With temporary or permanent layoffs on the rise as a result of the coronavirus outbreak’s impact on businesses, many employers whose businesses have been drastically curtailed or even shuttered, have been left with the question of whether they can afford to keep their employees. Many have evaluated whether they can redeploy them to work remotely. Some employers have been able to go that route, but others have determined that either they lack the business to justify it, or the employee’s duties are not suited to remote work. Where there is no viable alternative, employers have chosen to furlough their employees, or placing them on temporary unpaid leave, and while others have permanently terminated employees.
New governmental guidance for employers is emerging almost daily, as federal, state and local authorities respond to the workplace crisis caused by COVID-19’s effect on the workforce with laws, regulations and guidelines. Still, there remain many unknowns. But, based on currently available information, we think employers evaluating employee layoffs need to consider the following steps:
Evaluate all options before rushing to a decision. There are numerous existing and new laws applicable to employees and the work place, and the federal and New York State governments are making almost daily changes to them to provide helpful resources to employees and employers. Check if there is a government program that employees may be able to use - other than unemployment - before rushing to termination. Some alternatives may include the NY Shared Work Program or allowing employees to access newly expanded NYS sick leave or family leave. Bear in mind that New York has a myriad of antidiscrimination laws in effect, and any employee termination at this time may create liability to the employer for discrimination later, when the COVID-19 threat has passed.
Understand if you need to provide a WARN notice. Under the New York State WARN Act, employers with more than 50 employees must issue a WARN notice if they are laying off 33% or more of the workforce (at least 25 workers). This notice must be sent to employees, their representatives, the State Labor Department, and local workforce investment partners as soon as practicable. If the employer fails to do so, they are subject to a $500 per day penalty for violation, and liable for back pay and other benefits for 60 days. We are looking into exceptions to this rule, and other changes which may be made in coming days and weeks. The latest information should be available on the NYS Department of Labor WARN Act website.
Check if employees are eligible for newly expanded sick and family leave programs. New York State just updated the laws to address workers who are under mandatory or precautionary quarantine. Employees may be eligible for 5 days of paid sick leave and 5 days of unpaid leave in New York State. At the end of that period, they may be eligible for Paid Family Leave (“PFL”) if they are not able to work remotely, and are still under an order of mandatory or precautionary quarantine or isolation issued by the state of New York, the Department of Health, local board of health, or any government entity duly authorized to issue such order due to COVID-19. Employees cannot access the PFL until they have received 5 days of paid sick leave and 5 days of unpaid leave. Federal and state authorities are continuing to review and revise paid leave policies. Check out this NYS issued FAQ regarding COVID-19 updates to PFL. It is not yet clear how the NYS provisions and newly updated Federal laws will interact. Here is a resource on the Federal law, which goes into effect on April 2, 2020.
If you terminate employees, direct them to file for state unemployment claims as soon as possible. New York State has waived the 7-day waiting period for those who are out of work due to COVID-19 closures or quarantines. The government has encouraged individuals who were furloughed or quarantined without pay to apply for unemployment benefits, as they may be eligible.
