Federal Employment Law Resources & Guidance: Nossaman LLP

Latest update on 09.23.2020 at 4:15 p.m. PT

Federal Employment Law Resources & Guidance

The U.S. Department of Labor (“DOL”) has a Coronavirus Resources webpage to help employers and workers navigate workplace safety, wage and hour, leave, unemployment insurance, and other employment-related issues.

The DOL Wage and Hour Division provides answers to frequently asked questions about COVID-19 under the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA).
On June 23, 2020, the DOL launched an interactive online tool to help workers determine if they qualify for paid sick leave or extended family and medical leave under the Families First Coronavirus Response Act (“FFCRA”). The DOL will roll out an online tool for employers soon.
On June 26, 2020, the DOL issued two Field Assistance Bulletins addressing the following:

Field Assistance Bulletin 2020-3 clarifies how child labor laws under the FLSA apply to employment of children when schools are in session but physically closed due to COVID-19.
Field Assistance Bulleting 2020-4 provides guidance on when an employee qualifies to take paid leave under the FFCRA to care for his or her child based on the closure of a summer camp, summer enrichment program, or other summer program for a COVID-19 related reason.

On August 12, 2020, the DOL issued guidance to help states implement the Lost Wages Assistance (LWA) program, which provides up to $400 per week of additional unemployment insurance benefits to workers displaced by the pandemic. President Trump authorized the LWA program by Presidential Memorandum on August 8, 2020, after negotiations collapsed on a Phase 4 coronavirus relief bill.
On August 17, 2020, the DOL issued additional guidance to address questions raised by states about LWA program, in addition to an LWA Payment Assistance Fact Sheet and Frequently Asked Questions.
On August 24, 2020, the DOL Wage and Hour Division (WHD) issued Field Assistance Bulletin (FAB) 2020-5to clarify an employer’s obligation to track the number of hours of compensable work by employees who are teleworking or otherwise working away from premises controlled by their employers.

The Equal Employment Opportunity Commission (“EEOC”) has issued guidance considering the implications of the 2009 H1N1 flu pandemic on employer obligations under the Americans with Disabilities Act (“ADA”). According to the EEOC, this guidance is directly applicable to the novel coronavirus outbreak.

On March 27, 2020, the EEOC published a recorded webinar supplementing the EEOC’s existing publications: What You Should Know About the ADA, the Rehabilitation Act, and COVID-19 and Pandemic Preparedness in the Workplace and the Americans with Disabilities Act. The EEOC used a Q and A format to address 22 common questions from employers covering a broad range of topics related to the application of the Americans with Disabilities Act (“ADA”), the Age Discrimination in Employment Act (“ADEA”), Title VII of the Civil Rights Act, the Pregnancy Discrimination Act, and the Genetic Information Nondiscrimination Act (“GINA”), in light of the COVID-19 pandemic. Q&A included the following topics: Permissible COVID-19 Inquires of Employees Reporting to Work, Confidentiality and Disclosure of Diagnosis to Co-Workers At-Risk Individuals and Reasonable Accommodations, and Reasonable Accommodations to Employees Working from Home.
On April 9, 2020, the EEOC updated its COVID-19 technical assistance publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” The publication provides guidance in a Q&A-style format on the following topics: disability-related inquiries and medical exams, confidentiality and medical information, hiring and onboarding, reasonable accommodation, pandemic-related harassment and discrimination, and furloughs and layoffs. Updated Q&As are date-stamped and appear in bold.
On April 17, 2020, the EEOC published another round of updates to its COVID-19 technical assistance publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” The updated Q&As address issues arising from reopening the workplace, including reasonable accommodation obligations, health screenings, and harassment and discrimination practices.
On April 23, 2020, the EEOC updated its technical assistance publication with guidance on testing and medical exams in the workplace. Notably, the publication states that “an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus,” but employers must ensure that tests are “accurate and reliable.”
On May 7, 2020, the EEOC updated its technical assistance publication to provide information about the accommodation of employees with underlying medical conditions.
On May 7, 2020, the EEOC announced that it will delay the anticipated opening of the 2019 EEO-1 Component 1 data collection and the 2020 EEO-3 and EEO-5 data collections because of the COVID-19 pandemic.
On June 11, 2020, the EEOC updated and expanded its technical assistance publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” The updated publication provides guidance on several issues employers may face in returning their employees to work.
On June 17, 2020, the EEOC updated its technical assistance publication and said that employers cannot mandate antibody tests before allowing people back to work. The EEOC pointed to recent guidance by the Centers for Disease Control & Prevention that states in part that antibody tests should not be used to determine if someone is immune to the virus or as a basis for decisions about allowing workers back on the job. Keep in mind that this is in contrast to viral testing of active COVID-19 cases, which the EEOC has acknowledged is permissible under the ADA.
On July 27, 2020, the EEOC's Office of Federal Operations (OFO) revised instructions issued on April 6, 2020, regarding the processing of federal sector EEO complaints covered by 29 CFR Part 1614. The EEO complaint processing instructions were revised to allow the issuance of agency final actions.
On September 8, 2020, the EEOC added to its technical assistance publication with updated answers to questions that were initially discussed during the EEOC’s March 27, 2020 webinar. Among other clarifications, the guidance now states that employers have “no obligation under the ADA to refrain from restoring all of an employee’s essential job duties at such time as it chooses to restore the prior [pre-pandemic] work arrangement,” so long as the employer evaluates any accommodation requests under the “usual ADA rules.” The DOL makes clear that employers who provided emergency teleworking accommodations to employees during the pandemic are not necessarily required to maintain teleworking arrangements under the ADA and may begin returning employees to the worksite.

The Occupational Safety and Health Administration (“OSHA”) offers employers and workers a wealth of information on the workplace safety aspects of the COVID-19 pandemic.

In particular, OSHA has issued Guidance on Preparing Workplaces for COVID-19.
Employers should also be aware of key OSHA standards that apply during this pandemic.
On April 3, 2020, OSHA issued interim guidance for enforcing the Respiratory Protection standard, 29 C.F.R. § 1910.134, and other health standards to help combat supply shortages of disposable N95 filtering facepiece respirators (“FFRs”).

On April 3, 2020, OSHA issued additional guidance addressing supply shortages of disposable N95 FFRs. The guidance outlines enforcement discretion to permit the use of FFRs and air-purifying elastometric respirators that are either: 1) Certified under specified standards of other countries or jurisdictions; or, 2) Where such respirators are not available, previously certified under the standards of other countries or jurisdictions but are beyond the manufacturer’s recommended shelf life (i.e., expired).

On April 3, 2020, OSHA uploaded two video presentations offering quick tips on assessing and responding to workplace risks to combat the spread of COVID-19.

On April 7, 2020, OSHA uploaded a third quick safety tips video recommending the use of EPA-approved disinfectants to keep the workplace clean. All three videos are available here in English and in Spanish.

On April 6, 2020, OSHA published a new poster listing steps that can be taken at the workplace to reduce the risk of exposure to the novel coronavirus.
On April 8, 2020, OSHA expanded its temporary guidance for respirator fit-testing, which was previously only applicable to the healthcare industry, to all workplaces that require the use of respirators.
On April 8, 2020, OSHA published a press release reminding employers that it is illegal to retaliate against workers for reporting unsafe and unhealthful working conditions during the COVID-19 pandemic.
On April 9, 2020, OSHA issued guidance to keep retail workers safe during the COVID-19 pandemic.
On April 10, 2020, OSHA issued interim guidance on the enforcement of 29 CFR Part 1904, which requires employers to record cases of COVID-19 at the workplace under certain conditions. While employers in the healthcare industry, emergency response organizations, and correctional institutions must continue to record cases of COVID-19, OSHA will not enforce its record keeping requirement against employers in other industries, unless

There is objective evidence that a COVID-19 case may be work-related, such as where there is an outbreak among workers who work closely together and there is no alternative explanation; and
This evidence was reasonably available to the employer, including information provided by employees or uncovered in the ordinary course of business.

On April 13, 2020, OSHA announced an interim enforcement response plan for its Area Offices and Compliance Safety and Health Officers (CSHO) for handling coronavirus-related complaints, referrals, and severe illness reports. The plan outlines temporary procedures that provide flexibility and discretion to fulfill mission critical functions and protect workers while ensure the safety of OSHA personnel.
On April 13, 2020, OSHA issued guidance to keep package delivery workers safe during the COVID-19 pandemic.
On April 16, 2020, OSHA issued guidance to keep manufacturing industry workers safe during the COVID-19 pandemic.
On April 21, 2020, OSHA issued guidance to keep construction workers safe during the COVID-19 pandemic.
On April 26, 2020, OSHA and the CDC released a joint coronavirus-related interim guidance to protect workers in the meatpacking and processing industries.

On April 28, 2020, President Trump issued an executive order requiring meat and poultry processors to continue operations.

On May 4, 2020, OSHA translated and published its “Ten Steps All Workplaces Can Take to Reduce Risk of Exposure to Coronavirus” poster in 11 additional languages.
On May 19, 2020, OSHA issued interim guidance on the enforcement of 29 CFR Part 1904, which requires employers to record and report cases of COVID-19 at the workplace under certain conditions. This guidance replaces the guidance OSHA released on April 10, 2020, tightening up the previously relaxed recording requirements. The guidance provides useful considerations for determining whether an employer’s decision not to record a COVID-19 illness is reasonable.
On May 19, 2020, OSHA announced a revised enforcement response plan for its Area Offices and Compliance Safety and Health Officers (CSHO) for handling coronavirus-related complaints, referrals, and severe illness reports. The plan replaces the interim enforcement response plan issued on April 13, 2020, and outlines circumstances under which on-site inspections may be resumed, among other topics.
On May 26, 2020, OSHA launched a webpage with coronavirus-related guidance for construction employers and workers, including recommended actions to reduce the risk of exposure to the coronavirus.
On June 1, 2020, OSHA issued a one-page alert providing guidance on social distancing at work.
On June 2, 2020, OSHA and the CDC issued a joint coronavirus-related interim guidance for agricultural workers and employers.
On June 2, 2020, OSHA issued guidance to keep stockroom and loading dock workers safe during the COVID-19 pandemic.
On June 10, 2020, OSHA published a series of frequently asked questions and answers regarding the use of face coverings, surgical masks, and respirators in the workplace.
On June 18, 2020, OSHA issued comprehensive guidance for employers reopening non-essential businesses and for employees returning to work.
On July 7, 2020, OSHA released coronavirus-related guidance to reduce the risk of exposure for oil and gas workers.
On July 8, 2020, OSHA released a new poster listing safety tips employers can follow to reduce the risk of exposure for meat packing, poultry and pork workers.
On August 19, 2020, OSHA and the FDA partnered to develop a checklist for human and animal food manufacturers to consider when continuing, resuming or reevaluating operations due to the coronavirus pandemic.

On March 18, 2020, President Trump signed House Resolution 6201 into law. Among other things, HR 6201, known as the “Families First Coronavirus Response Act” (“FFCRA”), greatly expands the FMLA and creates a new federal paid sick leave law, both requiring covered employers to provide employees with paid leave due to the COVID-19 pandemic. Stay tuned for Nossaman’s summary of this new law.

On March 24, 2020, the DOL published guidance on the FFCRA in the form of a Fact Sheet for Employers, a Fact Sheet for Employees, and a Question and Answers. The guidance clarifies that the FFCRA takes effect on April 1, 2020.

This guidance is just the first round of information and compliance assistance from the DOL’s Wage and Hour Division. A required workplace poster, additional fact sheets, and more Q & A’s will follow later in the week.

On March 24, 2020, the DOL issued Field Assistance Bulletin No. 2020-1, announcing that it will not bring enforcement actions under the FFCRA during the period of March 18, 2020, to April 17, 2020, provided that employers are taking reasonable, good faith steps to comply with the FFCRA.

Please note that the FFCRA does not become effective until April 1, 2020.

On March 25, 2020, the DOL published model FFCRA workplace posters for federal employers and for all other covered employers. Frequently Asked Questions and Answers on the notice posting requirement are now available.
On March 26, the DOL issued a second round of Questions and Answers relating to required documentation, incremental use of leave, and payments under the FFCRA, as well as the relationship between the FFCRA and reductions in hours, furloughs, and layoffs.
March 27, 2020, the U.S. Treasury Department, Internal Revenue Service and the U.S. Department of Labor announced that small and midsize employers can begin taking advantage of two new refundable payroll tax credits, designed to immediately and fully reimburse them, dollar-for-dollar, for the cost of providing Coronavirus-related leave to their employees.
On March 30, 2020, the DOL issued a third round of Questions and Answers addressing the definition of a “health care provider,” the scope of the small business exemption to the FFCRA’s Emergency Paid Sick Leave Act (“EPSLA”) and Emergency Family Medical Leave and Expansion Act (“EFMLEA”), and whether public sector employees are entitled to leave under the EPSLA and EFMLEA. Every Question and Answer that the DOL has issued to date is available on the DOL’s FFCRA Question and Answers

Employers should take note that the DOL’s interpretation of the FFCRA does not necessarily correspond to a plain reading of the text, warranting a closer look at the DOL’s guidance. For example, in response to questions 58 and 59, the DOL states that the small business exemption to the EPSLA and EFMLEA applies only to paid leave taken “due to school or place of care closures or child care provider unavailability for COVID-19 related reasons.” However, this limitation is not readily apparent in the text of the FFCRA, creating a potential pitfall for counsel and employers.

On March 31, 2020, the IRS issued guidance on the payroll tax credits under the FFCR available to small and midsize employers to reimburse them for the cost of providing paid sick and family leave wages to their employees related to COVID-19.
On April 1, 2020, the DOL announced new action regarding how American workers and employers will benefit from the protections and relief offered by the EPSLA and EFMLEA. The DOL’s Wage and Hour Division (WHD) posted a temporary rule issuing regulations pursuant to the FFCRA. The temporary rule is effective from April 1, 2020 through December 31, 2020. [Caveat: This temporary rule is currently pending placement on public inspection at the OFR and publication in the Federal Register. This version of the temporary rule may vary slightly from the published document if minor technical or formatting changes are made during the OFR review process. Only the version published in the Federal Register is the official temporary rule.] This temporary rule provides: (1) rules relevant to the administration of the FFCRA’s paid leave requirements; (2) direction for administration of the EPSLA; and (3) direction for the effective administration of the EFMLEA.
On April 1 2020 the DOL issued formal regulations implementing the FFCRA (“Act”), which took effect on April 1. The regulations provide a substantial amount of information, provide clarification to the Act, and at times differ from the guidance recently issued by the DOL. All should be reviewed carefully.
On April 1, 2020, Members of Congress sent a letter to the Secretary of the Department of Labor stating the following: “We write you to raise deep concerns with materials issued by the Department of Labor (DOL) interpreting the paid sick and family leave provisions of the Families First Coronavirus Response Act (FFCRA) and request you revise them immediately. Several of the statements put forth in the document, labeled ‘Questions and Answers,’ contradict the plain language of the FFCRA and violate congressional intent.” The letter outlines several proposed changes to the guidance.
On April 2, 2020, the DOL announced new guidance on unemployment insurance for states in response to the COVID-19 crisis. The new guidance helps states implement new legislation to expand unemployment insurance coverage for all workers, including those who are normally not eligible for unemployment benefits—gig workers, self-employed workers, and individuals seeking part-time work.
On April 2, 2020, the DOL pushed out a webpage offering further information on claiming unemployment insurance relief during the COVID-19 pandemic. The webpage aggregates official guidance, fact sheets, frequently asked questions, news releases, and contact information for employment insurance offices in each U.S. state and territory.
On April 3, 2020, the DOL Wage and Hour Division hosted a webinar on the FFCRA explaining which employers and employees are covered by the EPSLA and EFMLEA, and the benefits and protections available under these laws. The webinar and the webinar slides are available on-demand.
The DOL will accept comments and suggestions from employers and employees on administration of the FFCRA until April 10, 2020. The ideas and comments gathered from this online dialogue will be used to develop compliance assistance guidance, resources, and tools, and outreach approaches that assist employers and employees in understanding their responsibilities and rights, respectively, under the FFCRA.
On April 6, 2020, the DOL’s temporary rule concerning the paid leave provisions of the FFCRA was published in the Federal Register at 85 FR 19326. These temporary regulations are substantively identical to the unpublished temporary regulations that were made available on April 1, 2020; only slight technical and stylistic changes were made.
On April 6, 2020, the DOL issued a fourth round of Questions and Answers, which added Q&A Nos. 60-79 and revised previously issued Q&As. These changes highlight the importance of reviewing the most recent version of the DOL’s guidance in attempting to comply with the FFCRA’s paid leave provisions.
On April 9, 2020, the DOL proposed corrections to its recently published FFCRA regulations, which contained an incorrect calculation of hours worked (page 19329), a paragraph within the preamble describing regulatory text that was erroneously included (page 19338), incorrect cross references (§§ 826.20, 826.22, and 826.100(d)), and other minor errors. The DOL’s corrections are scheduled to be published in the Federal Register on April 10, 2020.
On July 20, 2020, the DOL published additional guidance for workers and employers on how the protections and requirements of the Fair Labor Standards Act, the Family and Medical Leave Act, and the FFCRA affect the workplace as workplaces reopen amid the coronavirus pandemic.
On August 3, 2020, the US District Court for the Southern District of New York vacated four major provisions of the DOL’s FFCRA regulations: (1) the DOL's health care provider definition; (2) the exclusion of FFCRA leave benefits to workers whose employers have no work to assign them; (3) the requirement that employees obtain their employer’s consent to intermittent leave; and, (4) the requirement that employees provide notice of leave prior to taking the leave. The court’s order does not constitute binding precedent or explicitly enjoin the DOL from enforcing those regulations in other jurisdictions. However, in lieu of updated regulations from the DOL, employers should consider the possibility of facing similar FFCRA leave claims and proceed carefully.
On August 28, 2020, the DOL updated its FFCRA Frequently Asked Questions and Answers Guidance to clarify paid sick leave and paid family leave eligibility in the context of the varied school reopening plans going into effect across the country. In an apparent response to a federal court’s ruling invalidating a portion of the DOL’s FFCRA regulations on intermittent leave (discussed above), the DOL now takes the position that when a school operates on a hybrid schedule, employees may take FFCRA leave on days where the child is attending on a remote basis. However, the DOL stood by its position that if the school is open for in-person learning, parents who elect remote instruction may not use FFCRA child care leave.
[UPDATE] On September 11, 2020, the DOL issued a temporary final rule revising its FFCRA regulations to clarify employee rights and employer obligations under the Act in light of the order from the US District Court for the Southern District of New York invalidating a portion of the DOL’s prior regulations (discussed above). This temporary final rule became effective in the Federal Registrar on September 16, 2020. The DOL’s FFCRA Frequently Asked Questions and Answers Guidance has been updated to reflect the regulatory changes made by this final rule, including:

Reaffirming and providing additional explanation for the requirement that employees may take FFCRA leave only if work would otherwise be available to them.
Reaffirming and providing additional explanation for the requirement that an employee have employer approval to take FFCRA leave intermittently.
Revising the definition of “healthcare provider” to include only employees who meet the definition of that term under the Family and Medical Leave Act regulations or who are employed to provide diagnostic services, preventative services, treatment services or other services that are integrated with and necessary to the provision of patient care which, if not provided, would adversely impact patient care.
Clarifying that employees must provide required documentation supporting their need for FFCRA leave to their employers as soon as practicable.
Correcting an inconsistency regarding when employees may be required to provide notice of a need to take expanded family and medical leave to their employers.

CARES Act: On March 25, 2020, the U.S. Senate passed the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”), which provides over 2 trillion dollars for public health spending to confront the COVID-19 pandemic, immediate cash relief and unemployment benefits for individuals, small business loan programs, state and local government assistance, and targeted relief for certain industries.

On March 27, 2020, the bill passed the House and has been signed into law.
Paycheck Protection Program and Economic Injury Disaster Loan Program

On March 31, 2020, the Treasury Department issued two sets of guidance on the paycheck protection program (“PPP”) under the CARES Act. The Small Business Association (“SBA”) also released guidance on the PPP and other programs for small businesses under the CARES Act. There are multiple links within each linked guidance with additional information and forms regarding PPP loans.
Small Business Owners and others interested in the PPP and Economic Injury Disaster Loan (“EIDL”) programs made available under CARES Act should check in on their local SBA District Office’s website for location-specific resources and guidance. For example, the Orange County/Inland Empire District Office is hosting webinar sessions to answer questions about these programs. The District Office’s “Updates” webpage indicates that these webinars will be available twice daily throughout the week of April 6, 2020.
On April 9, 2020, the Federal Reserve announced it would provide up to an additional $2.3 trillion in loans by setting up new loan programs and bolstering existing loan programs, including the PPP. The Federal Reserve’s actions include supplying liquidity to financial institutions participating in the PPP, offering up to $500 billion in lending to states and municipalities with support from funds appropriated by the CARES Act, and establishing a $600 billion “Main Street Lending Program” which will offer 4-year loans, with one year of deferred principal and interest payments, to companies with up to 10,000 workers or with revenues of less than $2.5 billion. Many of the conditions and restrictions applicable to direct loan programs under the CARES Act will also apply to companies participating in the Main Street Lending Program.

Please note that small businesses participating in the PPP are not precluded from taking out Main Street loans.
For more information about the small business loan programs available under the CARES Act, please visit Nossaman’s recent eAlert, Finding the Right Fit Under CARES: Understanding the SBA Loan Programs Available Under the CARES Act and Determining Eligibility and Business Need.

On April 10, 2020, the SBA filed an interim final rule outlining the key provisions of SBA’s implementation of the PPP provisions within the CARES Act. The interim final rule is schedule to be filed in the Federal Register on April 15, 2020.
Also on April 10, 2020, the SBA filed an interim final rule with additional guidance regarding the application of certain “affiliate rules” relating to the SBA’s implementation of the PPP. This interim final rule is scheduled to be published on April 15, 2020.

SBA Affiliate Rules: In most cases, a borrower will be considered together with its affiliates for purposes of determining eligibility for the PPP, subject to an exception for “faith-based organizations” as set forth in the interim final rule.

On April 15, 2020, the SBA updated its PPP guidance. The guidance provides answers to frequently asked questions about PPP loans, and is updated regularly.
On April 17, 2020, the SBA updated its PPP guidance with answers to questions concerning whether lenders can accept electronic documents as permitted under the E-Sign Act (Pub. L. 106-229) and whether lenders can sell PPP loans into the secondary market.
On April 20, 2020, the SBA published an interim final rule providing guidance for individuals with self-employment income who filed a Form 1040, Schedule C. This rule also addresses eligibility issues for certain business concerns and requirements for certain pledges of PPP loans.
On April 23, 2020, Congress passed the Paycheck Protection Program and Health Care Enhancement Act (H.R. 266) in response to the COVID-19 pandemic. The President has said that he will sign the legislation into law. H.R. 266 will provide an additional:

$310 billion to the PPP, with $60 billion set-aside for loans issued by smaller lenders;
$10 billion for EIDL grants and an additional $50 billion for loans;
$75 billion to the Department of Health and Human Services Public Health and Social Services Emergency Fund for health care providers and COVID-19 response; and
$25 billion to the Public Health and Social Services Emergency Fund for COVID-19 testing.

On April 26, 2020, the SBA updated its PPP guidance to clarify that although all employees, including part-time employees, must be included in determining eligibility, only full-time employees are considered in calculating loan forgiveness.
On April 28, 2020, the SBA updated its PPP guidance to clarify that businesses owned by private companies and business owned by public companies may apply for PPP loans only if they can certify in good faith that the PPP loan is necessary to support ongoing operations in light of current economic uncertainty.
On April 27, 2020, the SBA filed an interim final rule supplementing previously posted interim final rules with additional guidance regarding promissory notes, authorizations, affiliation, and eligibility under the CARES Act.
On April 27, 2020, the Treasury Department filed an interim final rule authorizing all lenders eligible to originate loans under the PPP to use an alternative criterion for calculating the maximum loan amount for PPP loans issued to seasonal employers.
On April 29, 2020, the SBA filed an interim final rule clarifying lender requirements for disbursements of PPP loans.
On May 4, 2020, the SBA updated its PPP guidance on the PPP, including a clarification that PPP loan forgiveness will not be reduced where an employee is laid off, and subsequently refuses an offer to return to his or her position.
On May 5 and 6, 2020, the SBA updated its PPP guidance on the PPP to advise borrowers that the repayment safe-harbor date has automatically been extended from May 7 to May 14, 2020. Business that repay their loans by that date will be deemed by the SBA to have made the required certification of need (on the Borrower Application Form) in good faith, and are also eligible for the Employee Retention Credit. The SBA also clarified PPP applicants must count all employees, both foreign and domestic, for purposes of the 500-employee limit for loan eligibility.
On May 5, 2020, the SBA filed an interim final rule addressing nondiscrimination obligations and additional eligibility criteria.
On May 11, 2020, the SBA filed an interim final rule extending the date by which certain Paycheck Protection Program borrowers may repay their loans from May 7, 2020 to May 14, 2020, in order to avail themselves of a safe harbor with respect to a certification required by the Act, and makes other conforming changes.

On May 13, 2020, the SBA withdrew this interim final rule, and filed a new interim final ruleextending the safe harbor for returning PPP loans from May 14 to May 18, 2020. This interim final rule is scheduled to be published on May 19, 2020.

On May 13, 2020, the SBA updated its PPP guidance with guidance as to how the SBA will review borrowers’ good-faith certifications of need. The updated FAQ also notes that the repayment safe harbor has been automatically extended to May 18, 2020.
On May 13, 2020, the SBA filed an interim final rule providing guidance on lenders’ ability to increase PPP loans to partnerships or seasonal employers under specified circumstances.
On May 13, 2020, the SBA filed an interim final rule providing guidance on lenders’ ability to increase PPP loans to partnerships or seasonal employers under specified circumstances. This interim final rule is scheduled to be published May 19, 2020.
On May 15, 2020, the SBA released the PPP Loan Forgiveness Application form for borrowers.
On May 18, 2020, the SBA filed an interim final rule supplementing previously published guidance regarding eligibility requirements related to entities with foreign affiliates. This interim final rule is scheduled to be published May 21, 2020.
On May 19, 2020, the SBA updated its PPP guidance to clarify that the deadline for lenders to complete the initial SBA Form 1502 reporting process is the later of May 29, 2020, or 10 calendar days after disbursement or cancellation of a PPP loan.
On May 20, 2020, the SBA filed an interim final revising the interim final rule posted on May 8, 2020, by extending the date by which certain PPP borrowers may repay their loans from May 14, 2020 to May 18, 2020, in order to avail themselves of a certification safe harbor, and by extending the timeframe for submission of the initial SBA Form 1502 report for PPP loans to the later of May 29, 2020 or 10 calendar days after disbursement or cancellation of a PPP loan.
On May 22, 2020, the SBA filed an interim final rule to help PPP borrowers prepare and submit loan forgiveness applications as provided for in the CARES Act, help PPP lenders who will be making the loan forgiveness decisions, and inform borrowers and lenders of SBA’s process for reviewing PPP loan applications.
On May 22, 2020, the SBA filed an interim final rule to inform borrowers and lenders of SBA’s process for reviewing PPP loan applications and loan forgiveness applications.
On May 28, 2020, the SBA and Treasury Department announced that $10 billion will be set aside for Round 2 PPP funding, which will be lent exclusively Community Development Financial Institutions (“CDFIs”). CDFIs work to expand economic opportunity in low-income communities by providing access to financial products and services for local residents and businesses.

Paycheck Protection Program Flexibility Act

On June 5, 2020, the President signed into law the Paycheck Protection Program Flexibility Act of 2020 (“PPPFA”). This PPPFA loosens the strict requirements on how employers may spend PPP funds to obtain loan forgiveness. For example, the PPPFA reduces the percentage of the loan that must be used on payroll expenses from 75% to 60%, provides borrowers with the option to extend the period during which they must spend loan proceeds from eight weeks to twenty four weeks (addressing the needs of businesses that have been unable to reopen), removes the requirement that borrowers make payments while awaiting a loan forgiveness decision, and permits borrowers to defer payroll taxes, among other provisions.
On June 12, 2020, the SBA issued an interim final rule implementing the PPPFA and expanding eligibility for businesses with owners who have past felony convictions. The SBA also updated its borrower and lender application forms in conformity with the PPPFA.
On June 16, 2020, the SBA revised its Loan Forgiveness Application and Instructions for borrowers in conformity with the PPPFA. The SBA also released a new EZ PPP Loan Forgiveness Application and Instructions to streamline the process for borrowers who:

Are self-employed or have no employees;
Did not reduce employee wages by more than 25% and did not reduce the number or hours of their employees; or,
Experienced reductions in business activities as a result of COVID-19 directives and did not reduce the wages of their employees by more than 25%.

On June 17, 2020, the SBA issued an interim final rule revising the third and sixth interim final rule posted on the SBA’s website on April 14, 2020 and April 28, 2020, by changing provision to conform to the PPPFA. Several of these amendments are retroactive to the date of the enactment of the CARES Act.
On June 19, 2020, the SBA issued a Procedural Notice to provide guidance for when PPP loan proceeds must be used for loans received under the SBA EIDL program.
On June 22, 2020, the SBA issued an interim final rule revising interim final rules posted on the SBA’s website on May 22, 2020, by changing key provisions to conform to the PPPFA. Several of these amendments are retroactive to the date of the enactment of the CARES Act.
On June 24, 2020, the SBA revised its borrower and lender application forms.
On June 25, 2020, the SBA issued an interim final rule supplementing previously posted interim final rules by providing additional guidance on eligible payroll costs that may be submitted on PPP loan applications by certain fishing boat owners or operators.
On June 25, 2020, the SBA updated its PPP guidance to explain that PPP loans received before June 5, 2020 (i.e., enactment of the PPPFA) have a maturity rate of two years, while PPP loans received after June 5, 2020, have a five-year maturity date. A borrower and lender may mutually agree to extend the term of a PPP loan from two years to five years for loans received before June 5, 2020.
On June 26, 2020, the SBA issued guidance to assist businesses in calculating their payroll costs for purposes of determining maximum loan amounts that the business may apply for under the PPP.
On July 4, 2020, President Trump signed 4116 into law, which (1) reauthorizes lending under the PPP through August 8, 2020; and (2) separates the authorized limits for commitments under the PPP from other SBA loan programs.
On August 8, 2020, the SBA issued a notice on its website stating that the PPP was set to expire on August 8, 2020, and as such, the SBA will no longer accepting PPP loan applications from participating lenders after this date.
On August 11, 2020, the SBA updated its PPP guidance to clarify that the payment of fees to an agent or third party is not material SBA’s guarantee of a PPP loan or to SBA’s payment of fees to lenders. The updated guidance also indicates that payments for vision and dental benefits are “payments for the provision of group health care benefits” under the PPP.
On August 11, 2020, the SBA released guidance for businesses seeking to qualify for PPP loan forgiveness.
On August 11, 2020, the SBA issued an interim final rule supplementing previously posted interim final rules on Loan Review Procedures and Related Borrower and Lender Responsibilities, in order to inform PPP borrowers and lenders of the process for a PPP borrower to appeal certain SBA loan review decisions under the PPP to the SBA Office of Hearings and Appeals.
On August 25, 2020, the SBA issued an interim final rule supplementing previously posted interim final rules by addressing limitations on the eligibility of certain non-payroll costs for loan forgiveness, and also provides guidance on the applicability of owner compensation rules for forgiveness purposes.

Unemployment Insurance Programs Under CARES Act

On March 27, 2020, the House Committee on Ways & Means issued guidance and a FAQ on the provisions related to unemployment compensation in the Senate-passed CARES Act. The Committee has also issued a FAQ relating to the financial assistance made available to individual under the CARES Act.
On April 2, 2020, the DOL released Unemployment Insurance Program Letter (“UIPL”) No. 14-20, which provides states with a summary of the unemployment insurance provisions within the CARES Act.

UIPL Letter No. 14-20 provides a helpful overview of the unemployment benefit programs provided by the CARES Act.

On April 4, 2020, the DOL released UIPL No. 15-20, which provides states with operating, financial and reporting instructions for the Federal Pandemic Unemployment Insurance Program (“FPUC”) created by the CARES Act.

The FPUC provides an additional $600 per week to individuals who are collecting regular unemployment compensation, Pandemic Emergency Unemployment Compensation, Pandemic Unemployment Assistance, Extended Benefits, Short-Time Compensation/Work Sharing, Trade Readjustment Allowances, Disaster Unemployment Assistance, and/or Self-Employment Assistance. Benefits under the FPUC are available through July 31, 2020.

On April 5, 2020, the DOL released UIPL No. 16-20, which provides States with operating, financial and reporting instructions for the Federal Pandemic Unemployment Assistance (“PUA”) Program created by the CARES Act.

PUA provides unemployment benefits to individuals who are not eligible for unemployment benefits under state or federal law, including individuals who have exhausted all rights to such benefits, are self-employed, are seeking part-time employment, lack sufficient work history, are independent contractors, or are gig workers.
In lieu of the maximum unemployment benefits under state law (usually 26 weeks) and the unemployment benefits payable through the Pandemic Emergency Unemployment Compensation (13 weeks), PUA provides otherwise ineligible individuals with up to 39 weeks of unemployment benefits.

On April 10, 2020, the DOL released UIPL No. 17-20, which provides states with operating, financial and reporting instructions for the Pandemic Emergency Unemployment Compensation (“PEUC”) program created by the CARES Act.
PEUC provides eligible individuals with up to 13 additional weeks of unemployment benefits to individuals who have exhausted their regular unemployment compensation entitlement.
This guidance clarifies that the payment of state extended benefits (“EB”) under state unemployment insurance programs (e.g., “extended duration awards” in California) must be deferred until after the individual has exhaust his or PEUC entitlement. UIPL 14-20 offers further guidance on the coordination of federal and state unemployment insurance programs.
Generally, the order in which an unemployed individual becomes entitled to federal and state unemployment insurance programs is as follows:

Regular state unemployment compensation (“UC”), which is provided for up to 26 weeks in California;
Once UC is exhausted, the individual may then be eligible for PEUC for a maximum of 13 weeks;
Once PEUC is exhausted, the individual may be entitled to EB if the state’s extended program has been triggered under the Federal-State Extended Unemployment Compensation Act of 1970 and applicable state law.

In California, there are multiple scenarios that trigger extended duration awards, including where the unemployment rate reaches or exceeds 6 percent. (See Code, § 4003.) Extended duration awards are available for up to 13 weeks, subject to conditions relating to California’s insured unemployment rate and federal authorization.

If EB is not available, either because the state did not trigger on to EB or because the individual exhausted his EB entitlement, the individual may be eligible to receive PUA. These benefits are available for a maximum of 39 weeks, minus any weeks that the individual received UC and/or EB. The receipt of PEUC does not affect an individual’s PUA benefits.

Note that individuals receiving any of the above benefits may be entitled to FPUC, which provides an additional $600 per week, through July 31, 2020.

On April 27, 2020, the DOL published UIPL 16-20 Change 1 to address questions about the PUA program’s operations and to provide further guidance.
On April 27, 2020, the DOL published UIPL 18-20 to provide states with instructions for implementing the emergency unemployment relief for state and local governmental entities, certain non-profit organizations, and Federally-recognized Indian Tribes in Section 2103 of the CARES Act.
On April 29, 2020, the DOL published UIPL 19-20 to provide state workforce agencies guidelines and key dates for the completion of the 2020 Unemployment Insurance Benefit Accuracy Measurement (“BAM”) paid and denied claims sample cases and the publication of 2020 BAM data.
On April 30, 2020, the DOL published UIPL 20-20 to provide states with operating, financial, and reporting instructions for the full federal funding of the first week of unemployment compensation authorized by section 2105 of the CARES Act.
On May 3, 2020, the DOL published UIPL 21-20 to provide states with an overview of the Short-Term Compensation (“STC”) provisions within the CARES Act, and to provide guidance regarding 100 percent federal reimbursement of certain state STC payments.

The STC program (also known as “work-sharing” in California) is a layoff aversion program in which an employer, under a state-approved plan, reduces the hours for a group of workers and these workers in turn receive a reduced unemployment benefit payment.

On May 9, 2020, the DOL published UIPL 15-20 Change 1, which answers 18 frequently asked questions regarding unemployment insurance program eligibility, payment frequency, and federal income tax liability, among other topics.
On May 10, 2020, the DOL published UIPL 22-20 to provide guidance on the process to apply for grants under Section 2110 of the CARES Act, which supports the Secretary of Labor’s commitment to provide resources and assistance during re-opening of businesses and help employers and workers avert layoffs.
On May 11, 2020, the DOL published UIPL 23-20 to provide states with guidance regarding required program integrity functions for state unemployment insurance programs. UIPL 23-20 also provides guidance regarding the required integrity functions for the PUA, FPUC, and PEUC unemployment insurance programs established by the CARES Act.
On May 14, 2020, the DOL published UIPL 24-20 to provide guidance relating to the federal-state extended benefits (EB) program and temporary changes to the program under the FFCRA and CARES Act. A Frequently asked questions about the temporary changes to EB programs are provided in an attachment to UIPL 24-20.
On May 19, 2020, the DOL issued a press release reiterating the obligations of employers, employees, and all workforce partners to protect the integrity of the unemployment insurance systems. To that end, the DOL has aggregated a list of all state unemployment insurance fraud hotlines, and asks that instances of fraud, waste, and abuse be submitted to the Department’s Office of the Inspector General.
On June 15 2020, the DOL published UIPL 25-20 to provide state workforce agencies with guidance on changes to the Benefit Accuracy Measurement (“BAM”) program as a result of issues arising from COVID-19. The BAM is one of the most important tools to measure UI payment integrity. The large increase in UI workloads due to the CARES Act require changes to the BAM to ensure accurate and timely reporting of BAM data.
[UPDATE] On August 28, 2020, the DOL Employment and Training Administration released UIPL 16-20, Change 3, which provides states with guidance regarding the eligibility of individuals who are caregivers for PUA benefits under the CARES Act.

On May 15, 2020, the House passed the “Health and Economic Recovery Omnibus Emergency Solutions Act,” also known as the “HEROES Act,” which would authorize $3 trillion for another round of economic impact payments, an extension to the FPUC (which provides an additional $600 weekly federal unemployment benefit), federal hazard pay for essential workers, and $1 trillion to state and local governments, among other provisions. The HEROES Act kicks off congressional negotiations on a Phase 4 coronavirus bill.
On June 8, 2020, the Federal Reserve released guidance on its Main Street Lending Program, which was recently expanded to serve more small and medium-sized businesses. The Federal Reserve lowered the minimum loan amount to $250,000; raised the maximum loan limit to $35 million for new loans, $50 million for priority loans, and $300 million for expanded loans; adjusted the principal repayment schedule to begin after two years; and extended the loan term to five years.
On July 22, 2020, the CDC issued guidance to provide employers with strategies for incorporating SARS-CoV-2 testing strategies into a workplace COVID-19 preparedness, response, and control plan.
On August 12, 2020, the DOL issued guidance to help states implement the Lost Wages Assistance (LWA) program, which provides up to $400 per week of additional unemployment insurance benefits to workers displaced by the pandemic. President Trump authorized the LWA program by Presidential Memorandum on August 8, 2020, after negotiations collapsed on a Phase 4 coronavirus relief bill.
On August 17, 2020, the DOL issued additional guidance to address questions raised by states about LWA program, in addition to an LWA Payment Assistance Fact Sheet and Frequently Asked Questions
On August 24, 2020, the DOL Wage and Hour Division (WHD) issued Field Assistance Bulletin (FAB) 2020-5to clarify an employer’s obligation to track the number of hours of compensable work by employees who are teleworking or otherwise working away from premises controlled by their employers.
On August 28, 2020, the Department of Treasury and the IRS issued guidance to employers who elect to defer payroll taxes pursuant to President Trump’s August 8, 2020, Executive Order. The guidance clarifies that:

Deferral is available for the employee share of social security taxes or railroad fund equivalent. Employers cannot defer their own share of any payroll taxes.
Deferral is available on wages and compensation paid to an employee on a pay date during the period beginning on September 1, 2020, and ending on December 31, 2020, but only if the amount of wages or compensation paid for a bi-weekly pay period is less than $4,000, with each pay period considered separately.
No election is necessary to defer the employee’s share of payroll taxes. The Executive Order automatically extends the due date for withholding and payment of the taxes until the period beginning on January 1, 2021 and ending on April 30, 2021.
An employer must withhold and pay the applicable taxes that were deferred under the Executive Order ratably from wages and compensation between January 1, 2021 and April 30, 2021. If payment is not made, interest, penalties, and additions to tax will begin to accrue on May 1, 2021. If necessary, the Guidance notes that employers may make other arrangements to collect the taxes from the employee.

Employers should work with counsel to ensure they are meeting their statutory and regulatory obligations under the laws touched upon in this Quick Reference Guide.

Federal Employment Law Resources & Guidance

Latest update on 09.23.2020 at 4:15 p.m. PT

Federal Employment Law Resources & Guidance

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