FFCRA) .......................................................... 9 b. Other Applicable Sick Time/Leave Laws ......................................................................... 10 c. Use of Sick Time, Vacation and PTO During a Furlough ................................................ 11 d. FMLA and Other Leave Laws. ......................................................................................... 14 4. FINAL PAY OBLIGATIONS .............................................................................................. 14 5. UNEMPLOYMENT ELIGIBILITY AND WORK SHARE PROGRAMS......................... 16 a. Unemployment Benefits ................................................................................................... 16 b. Work Share ....................................................................................................................... 17 6. THE EFFECT OF FURLOUGHS ON EMPLOYEE BENEFITS ....................................... 18 a. Health and Other Welfare Benefits ................................................................................... 18 b. Bridging Coverage During a Furlough ............................................................................. 19 c. Retirement Plans. .............................................................................................................. 19 d. Severance Plans ................................................................................................................ 20 7. EMPLOYEE RETENTION TAX CREDIT ......................................................................... 20 8. U.S. IMMIGRATION LAW CONSIDERATIONS ............................................................. 21 9. OTHER CONSIDERATIONS .............................................................................................. 22 CONCLUSION ............................................................................................................................. 23 THIS GUIDE SHOULD NOT BE SOLELY RELIED ON IN MAKING DECISIONS REGARDING THE IMPLEMENTATION OF A FURLOUGH. PLEASE CONSULT WITH COUNSEL ABOUT ANY SPECIFIC CIRCUMSTANCES. ii 62708442v.9 Privileged & Confidential FURLOUGHS - OVERVIEW OF LEGAL CONSIDERATIONS Employers facing business slow-downs or shut-downs may wish to consider employee furloughs as a cost savings measure and an alternative to employee terminations. A furlough is an involuntary, temporary period of reduced schedule or time off from employment. Furloughs may be required of all employees or of any subset of employees. Furloughs may occur on a one-time basis (e.g., for a specific number of weeks starting on a specific date) or on a recurring basis (e.g., one week per month). Employers considering furloughs should take into account the following employment law considerations: be aware of and comply with any federal or state WARN obligations ensure proper compensation under federal, state and local wage and hour laws comply with any applicable reporting time pay laws when dismissing any non- exempt employees on furlough compensate overtime-exempt employees in a way that preserves their exempt status and comply with any applicable state laws requiring advance notice prior to reducing the salary of exempt employees determine whether employees are entitled to use (or in some cases, that an employer can require) use of sick, vacation, paid time off, other leaves analyze whether the furlough triggers any final pay obligations (i.e., pay out of accrued PTO/vacation time) review whether any reductions in work schedule will impact employee eligibility for health insurance, as well as any impacts on employee welfare or benefit plans comply with obligations to provide employees with information regarding unemployment benefits for which they might eligible and consider work share participation determine whether the furlough requires that an employer continue to pay noncitizen employees in H-1B, H-1B1 or E-3 visa status (various categories of workers in a “specialty occupation”) the required wage reported to the U.S. Department of Labor (DOL), even if pay is suspended for other workers. ensure that any furlough plan is consistent with obligations required by a collective bargaining agreement review any employment agreement that may be in place with individual employees to ensure placing an employee on furlough does not violate the terms of any employee’s agreement review severance plans documents to determine if furloughed employees are eligible for (or excluded from) severance 62708442v.9 Privileged & Confidential 1. FEDERAL AND STATE WARN CONSIDERATIONS1 The federal government and state governments may take action to suspend some WARN obligations for furloughs, layoffs or closings related to COVID-19. Given the fluid nature of the current situation, employers will need to determine the status of applicable laws at the time they take any job action. With respect to furloughs, the length of the furlough and the number of employees affected will determine whether employers have any obligations under the federal Worker Adjustment and Retraining Notification Act (“WARN”) (i.e., plant closing) and/or similar state statutes. Determining whether any WARN obligations exist under federal or state law is critical. a. Federal WARN and Similar State Mini-WARN Acts The federal WARN Act applies to (1) businesses with 100 or more full-time workers (not counting workers who have less than 6 months on the job and workers who work less than 20 hours per week), or (2) businesses that employ 100 or more workers who work at least a combined 4,000 hours per week. Under this law, employers must provide affected employees with written notice of a mass layoff or plant closing (as defined below) at least 60 days before the event. Employers must also notify the local chief elected official, the state dislocated worker unit, and if applicable, the employee’s representatives. A “plant closing” occurs where an employer shuts down a facility or operating unit within a single site of employment and lays off at least 50 full-time workers. A “mass layoff,” occurs where: an employer lays off either between 50 and 499 full-time workers at a single site of employment and that number is 33% of the number of full-time workers at the single site of employment; or an employer lays off 500 or more full-time workers at a single site of employment. The federal WARN Act and most state Acts (with the exception of California) only apply if the employee suffers an “employment loss.” To constitute an “employment loss,” an employee must be discharged, laid off for at least 6 months, or have his or her hours reduced at least 50% in each month of a 6-month period. As a result, under federal (and most state) WARN laws, temporary layoffs (or furloughs) of less than 6 months’ duration will not trigger any notice obligations.2 1 This guide focuses on information about state and/or federal obligations under plant closing statutes as those statutes relate to furloughs. These statutes are complex and employers who believe that action they take may trigger obligations should consult with their employment counsel. 2 There are certain circumstances (not likely relevant to the current situation) where an employer action may not constitute an “employment loss” (e.g., the employer offers to transfer the employee to a different site of employment within a reasonable commuting distance). 2 62708442v.9 Privileged & Confidential In addition, in terms of the number of employees suffering an employment loss, the WARN Act looks at the number of employees affected at a particular site. If a national employer furloughs a small number of employees at each of its locations across the country, this will not trigger WARN obligations unless a sufficient number of employees suffer job losses at a single location. It bears noting that, for WARN purposes, employees who work at home or remotely typically are sited at the bricks-and-mortar employer location from where they are supervised, to where they report, and/or where they are allocated
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