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The COVID-19 HR Guide to Furlough, FFCRA, Under 50 Employees

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Good Morning,

Friday, March 20th, is another day filled with wonder around COVID-19. I hope you all are remaining healthy and taking a few minutes to get outside. This is overwhelming for us all. As a leader, you aren’t exempt. Please remember to take time for yourself to be able to help your employees.

Yesterday the new Families First Coronavirus Response Act (FFCRA) was passed and will now be effective on April 2, 2020. As with most new Acts, and this one even more so due to the need for it so quickly, it came with more questions than answers.

One question many of you have asked is whether you should lay people off now. I need to be clear here, I am not an attorney, and I am not providing any legal advice or opinion. I’ve consulted with an attorney to provide the best practical HR advice I can, but it does not replace or serve as a legal opinion. This is always true, but especially when it comes to such a time as this.

Having said that, I will continue to provide the best guidance based on my experience, knowing my client’s situations, and the legal opinions I’m seeking to try and help us all sort through this together.

Many of you are facing the terrible decision of whether to lay off some or all of your employees. The next decision is knowing the right time.

Here are some things to think about in terms of a layoff:

  • Understand your cash position – if you have reserves, start determining how to use them.
  • Oregon may have a similar situation as California, and Governor Brown could issue a “shelter in place” edict – other states should be aware also. In that case, no employees will be able to come to work, and those that cannot telework would be covered under the FFCRA. Do you have any reserves to cover them under FFCRA?
  • If you need some employees but not all and need to start a layoff now, be careful about your methodology. The best is the last one hired, first one to be let go. If you’re going to do something other than that, please talk with me or get legal advice.

Here are some things to think about in terms of FFCRA:

  • FFCRA is an expansion of FMLA – once it is in effect (April 2, 2020), all employers will be covered.
  • Once FFCRA is in place, it is my understanding a layoff may still occur, but this is where things get a bit more unclear. Granted, if you can’t afford to pay the 2/3rds pay required under the act, then I would imagine it is the only option.
  • Once FFCRA is in place, any employees continuing to work are not impacted as they are receiving wages. FFCRA is for those unable to work due to the reasons outlined in the FFCRA.

Employers under 25/50

  • This is the most confusing part of FFCRA and applies to many, if not most, of you. There is wording saying you can apply for an exemption, but we are still waiting on guidance as to how that works and how long that will take. Based on this, I’m suggesting we look at FFCRA as it stands for all companies.
  • This is another area where I’m happy to make a referral for direct legal advice.

I know there are so many questions as you continue to make incredibly difficult decisions. I also know many of you are awaiting email or phone responses from me. I appreciate your patience as I work through each one as quickly as possible. I hope these emails are helpful and will continue to provide them as information becomes available.

Please keep your questions coming and continue to reach out for help.  I am committed to helping the best I can. Please know that I will make time for each of you.

Christine Frazer, SPHR, SHRM-SCP

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