As Congress pushed through an additional COVID stimulus bill on the eve of the new year, it also temporarily extended the benefits afforded to employees under the Families First Coronavirus Response Act (FFCRA).
The FFCRA required employers with less than 500 employees to provide additional job protected paid leave for specific qualifying events (up to 80 hours of paid leave), and also provided up to 12 weeks of leave for parents who could not work because they needed to care for their children whose schools were closed due to COVID-19. For employers, any covered payments under FFCRA are eligible to be reimbursed to the employer by the federal government through a 100% tax credit. As a result, it is often a win-win for employers and employees – the employee gets paid, and in the end, the employer is reimbursed. The FFCRA benefits were set to expire on December 31, 2020.
On December 21, 2020, Congress did not extend FFCRA into 2021; however, they allowed employers to voluntarily continue providing paid leave benefits under FFCRA and to continue receiving the payroll tax credit through March 31, 2021. Thus, while FFCRA is no longer mandatory, employers can still provide these benefits to their employees and continue to offset their costs with the tax credit through the first quarter of 2021.
Key Takeaways for Employers
• Employers should not provide any additional leave under FFCRA to employees who have exhausted their bank of leave. The new legislation did not restart an employee’s entitlement to leave.
• Any FFCRA benefits taken in 2020 by employees will be applied to their leave bank in 2021. For example, if an employee used 48 hours of emergency paid sick leave in 2020, they should only be entitled to use an additional 32 hours.
• Employers will not be eligible to receive tax credits for any amount of paid leave that is greater than what employees are entitled to under FFCRA.
• If an employer provides voluntary FFCRA benefits in 2021, such leave is job protected and employers may not retaliate against an employee who takes such leave.
• Employees who took leave in 2020 are still protected by FFCRA’s anti-retaliation and anti-discrimination protections.
• If an employer provides FFCRA benefits in 2021, it is important to maintain proper documentation in the event of an IRS audit regarding the tax credit.
• If an employer chooses not to continue to offer paid leave under FFCRA, employees may choose to show up to work regardless of having COVID-19 symptoms to avoid missing a paycheck.
Employers should assess whether to continue offering FFCRA benefits and update their policies and practices accordingly. As with any policy change, employers should communicate these changes to their employees.
For additional help navigating these issues, feel free to contact Walker R. Lawrence, a partner in the employment law practice at Levin Ginsburg, at email@example.com, or Joseph A. LaPlaca, an attorney at Levin Ginsburg, at firstname.lastname@example.org.
As a result of recent amendments to the Illinois Human Rights Act (IHRA), employers in Illinois are required to provide annual sexual harassment training to employees who (1) work in Illinois, (2) may perform work in Illinois, or (3) regularly interact with Illinois employees. Employers have largely ignored these new requirements in the wake of the ever-changing environment created by COVID-19, but there is still time to comply. The training must occur on or before December 31, 2020. To help our clients comply with the law, Levin Ginsburg has been providing updated sexual harassment training to its clients virtually.
The Illinois Department of Human Rights provided a model PowerPoint program that employers can use to comply with the law. However, many employers prefer to offer their own training tailored to their business and policies. The law allows employers to use their own training, provided it meets or exceeds the statutory standards. At a minimum, the training must include:
• an explanation of sexual harassment consistent with the IHRA;
• examples of conduct that constitutes unlawful sexual harassment;
• a summary of relevant federal and state statutory provisions concerning sexual harassment, including remedies available to victims of sexual harassment; and
• a summary of responsibilities of employers in the prevention, investigation, and corrective measures of sexual harassment.
If your business is a restaurant or bar, the statute provides additional requirements, including providing each employee a written sexual harassment policy. Illinois recently issued a model training program for restaurants and bars, and this additional training must include the following additional topics:
• specific conduct, activities, or videos related to the restaurant or bar industry;
• an explanation of manager liability and responsibility under the law; and
• English and Spanish language options.
As the December 31, 2020 deadline is quickly approaching, it is important for employers to take steps to meet their obligations imposed by Illinois law. If you have questions about how Levin Ginsburg can help you conduct this training virtually for your employees, please reach out to
312-368-0100 or email@example.com.
You and your employees may become victims of unemployment fraud. The past several weeks have seen a huge increase in unemployment fraud in the State of Illinois and elsewhere. Much of the fraudulent activity arises out of the federal government’s implementation of the Pandemic Unemployment Assistance Program (“PUA”) in May of 2020. Since the launch of the PUA Program, over 107,000 fraudulent unemployment claims have been filed on behalf of unknowing victims, many in the State of Illinois.
Here’s how the scam has been operating:
A victim of the scam in Illinois will receive a letter from the Illinois Department of Employment Security (“IDES”) confirming that the recipient’s unemployment benefits have been approved. The problem, however, is that the individual has not applied for unemployment. The letter will either enclose a debit card that deposits funds into a fraudulent account when used or will advise the recipient that funds are being direct deposited into a bank account in that person’s name. The account, however, was set up by the scammers, who then siphon the ill-gotten gains from the bogus bank account. The IDES is advising recipients not to activate and, instead, destroy the debit card. Additionally, if the individual receives such a notice and that the recipient of the notice did not apply for unemployment benefits, the following important steps need to be taken immediately. The individual should:
- Contact IDES at the telephone number listed on the notice. Due to increased volume, IDES will likely take days or even weeks to return the call. The victim can also go to the IDES website (see the link below) and complete a contact form.
- Contact one of the three credit agencies (Experian, Equifax or Transunion) through their websites and report the fraudulent activity.
- Call the local police and file a police report.
- Tell the employer identified on the notice as the “last employer” that they will likely be receiving a Notice from IDES that the victim has applied for unemployment benefits.
- Notify the Federal Trade Commission at www.ftc.gov to report the identity theft.
- If they don’t already have one, obtain a pin from the IRS. This will ensure no one can file a fraudulent tax return on the victim’s behalf. Remember, the fraudster has the victim’s social security number.
The victim needs to make sure that he or she has kept a good paper trail of all of the steps taken. If you or one of your employees believes they’re a victim of unemployment fraud, they may also consult the following website:
If you have any questions, please contact your Levin Ginsburg attorney.
Employers Continue To Struggle With Employee Leave Laws That Protect Parents In The Wake Of Schools Reopening
With the start of the school year upon us, employers continue to struggle with employee leave laws that protect parents. In response to the pandemic, Congress passed sweeping legislation (the Family First Coronavirus Response Act or FFCRA) that provides, among other benefits, up to 12 weeks of paid leave for parents who are unable to work (or telework) to care for their child because their child’s school or day care is closed due to COVID-19. For employers, any covered payments under FFCRA are eligible to be reimbursed to the employer by the federal government through a 100% tax credit. As a result, it is often a win-win for employers and employees – the employee gets paid, and in the end, the employer is reimbursed.
However, FFCRA did not anticipate the hodgepodge of school reopening plans that may lead to an employee staying home to care for their child, but which are not covered by the FFCRA. As a result, the win-win situation the FFCRA was intended to create may not be available.
FFCRA’s benefits were far-reaching (our original blog about it is here). FFCRA created two new benefits for employees who worked for employers with less than 500 employees: (1) Emergency Family Medical Leave (FMLA+) and (2) Emergency Paid Sick Leave (EPSL). Among other things, FMLA+ and EPSL provided paid benefits for employees who need to care for a child whose school or childcare provider is unavailable or closed for COVID-19 related reasons. Accordingly, if a qualified employee met the requirements of FMLA+ and EPSL, that employee would be eligible to take 12 weeks of job protected leave paid at two-thirds of the employee’s regular rate of pay. The employer would be reimbursed by a tax credit.
After the legislation was passed, the U.S. Department of Labor (DOL) provided additional clarity (or in some cases muddied the waters) with regulations and FAQs. The DOL provided that the employee had to provide the following information:
- The name of the child being cared for;
- The name of the school, place of care, or child care provider that has closed or become unavailable; and
- A statement from the employee that no other suitable person is available to care for the child.
Accordingly, FFCRA benefits are only available if the school is closed or unavailable.
Schools Begin to Reopen
Each school district has its own unique plan for reopening its schools, but many of them allow parents the option of choosing either a full remote learning experience or in-person learning. In this situation, under the current regulations and guidance from the DOL, a parent who chooses not to send their child to school would not qualify under FFCRA because the school is neither “closed” nor “unavailable.”
Accordingly, it is critical for employers to ensure they understand all the facts around an employee’s request to claim FFCRA benefits. If an employer pays an employee who does not qualify under FFCRA, the employer would be ineligible to receive the 100% tax credit for payments and would be on the hook for these payments.
To address this dilemma, employers must develop FFCRA policies requiring employees to complete proper leave request forms. These forms must be carefully drafted to comply with the DOL’s regulations (which limit the information an employer can require), but also provide sufficient information to protect the employer. In this situation, an employer would have written documentation from any employee who was paid FFCRA benefits to minimize the risk that the employer would not qualify for the 100% tax credit. As this situation continues to evolve, it is important that employers stay vigilant in this ever-changing landscape and work closely with their employment lawyer. If you have any questions about the FFCRA or any other employment laws, please reach out to Walker R. Lawrence, a partner in the employment law practice at Levin Ginsburg, at 312-368-0100 or firstname.lastname@example.org.
When disaster such as fire, explosion, or other event strikes and damages a business to the point of interrupting operations, the business owner will turn toward its insurance policy and business interruption coverage (if available) to alleviate the financial fall out. Business interruption policies generally provide coverage for lost income and extra expenses that a business sustains due to a “covered peril” (i.e. an explosion or fire) that “causes direct physical injury or damage” to the business’s real or personal property. Some business interruption policies also provide insurance coverage for indirect losses due to acts of “civil authority” or “supply chain disruptions.” Conversely, some business interruption policies contain exclusions for damages caused by a virus.
In the new COVID-19 world, businesses are now asking whether a pandemic is a “covered peril” or whether a government ordered shut-down triggers insurance coverage. Many businesses that have been deemed “non-essential” by state governments have either been closed or have had a substantial reduction in business revenue (such as restaurants providing only for curb-side or delivery). Businesses that have paid their insurance premiums for years have turned to their insurers for coverage and finding declination letters instead of open arms. Many insurers have taken the position that businesses closed by government action have not sustained damage that caused “direct physical injury or damage” to the business’s real or personal property. Insurance companies have argued that because the closure was to prevent exposure to COVID-19, the interruption is not a “covered peril.” Additionally, many business interruption policies contain a “viral exclusion” that insurers are invoking to deny coverage.
Several businesses have sought court relief upon learning that their insurers have denied coverage. Insurance coverage and bad faith lawsuits have already been filed in several states, including Illinois, California, and Missouri, challenging the insurers’ decision to deny coverage. Arguments advanced by the businesses include the claim that COVID-19 causes physical damage to the businesses’ real property because the virus physically infects and stays on the surfaces of objects or materials for weeks. Insurers will vigorously defend these coverage challenges and it is expected that litigation will be ongoing for years.
Because an insurance policy is a contract, the language contained in the policy itself is the best place to begin the coverage analysis. While reviewing your policy, some of the key questions to ask are:
- Do you have business interruption coverage?
- Does your policy specifically have coverage for a viral outbreak or pandemic?
- Does your policy allow for coverage for acts of “civil authority” or “supply chain interruption?”
- Does your policy exclude coverage for viral outbreak?
If you have questions regarding your insurer’s coverage obligation with respect to the COVID-19 crisis, please contact:
An often overlooked contract provision has now gained the spotlight in the wake of the COVID-19 pandemic. Parties to a contract are now considering whether a contractual force majeure (French for “superior force”) clause will play a critical role in determining whether or not performance is still required. Force majeure provisions typically consist of boilerplate language that generally excuse performance for “acts of God or other unforeseen circumstances that make performance impossible” but may also contain specific language identifying several events that could constitute a force majeure such as “acts of government,” “war,” “famine,” “hurricanes,” or “acts of terrorism.” Depending on the jurisdiction, not all force majeure provisions are created equal.
In order for force majeure to be applicable to a contract under Illinois law, the agreement must explicitly contain such a provision. If no provision exists, force majeure cannot be utilized as an excuse for non-performance. If a contract has a force majeure clause, depending on the jurisdiction, the party seeking to invoke the clause must typically demonstrate that the force majeure event was one of the events contemplated by the language of the provision, the event was unforeseeable at the time of contract, and that the event materially impacted, or rendered impossible, performance. Additionally, the affected party may be required to make a bona fide effort to perform under the contract and in doing so demonstrating that performance is impossible. Finally, if the force majeure clause contains a notice provision, it must be strictly complied with.
Even if a force majeure provision does not cover the COVID-19 pandemic, the parties to the contract may also have to contend with excused performance under Article 2 of the Uniform Commercial Code (for the sale of goods) or the common law doctrines of impossibility of performance or commercial frustration. Article 2 of the UCC codifies a form of force majeure for performance that has been made impracticable “by the occurrence of a contingency the non-occurrence of which was a basic assumption on which the contract was made or by compliance in good faith with any applicable foreign or domestic governmental regulation or order.” Alternatively, the common law doctrines of impossibility of performance or commercial frustration require a fact intensive analysis. However, the commonality of both doctrines is a need for an unforeseeable event such as COVID-19.
If you have questions regarding how the COVID-19 crisis may impact contractual performance, please contact either:
Howard L. Teplinsky at: email@example.com or (312) 330-6472
Roenan Patt at: firstname.lastname@example.org or (312) 368-0100
or any of Levin Ginsburg’s business attorneys.
Yesterday the President signed into law the Emergency Families First Coronavirus Response Act (H.R. 6201) (the “Act”) which provides for emergency family medical leave and emergency paid sick leave. Employers must comply on or before April 2, 2020.
Here’s the benefits the Act provides for employees:
Emergency Family Medical Leave Applies Only to Child Care Disruption
The Act significantly amends and expands The Family and Medical Leave Act (“FMLA”) on a temporary basis for employers with fewer than 500 employees, and certain public-sector employers. The Act allows for up to 12 weeks of job-protected leave for an eligible employee (e.g., an employee must have been on the payroll for 30 calendar days) for “a qualifying need related to a public health emergency.” An employee has a “qualifying need” when the employee is unable to work or telework in order to care for a son or daughter that is out of school or unable to go to childcare due to a public emergency.
Under this Emergency FMLA leave, the first 10 days are unpaid. An employee may elect to use vacation, sick leave or other leave offered by an employer in order to be paid during the first 10 days. During the remaining 10 weeks, an employee on leave is paid at two-thirds the employee’s regular pay. The new changes cap this pay at no more than $200 per day and $10,000 in total.
This Emergency FMLA leave is job protected leave and as a result an employer must restore the employee to their prior or equivalent position once the employee returns to work. There is an exception for employers with less than 25 employees, if the position was eliminated due to changes in the business as a result of a public health emergency.
The Act also allows the Secretary of Labor to exclude from the definition of employee (1) health care providers; (2) emergency responders, and (3) to exempt small businesses (i.e. less than 50 employees) if following the Act’s requirements would jeopardize the business. The Act also allows an employer to not provide the Act’s FMLA entitlements to employees who are health care providers or emergency responders.
Finally, the changes appear to also exempt employers with fewer than 50 employees in a 75-mile radius from civil damages under the FMLA. As a result, small employers are exempt from civil damages
These Emergency FMLA leave provisions are scheduled to end on December 31, 2020.
Emergency Paid Sick Leave
The Act requires employers with fewer than 500 employees and certain public employers, to provide 10 days of emergency paid sick leave to any employee falling in one of the following categories:
- Employees that are subject to a government quarantine related to COVID-19;
- Employees that have been told by a health care provider to self-quarantine due to COVID-19;
- Employees that are showing symptoms of COVID-19 and seeking a medical diagnosis;
- Employees that need to care for an individual subject to a government quarantine related to COVID-19;
- Employees that need to care for a son or daughter that is out of school or unable to go to childcare due to COVID-19; or
- “The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.”
Employees are automatically entitled to the sick leave benefits irrespective of how long they have been on the payroll. However, an employee’s sick time cannot carry over from 1 year to the next. An employer may deny health care providers or emergency responders the sick leave benefits provided by the Act.
The Act also allows the Secretary of Labor to (a) exclude health care providers from the definition of employee; (b) exclude emergency responders from the definition of employee, and (c) to exempt small business (e.g. less than 50 employees) if following the Act’s requirements would jeopardize the business.
The Act also caps paid sick leave at $511 per day ($5,110 in total) if the leave is for reasons 1- 3 above relating to the own employee’s condition and $200 per day ($2,000 in total) for leave that is taken for the reasons set forth in 4-6 above, where the employee is caring for others.
Like the FMLA provision, an employer may not retaliate against an employee who takes any emergency paid sick leave. Further, the Act treats the failure to pay sick leave as a violation of the Fair Labor Standards Act and as a result the employee would be entitled to liquidated damages and attorneys’ fees in the event of a successful lawsuit. Employers must also post, and keep posted, a notice that will be prepared and approved by the Secretary of Labor (which shall be made available within 7 days after the enactment of the Act).
Please reach out to your LG attorney to discuss how these changes could impact your business.
The Setting Every Community Up for Retirement Enhancement Act (SECURE Act) is now effective. The Act made various changes to rules regarding qualified retirement plans as well as some changes to 529 plans. The following are but a few of the changes:
IRAs and other Qualified Retirement Plans
Under the SECURE Act, the general rule is that after an employee or IRA owner dies, the remaining account balance must be distributed to designated beneficiaries within 10 years thereafter. This rule applies regardless of whether the employee or IRA owner dies before, on, or after the required beginning date, unless the designated beneficiary is an eligible designated beneficiary.
An eligible designated beneficiary is: (1) the surviving spouse of the employee or IRA owner; (2) a child of the employee or IRA owner who has not reached majority; (3) a chronically ill individual; or (4) any other individual who is not more than ten years younger than the employee or IRA owner. Under the exception, following the death of the employee or IRA owner, the remaining account balance generally may be distributed (similar to present law) over the life or life expectancy of the eligible designated beneficiary, beginning in the year following the year of death.
Previously, an employee or IRA owner had to withdraw required minimum distributions (RMD) in the year they turned age 70 1/2. The SECURE Act increases that age to 72.
Employer-sponsored retirement plans are now available to long-term part-time workers, with a lower minimum number of hours worked. The SECURE Act drops the threshold for eligibility down to either one full year with 1,000 hours worked, or three consecutive years of at least 500 hours.
Under Internal Revenue Code section 529, a person may contribute to an account for a designated beneficiary’s qualified higher education expenses. Distributions (including any attributable earnings) from a 529 plan are not included in gross income if such distributions do not exceed the designated beneficiary’s qualified higher education expenses. For distributions made after Dec. 31, 2018, section 529 education savings accounts may cover costs associated with registered apprenticeships, and up to $10,000 of qualified student loan repayments (principal or interest). A special rule for qualified student loan repayments allows such amounts to be distributed to a sibling of a designated beneficiary (i.e., a brother, sister, stepbrother, or stepsister). The deduction for interest paid by the taxpayer during the tax year on a qualified education loan is disallowed to the extent the interest was paid from a tax-free distribution from a 529 plan.
If you would like to discuss any of these changes or if you have other questions regarding retirement planning or 529 plans, please contact Morris Saunders or any of our partners at Levin Ginsburg, 312-368-0100.
Every business with employees should have an employee handbook. An employee handbook is essential because it helps employees to understand what their rights are, what the company’s human resource processes and policies are, standardizes company policies and reduces human resource’s time resolving issues. Handbooks and policies are also often required if an employer wants to take advantage of certain defenses or protections. One very common provision in an employee handbook is a statement advising the employee that nothing contained in the handbook creates a contract between the parties, and the handbook does not alter the “at will” nature of the employment. Recently in Bradley v. Wolf Retail Solutions I, Inc., the United States District Court for the Northern District of Illinois held that because a company’s handbook disclaimed all contract rights, the company could not require its employees to arbitrate their claims, despite the fact that the handbook provided that employees’ claims were to be arbitrated.
In Bradley, the plaintiff filed a class action lawsuit alleging that the employer did not pay overtime under the Fair Labor Standards Act and the Illinois Minimum Wage Law. The handbook contained a dispute resolution provision stating that the employee agreed to mediate any dispute with the company and if not successful, the company and employee agreed to submit the dispute to arbitration. The plaintiff received a digital version of the handbook and signed it by clicking a box next the statement: “I have read, understood and accept the terms and conditions stated in this handbook.” The company filed a motion to compel the plaintiff to arbitrate her claims. The court refused to compel arbitration.
In denying the company’s motion to compel, the court stated that because arbitration is a matter of contract, i.e., the parties must first agree to arbitrate in order to be required to go to arbitration, and a party cannot be compelled to arbitrate a dispute when there’s no valid contract to do so. It was, therefore, incumbent upon the employer to prove the existence of a valid contract to arbitrate. The employer pointed to the dispute resolution provision in the handbook, arguing that the employee acknowledged receipt of the handbook and agreed to the policies therein. The court reasoned, however, that the employer could only rely on the dispute resolution clause in the handbook if the handbook is, in fact, a contract. The court found that because the handbook stated “in no uncertain terms” that it is not an employment contract, the company could not require the employee to arbitrate the dispute.
The question is obvious. How can you force an employee to arbitrate claims, thereby eliminating a public record of the proceedings and keeping the case from a jury, when your handbook does not create any contractual right to do so? Similar to your ability to enforce a non-compete with an at-will employee, a separate arbitration agreement will likely be enforceable if the agreement is a stand-alone contract and where consideration is given for the agreement. The consideration may be in the form of a payment, the right to continued employment, or even the agreement to arbitrate a claim itself can be sufficient consideration. In any event, do not assume that your employees will be compelled to arbitrate, rather than litigate, their class action lawsuits if the “agreement” is contained in the employee handbook where no contract is created. Employers have run into similar problems when an employee uses confidential information, but the only confidentiality provision is within the handbook (which by its nature is not a contract). It is also important to ensure that any arbitration agreement with an employee be carefully crafted to eliminate any class or collective claims.
For more information, please contact:
Howard Teplinsky at: email@example.com or 312-368-0100.
On November 26, 2019 the Chicago City Council amended its Minimum Wage Ordinance to accelerate its $15/hour minimum wage hike four years ahead of schedule. Instead of tying the increases to CPI in 2020, the amendment will increase the minimum wage to $14/ hour on July 1, 2020 and to $15/hour July 1, 2021.
The update also increases the minimum wage for tipped workers to $8.40 an hour on July 1, 2020 and requires that it be set to 60% of the City of Chicago minimum wage going forward. On July 1, 2021 it will increase to $9 per hour. Employers can still use a tip credit to make up the difference, but employers will be required to true up any payments if the tip credit is not enough to cover for all hours worked, including overtime pay.
These changes will not immediately impact small businesses with less than 20 employees. Small businesses will only be required to increase the minimum wage to $13.50/hour on July 1, 2020 and $0.50 per year until it reaches $15 per hour in 2023. Employers will less than four employees are not covered by the minimum wage ordinance.
Finally, the City of Chicago’s changes will also eliminate the youth minimum wage exemption by 2025 and will increase the youth minimum wage to $10 per hour on July 1, 2020 until it reaches $15 per hour by 2024.
A breakdown of the relevant wage rates is below:
These changes are in addition to the update to the Illinois Minimum Wage Law that was enacted early this year in February. We provided a comprehensive updated on those changes in April, and you can read more about that here. Please contact us if you need any assistance complying with the Illinois or Federal Minimum wage and overtime laws at 312-368-0100 or Walker R. Lawrence at firstname.lastname@example.org