Webinar Q&A: Federal Response to COVID-19

Below is a compilation of questions posed by our membership, in their words with answers provided by Chris Schulte an associate at CJ Lake, LLC. The webinar provided a discussion on what action the federal government has taken to address the ongoing COVID-19 crisis and key provisions available for ag employers.

+ If I have part time workers who are laid off right now and I bring them back any time from now to December 2020, are they subject to getting 80 hrs?

They will be eligible if they take qualifying leave before the end of 2020, but if they come back part-time, they would get 2 weeks at their average number of hours/week, not the full 80 hours.

+ Are the 80 hours above and beyond the employees sick leave we currently provide?

Yes, the employer may not require the employee to use that sick leave – the federal paid sick leave must be used first before the employer’s paid sick leave.

+ Is the 80 hours above and beyond the CA sick leave?

Yes, the employee would be entitled to both; the federal law does not displace the CA requirements.

+ If an employee doesn’t have COVID-19 or other reasons that trigger leave but just feel uncomfortable working do they qualify for unemployment? Even if we are offering employment?

Yes. They would not qualify for paid leave, but if they were laid off, they would qualify for unemployment. It would be between them and the CA unemployment office whether he could stay on unemployment if a job were available.

+ Will Care Act loans be forgiven for essential businesses as well?

There is no limitation as to the nature of the business under current guidance, so it appears that they would.

+ SBA and Disaster Loan agency say that Ag would not qualify for the Paycheck Protection. Are we able to apply for the PPP even though we are ag (one of the check boxes says not ag)?

The SBA website limitation against ag was specific to the Disaster Loans (similar programs already exist at USDA); but there is no prohibition against ag employers in the law or in the guidance from the Treasury Department, who will be the ones administering the PPP.

+ Does this apply to businesses with less than 20 employees? Sick leave?

Yes to both. The only “exemption” for smaller businesses is for those with fewer than 50 employees for family leave related to school closures, and only if the employee’s absence would jeopardize the viability of the business, under the new DOL rule.

+ Will applying to other disaster relief loans or grants prevent us from qualifying to Paycheck Protection?

No. The loans can be used for specific purposes according to their terms, so they are not exclusive.

+ If applying for PPP, how do we find a bank to do so? Online through SBA? Where is the Treasury application for PPP?

There are certain designated banks who are participating in the program – best to check with your local bank. Treasury will be handling the PPP – their application form is available here: https://home.treasury.gov/system/files/136/Borrower%20Paycheck%20Protection%20Program%20Application%20%28v1%29.pdf

+ Can grandparents apply for unemployment benefits if they are taking care of grandkids due to school closures. Parents have essential jobs.

They could get unemployment benefits if they were laid off, but would not qualify for paid family leave.

+ Are the unemployment benefits increased? How do we get employees to come to work vs just apply for unemployment?

Yes, that was part of the FFCRA and CARES Act; as far as getting workers to choose to work over unemployment, things like access to healthcare or offering higher pay than they would receive through unemployment may persuade them, but there is no way to make them come back if they choose not to.

+ What if we don’t lay off but employees just doesn’t want to come in due to concerns of Covid-19?

If the worker refuses to work, then a lay-off or termination for cause would be an option; otherwise they would stay technically employed but not working or earning any pay.

+ We are calling employees back and some are choosing to stay on unemployment, is there anything we can do to get them back to work?

Other than offering them benefits or pay rates higher than unemployment or something else to recruit them back, no.

+ Are there adjust housing measures to adapt to COVID measures?

For non-H-2A employers that are offering housing, we would refer them to the CDC and OSHA guidelines for worker safety and “social distancing”; for H-2A employers who must have their housing inspected and approved by EDD or their state workforce agency, 20 CFR 655.122(d)(6) allows for moving to new worker housing if the old housing becomes “unavailable” with housing inspections after-the-fact later on, and the second round of FAQs put out on 4/1/20 by DOL’s Office of Foreign Labor Certification discusses delays arising from EDD or SWA delays in inspecting new housing.

+ What safety training should we be doing for ag employees? We encourage social distancing, should we be doing anything else?

Check out the general guidance at CDC.gov and from OSHA at: https://www.osha.gov/Publications/OSHA3990.pdf

+ Where are the details on the housing density changes?

Covered in #14 – basically, the H-2A rules for when housing becomes “unavailable” plus the guidance re: inspection delays. There is no specific guidance on housing density beyond the general “social distancing” guidance from CDC and OSHA.

+ Regarding the Employee Rights poster that has just been released, I will post it but we are all working from home. Do I need to send the flyer out via email or mail?

That is a great idea. The statute only requires employers to post it in a conspicuous location, but where the entire workforce is working remotely, email is best.

+ What is the process of apply for the exemption for the sick leave and the 12 weeks under FMLA? If you plan to apply for exemption do you still do the required posting?

DOL’s guidance discusses how the exemption applies, but does not specify how that would be reported to DOL or IRS yet – questions #58 and #59 here: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

+ Is it okay to have an employee working part time from home and received the balance of an 8 hour day from paid leave example 4 hours work 4 hour paid leave.

Yes. To the extent that a worker is able to telework, that time is treated as full-pay regular work; the remaining time would be 2/3 pay family leave (presumably someone on sick-leave during the 2-week quarantine would not be working part time, but if they are, then all of the work would be at the full rate, with some as wages and some as paid leave).