Sulloway & Hollis’s Labor and Employment Practice Group is monitoring the evolving legal requirements for employers closely on both a state and federal level.  While the situation is fluid, we intend to provide timely information for New Hampshire’s employers.

Below is a collection of commonly asked questions that our Group has addressed and that we wish to share to help you navigate this difficult time with your employees.

General Employment Questions:

Do my employees need to use their paid time off before becoming eligible for unemployment benefits?

In most cases for employees who are laid off, the answers will be yes because employees will not be able to receive benefits until there are no wages due to them.  This comes from the way that New Hampshire defines “unemployment” and “wages.”  Wages includes all forms of remuneration, with exceptions for retirement and third-party sick leave benefits.  

If I terminate or layoff an employee, what do I owe them and when do I have to pay it?

Upon termination, the employer must pay “all wages owed within 72 hours either by physically giving payment to the employee or by mail.”  What is owed will depend on your vacation and benefits policy, but generally it will include any accrued paid time off, if that is what your company provides.

I don’t want to fire my employees, but I have no work for them to do and I cannot pay them.  Are they still eligible for unemployment benefits?

This scenario is considered a furlough.  In most cases, they may be eligible because total unemployment is defined as a week when no wages are paid and no services are performed.  If that is the case, the employee should look to the Department of Employment Security to file an initial claim for unemployment. 

Some employers prefer furloughs over layoffs because it allows them to extend benefits to these employees while they are out, but not every employer will choose that route—especially if doing so would make the company unviable.   Employees who are laid off may be eligible for continued health benefits through COBRA.  

Questions Specific to the COVID-19 Pandemic:

I have work for my employee to perform, but he cannot come into the workplace because he is staying at home with a child whose daycare closed.  What eligibility does that employee have for any benefits?

If there is no other caretaker and the child is too young to be home alone for the day, then your employee should be eligible for unemployment benefits because the governor’s Emergency Order #5 allows employees to become eligible for unemployment compensation if they are unable to work due to:

a) a current diagnosis of COVID-19;

b) quarantined (including self-quarantine) at the instruction of a healthcare provider, employer, or government official;

c) the need to care for a family member or dependent who has COVID-19 or who is under quarantine; or

d) the need to care for a family member or dependent who is unable to care for themselves due to the closing of a school, child care facility, or other care program.

Can I lower my employees’ wages?

Yes, you can, but this must be done in writing and signed by the employee.  This is the same NH Department of Labor Rule (Lab 803.03) that applies for all changes in wages.  Remember, however, that the Fair Labor Standards Act still applies and you must be mindful of ensuring that employees receive no less than the minimum wage for all hours worked.  The U.S. Department of Labor published a helpful worksheet on this subject last year. 

Can I reduce my employees’ hours?

Yes, you can, but the Fair Labor Standards Act still applies and you must be mindful of the differences of exempt and nonexempt employees, as well as minimum wage requirements.  The U.S. Department of Labor published a helpful worksheet on this subject last year. 

Do I have to pay my employees who are working remotely the same as they would receive if working on site?

Yes.   Hourly workers must track their time as they normally would, even if a new system for doing so must be established, and any overtime should be paid as it normally would.

What if I need to fire many employees?

According to the New Hampshire WARN Act (RSA 282-A:45-a), if you must layoff 25 or more employees, then you should first notify the New Hampshire Department of Employment Security.  The Department has information available here.

When does the new Families First Coronavirus Response Act go into effect and who does it impact?

April 1, 2020.  Employers are mostly concerned with two components:  the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act.  Both provisions apply to private employers with fewer than 500 employees.  Small businesses with fewer than 50 employees may be exempt.  The U.S. Department of Labor has a basic summary of these laws here.

The Department of Labor has also published a notice that explains employees’ rights under the act.  You can download a copy of it here.

I have a small business with fewer than 50 employees, does the FMLA expansion in the Families First Coronavirus Response Act apply to me?

Yes, although certain hardships may exempt your business.  We are awaiting regulations that will clarify this process. 

What if I have an employee who has already used FMLA leave?  Does the expansion double the amount of paid leave?

No, but the employee may be eligible for paid sick leave under the Emergency Paid Sick Leave Act, which is a new leave requirement that will be effective on April 1, 2020.

I have an employee whom I fired and who now says that she qualifies for expanded FMLA leave under the new Act.  Is that true?

No.  The Family First Coronavirus Response Act is not retroactive.  It applies on April 1, 2020.

Can I take the temperature of my employees?

Normally, you cannot because this would be considered a medical examination.  Because of the pandemic, though, the U.S. EEOC offered guidance allowing employers to take employees’ temperatures because the CDC and local health authorities have acknowledged that COVID-19 spreads through the community.   This guidance is available here

I know that health information is confidential, but what if one of my employees contracts or is suspected to have COVID-19?  Can I share that information?

You can share that employees may have been exposed to COVID-19, but you should not disclose the specific employee’s identity. 

When can employees return to work?

Because our health systems are strained, the CDC recommends that employers refrain from asking for a healthcare provider’s note for employees who are sick or who want to return to work. 

Generally, common sense will apply, but we recommend the CDC’s  strategies determining when healthcare workers may return to work.  This  looks to when employees’ symptoms have significantly improved and a set time has passed.  These guidelines are available here.

Most people with mild symptoms are not being tested.  In such a case, the CDC recommends that the employee should not return until: a) at least three days have passed since “recovery,” i.e., the resolution of respiratory symptoms such as a fever, cough, and shortness of breath; and b) at least 7 days have passed since those symptoms first appeared.

If an employee has a positive test result, then he or she should not return until:  a) the employee is fever-free without the use of medications; b) respiratory symptoms have improved; and c) they receive negative results from a COVID-19 molecular assay from at least two consecutive specimen times about 24 hours apart. 

Employees who receive a negative test result may return to work when they are fever free and have improved respiratory symptoms.

Resources:

Contact Information: If you would like to talk through a particular scenario, please contact Marrielle Van Rossum at (603) 828-6792 or mvanrossum@sulloway.com.  She or another member of the Labor and Employment Practice Group will be happy to discuss your individual needs.