COVID In 2022: Legal Resource Page
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Entering 2022, the pandemic is clearly not over. Some of the concerns individuals and small businesses had at the outset remain the same, but the landscape has also evolved over the past many months, and some of the legal and business issues people are facing have changed. We have archived our prior articles here. Below is some updated information about the most common COVID-related legal issues our clients are facing in 2022.
Employee Sick Time and Medical LeaveThe Families First Coronavirus Relief Act ("FFCRA") provided important protections for workers who needed time off due to illness or quarantine related to COVID-19. The mandatory leave provisions expired at the end of 2020, but the federal tax credits available to employers who choose to provide the emergency sick leave were extended several times.
Massachusetts enacted a law effective May 28, 2021, requiring employers to provide certain paid sick leave benefits in the event an employee becomes ill with COVID or has to quarantine due to a known exposure. For employees who regularly work 40 or more hours per week, employers must provide up to 40 hours paid time for COVID related reasons. For part time employees or employees with variable work schedule, the pay must be equal to the average number of weekly hours worked, or the six month average of scheduled hours for employees with variable schedules. In addition, and independent of COVID 19, Massachusetts law requires all employers to allow a certain amount of sick time, and beginning in 2021 eligible employees may take advantage of the Massachusetts Paid Family and Medical Leave program. Massachusetts Earned Sick Time Law: All employers must allow workers to accrue sick time at a rate of one hour for every 30 hours worked, up to a total of 40 hours. Employers with 11 or more part time or full time employees must pay for this sick time. Smaller employers do not have to pay, but must allow for the time off without penalty. Massachusetts Paid Family and Medical Leave ("PFML"): Employees who have contracted COVID, or who are caring for a family member who has contracted COVID, may also qualify for paid medical leave under the PFMLA. If your (or your family member's) illness has caused you to miss work three or more consecutive calendar days, and you have the proper certification from your physician, you may apply for benefits under the PFML. It is important for both employers and employees to understand that taking leave under any of these laws is protected leave. That means that when an employee returns to work, they cannot be subject to retaliation for taking the leave. |
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COVID 19 and Unemployment
In early 2020, the federal CARES Act added significant benefits to the unemployment system, including additional weekly benefits and establishment of pandemic unemployment benefits to allow the self-employed and independent contractors to access benefits during the pandemic.
In part due to the high volume of people applying for unemployment in the first two quarters of 2020, and in part due to the fact that pandemic unemployment was an entirely new concept, there were often long delays, and a lot of confusion, in processing claims. Added to the mix was a wave of identity theft, where people would fraudulently use another individual's information to apply for and collect the enhanced unemployment benefits. This left the real individuals in a bind, and sometimes locked out of their unemployment accounts, when they actually had a need to file. Finally, the federal unemployment funds came with a catch: states are required to try to recoup any amounts paid in error during the pandemic.
The result? Many people who collected unemployment benefits in 2020 and 2021 are being hit with "overpayment" notices, claiming that they should not have received those benefits and have to pay them back. This can be as much as $30,000 or $40,000 in claimed overpayment.
There are two things you need to know if you receive one of these notices. First, you should pay close attention to the appeal rights in the notice. Usually you have a right to submit an appeal within ten days of the notice. This is a simple process that involves requesting an appeal either by sending the form back by regular mail or requesting an appeal in your online account. There will be time after you submit the appeal request to prepare the substance of your appeal and consult an attorney, but you do not want to miss the deadline.
Second, the notice should tell you that you have a right to request a waiver of the overpayment. If the overpayment is "no-fault" (i.e., you submitted the correct information) and repayment would create a financial hardship, the state may waive the amount owed. This is a separate process from appealing the underlying decision. Requesting a waiver does not allow you to contest the determination itself, and does not extend your time to request an appeal. This means that you should always file the appeal request first.
Learn more about what to do if you receive an overpayment notice.
In part due to the high volume of people applying for unemployment in the first two quarters of 2020, and in part due to the fact that pandemic unemployment was an entirely new concept, there were often long delays, and a lot of confusion, in processing claims. Added to the mix was a wave of identity theft, where people would fraudulently use another individual's information to apply for and collect the enhanced unemployment benefits. This left the real individuals in a bind, and sometimes locked out of their unemployment accounts, when they actually had a need to file. Finally, the federal unemployment funds came with a catch: states are required to try to recoup any amounts paid in error during the pandemic.
The result? Many people who collected unemployment benefits in 2020 and 2021 are being hit with "overpayment" notices, claiming that they should not have received those benefits and have to pay them back. This can be as much as $30,000 or $40,000 in claimed overpayment.
There are two things you need to know if you receive one of these notices. First, you should pay close attention to the appeal rights in the notice. Usually you have a right to submit an appeal within ten days of the notice. This is a simple process that involves requesting an appeal either by sending the form back by regular mail or requesting an appeal in your online account. There will be time after you submit the appeal request to prepare the substance of your appeal and consult an attorney, but you do not want to miss the deadline.
Second, the notice should tell you that you have a right to request a waiver of the overpayment. If the overpayment is "no-fault" (i.e., you submitted the correct information) and repayment would create a financial hardship, the state may waive the amount owed. This is a separate process from appealing the underlying decision. Requesting a waiver does not allow you to contest the determination itself, and does not extend your time to request an appeal. This means that you should always file the appeal request first.
Learn more about what to do if you receive an overpayment notice.
Vaccine Requirements and Employment
As employers struggle with how to maintain operations and keep their staff and customers safe during the current Omicron surge, questions frequently arise about whether they can require their employees to show proof of vaccination as a condition of employment.
Can you require proof of vaccination? In most cases, the answer is yes, so long as you are applying your policy in an even-handed, non discriminatory fashion. There are limited exceptions for employees with a medical condition or disability that prevents administration of the vaccine on medical advice, and for employees with a sincerely held religious belief that the vaccine would violate.
Importantly, neither of these are a true "exemption" from a vaccine requirement. Instead, employers are required in those situations only to make "reasonable accommodations" for the employee. This may mean that an employee who does not want to get vaccinated can work remotely, or test frequently, for example. But if those accommodations are not reasonable for the business- for example, if the work must be done in person- the employer may not be required to make the accommodation, and may terminate the individual's employment.
Can you require proof of vaccination? In most cases, the answer is yes, so long as you are applying your policy in an even-handed, non discriminatory fashion. There are limited exceptions for employees with a medical condition or disability that prevents administration of the vaccine on medical advice, and for employees with a sincerely held religious belief that the vaccine would violate.
Importantly, neither of these are a true "exemption" from a vaccine requirement. Instead, employers are required in those situations only to make "reasonable accommodations" for the employee. This may mean that an employee who does not want to get vaccinated can work remotely, or test frequently, for example. But if those accommodations are not reasonable for the business- for example, if the work must be done in person- the employer may not be required to make the accommodation, and may terminate the individual's employment.
Information for Small Business in COVID 2022
The federal loan and grant programs initiated at the beginning of the pandemic are no longer available. Many small businesses, however, continue to be hard hit, especially as the Omicron variant surges through most of our communities.
We have been amazed to watch all of the creative ways in which business owners have revamped their offerings during the pandemic and adapted to what is becoming a new reality. Even so, you may be facing a need to address expenses and other obligations as rising case counts and supply chain issues impact your operations.
If you determine that you need to reduce the number of employees in your business, it is important to seek assistance in the termination process to make sure you are not creating any future legal risk for your business.
You also might want to review your business contracts with an attorney to understand what rights and flexibility you have with your major vendors if you need to modify an existing agreement for some immediate relief on the expense side. Such a review could include an assessment of whether you have a "force majeure" provision in your contracts that would cover effects of the pandemic and excuse your inability to meet the terms of the contract.
We have been amazed to watch all of the creative ways in which business owners have revamped their offerings during the pandemic and adapted to what is becoming a new reality. Even so, you may be facing a need to address expenses and other obligations as rising case counts and supply chain issues impact your operations.
If you determine that you need to reduce the number of employees in your business, it is important to seek assistance in the termination process to make sure you are not creating any future legal risk for your business.
You also might want to review your business contracts with an attorney to understand what rights and flexibility you have with your major vendors if you need to modify an existing agreement for some immediate relief on the expense side. Such a review could include an assessment of whether you have a "force majeure" provision in your contracts that would cover effects of the pandemic and excuse your inability to meet the terms of the contract.
Estate Planning and COVID 19
As we still learn to live with COVID in our world, it is only natural to think about whether our estate plans are in order. For most Americans they are not, even almost two years into the pandemic.
We know how important this is, and we know how important your health and safety are. We have implemented a system where we can discuss your plans, draft your documents, answer your questions and get your estate plan ready to go 100% remotely. During the state of emergency and for a few months after it was lifted, we were also able to witness and notarize your documents remotely by video-conference. That authorization expired in December, 2021, and it remains to be seen whether Massachusetts will pass a permanent law allowing the practice. If that happens, we have experience and processes built during the pandemic and are fully prepared to continue to provide remote notarization. Even if not, we can provide in-person signings either outside or in our large conference room where there is plenty of space to maintain social distance while you sign your documents.
We know how important this is, and we know how important your health and safety are. We have implemented a system where we can discuss your plans, draft your documents, answer your questions and get your estate plan ready to go 100% remotely. During the state of emergency and for a few months after it was lifted, we were also able to witness and notarize your documents remotely by video-conference. That authorization expired in December, 2021, and it remains to be seen whether Massachusetts will pass a permanent law allowing the practice. If that happens, we have experience and processes built during the pandemic and are fully prepared to continue to provide remote notarization. Even if not, we can provide in-person signings either outside or in our large conference room where there is plenty of space to maintain social distance while you sign your documents.
How We Can Help
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We can help answer your specific questions about managing this COVID-19 crisis. We routinely conduct consultations and meetings by phone or video-conference, so you can reach out without increasing your exposure to the virus. You can use the button below to schedule a call back from a member of our team, or give us a call at 781-784-2322.
