Small Businesses

Governor Carney Announces Interim Steps Allowing Small Businesses to Expand their Services with Social Distancing in Place

Effective Friday, May 8, Delaware will enforce new steps to provide economic relief to business owners. 

  • Small business Retailers will be allowed to do business using curbside pickup as long as social distancing can be maintained.  These retailers include:
    • Clothing stores
    • Shoe stores
    • Sporting goods, hobby, musical instruments
    • Book, periodical, music stores
    • Department stores
    • Tobacco and Vape
    • Other general merchandise
    • Office supply, stationery, and gift stores
    • Used merchandise stores
    • Consumer goods rental
  • Jewelry stores may do business by appointment only, and the Governor has instructed the Division of Small Business to consider additional changes like this for other similar retailers. 
  • Cosmetology: Hair care services only are permitted to be offered, and only to workers at essential businesses. Guidelines include:
    • No more than two appointments at a time per location (and never more than the number of available staff, so just one for a sole proprietor). Need to leave 15 minutes between appointments for proper cleaning. 
    • Employees and customers must wear cloth face masks at all times, and customers must cancel appointments if they have any reason to believe they may be ill or may have come into contact with the virus.
    • Staff must wear disposable gloves when providing services and must throw away gloves between customers and wash hands.
    • Employers must require employees to report their temperature daily — above 99.5 means they are ineligible to work.
    • Customer stations must be sanitized between use, along with any equipment used for the customer. In addition, any item a customer handles (like a magazine) must leave with the customer.
    • Entrance doors must remain locked to outside to prevent walk-ins.
  • Other
    • Golf carts allowed at courses for 1 rider at a time with proper cleaning between customer
    • Drive thru movies are permitted, but patrons must remain inside vehicles and social distancing must be maintained at all times.

Employees required to report to work as a result of these changes will now be permitted to utilize child care services, provided neither parent works from home and they do not have alternate care.

As always, should you have any questions or concerns, Allen & Associates is here to assist you. 

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Thirteenth Modification: State of Emergency Declaration

On April 25, 2020, Governor, John Carney, issued the thirteenth modification of the Declaration of a State of Emergency for the State of Delaware. The thirteenth modification states, effective April 28, 2020, all individuals in the State of Delaware must wear face covering masks in public settings. Specifically, in settings where social distancing regulations may be difficult to follow. 

Pursuant to the thirteenth modification, effective May 1, 2020, all essential employers must provide its employees with face covering masks and hand sanitizer, at their expense, where contact with the public is likely and where employees may be within the 6 foot radius of fellow staff. If an entering customer refuses to wear a face covering for a non medical, non documented reason, then the employer must refuse entry to this individual. 

All employers shall post the requirements at the entrance of the business, as well as clearly visible signs throughout the vicinity to remind employees and customers of the requirements. 

For more information on the thirteenth modification of the Declaration of a State of Emergency for the State of Delaware, please follow the link below. 

https://governor.delaware.gov/health-soe/thirteenth-state-of-emergency/

As always, should you have any questions or concerns during these difficult times, Allen & Associates is here to assist you.

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Families First Coronavirus Response Act What you Need to Know!

Families First Coronavirus Response Act

What you Need to Know!

President Donald Trump signed the Families First Coronavirus Response Act into law on March 18, 2020. The law provides paid leave benefits for people affected by COVID-19 (coronavirus). It also applies to employers with 500 or fewer employees. Companies with fewer than 50 employees can opt out of the provisions if this “would jeopardize business viability.” The new law takes effect on April 2, 2020 and will remain effective until December 31, 2020.

Emergency Paid Family Leave

This law includes amends the Family Medical Leave Act (FMLA), which requires the qualified employers to provide “emergency” FMLA leave. Specifically, employers must provide up to 12 weeks of leave for “a qualifying need related to a public health emergency” to employees who have been on the payroll for 30 calendar days or more. The qualifying need is limited to circumstances where an employee is unable to work due to taking care of a minor child if the child’s school has been closed. The first 10 days of the leave period are allowed to be unpaid but the remaining weeks must be paid. Also, there is a cap on the amount an employee can earn (based on their salary or hourly wage) a day at $200 or $10,000 total and will expire at the end of the year.

Additionally, an employee that has already exhausted their FMLA leave during the 12-month period is not entitled to additional 12 weeks of leave under FMLA. This employee would still be eligible for two weeks of Emergency Paid Sick Leave under the Act.

Emergency Paid Sick Leave

The bill also requires private employers to provide 80 hours of paid-sick leave benefits for qualifying employees that fall under any of the six categories:

  1. The employee is subject to a federal, state or local quarantine or isolation order related to COVID-19;
  2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  3. The employee is experiencing symptoms of COVID-19 and seeking medical diagnosis;
  4. The employee is caring for an individual who is subject to a federal, state or local quarantine order, or the individual has been advised to self-quarantine due to concerns related to COVID-19;
  5. The employee is caring for the employee’s son or daughter, if the child’s school or child care facility has been closed or the child’s care provider is unavailable due to COVID-19 precautions; or
  6. The employee is experiencing any other substantially similar condition specified by Health and Human Services in consultation with the Department of the Treasury and the Department of Labor.[1]

 

The Paid-sick-leave benefits are capped at $511 a day for a worker’s own care and $200 a day for when an employee is caring for someone else. Furthermore, if your company already offers paid sick leave, the Act grants eligible paid sick leave “in addition to” any preexisting leave and employers are prohibited from changing existing paid leave policies.

 

What is the cost to the employers?

The Paid-sick-leave benefits are capped at $511 a day for a worker’s own care up to $5,1100

and $200 a day for up to a total of $2,000.00 when an employee is caring for someone else.

 

The bill includes refundable tax credits for employers that are required to offer Emergency FMLA or paid sick leave. Specifically, employers will be allowed to take a tax credit against payroll taxes in an amount equal to 100 percent of Paid Family Leave or Paid Sick leave wages for each quarter of the calendar year.

Paid leave under the act for an employee shall be calculated shall total not less than two-thirds of employee’s regular rate of pay and for the number of hours the employee would otherwise be normally scheduled to work.

 

How is emergency leave calculated for hourly employees?

For hourly employees that work a varying schedule, the Act requires employers to look at the preceding six-month period to determine the employee’s average hours. For newer hires, the calculation should be based on the reasonable expectation of the hours they agreed upon when they were hired the average number or the hours per day that the employee would normally be scheduled to work.

What is an Employer’s obligation for restoring employees?

Employers with 25 or more employees are required to make reasonable efforts to restore the employee to a position equivalent to the position the employee held when the leave commenced, with equivalent employment benefits. Employers with fewer than 25 employees do not have to restore employees under certain circumstances.

What if an employer does not comply?

Employers who violate the Act shall be considered to have failed to minimum wages under the Fair Labor Standards Act and are subject to the same penalties. Employers may not take an adverse action against an employee who takes leave under the Act or who files a complaint relating to the Act.

Must an employer provide notice of this Act to its employees?

Yes, a notice is being prepared by the United States Department of labor that the employer must post and keep posted.

What if the employer has less than 50 employees?

Department of Labor is to exempt small businesses with less than 50 employees if the imposition of the Act’s requirements would “jeopardize the viability of the business.”

Conclusion

Importantly, because the coronavirus outbreak is an emerging and rapidly developing situation, employers should continue to monitor information and recommendations from the CDC, OSHA, the U.S. State Department, and other federal, state, and local government agencies involved in the response.

Employers and Employees are encouraged to communicate and work with legal counsel when navigating these complex issues.

For further information or advice on how to satisfy notice requirements and implementation of evolving State and Federal laws, contact Allen & Associates.

[1] https://www.natlawreview.com/article/house-modifications-to-hr-6201-families-first-coronavirus-response-act

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Delaware House of Representatives to Vote on Marijuana Legalization Bill

On June 5th the Delaware House Revenue and Finance Committee voted in favor of House Bill 110, creating the Delaware Marijuana Control Act. The Delaware Marijuana Control Act regulates and taxes marijuana in the same manner as alcohol. The act allows adults over the age of 21 to legally possess and consume under one ounce of marijuana for personal use. Also, it permits the operation of marijuana businesses if they operate under licenses granted under Chapter 49A of Title 16 but imposes the same limits on hours and holiday sales as apply to sales of alcohol. The bill now turns to the full House, where 25 votes is needed to advance to the Senate.

Furthermore, the Act states that employers are not required to permit the use, consumption, possession, transfer, display, transportation, sale, or growing of marijuana while the employee is at work. Also the act states that nothing in this chapter is intended to affect the ability of employers to: (1) Have policies restricting the use of marijuana by employees at work; (2) Have policies necessary to prevent the loss of a monetary or licensing-related benefit under federal law or regulations; (3) Discipline employees under policies necessary to prevent the loss of a monetary or licensing-related benefit under federal law or regulations; or (4) Discipline employees who are under the influence of marijuana at work.

Delaware Sexual Harassment Prevention Training Law and the Importance of the Continuing Advancement of the #MeToo Movement

States all across the U.S. have been continuing to create new laws and advancements in accordance with the ‘Me Too’ movement. The ‘Me Too’ movement which was founded in 2006 to help survivors of sexual violence. The goal of the ‘Me Too’ movement is to develop a conversation around sexual violence and in 2006 the hashtag #MeToo went viral and started a crucial conversation about sexual violence nationally.

To collaborate with the ‘Me Too’ movement and to try to avoid sexual harassment and violence in the workplace many states are passing several new sexual harassment training laws. Delaware has passed a law that went into effect on January 1st, 2019 that requires employers with at least 50 employees in the state to conduct anti-sexual mandatory training that must be completed by January 2020 for existing employees and then for new employees within one year of the start.  The training must address the illegality of sexual harassment, define sexual harassment and even give examples, detail the legal remedies that are available to the employee, and finally instruct employees that retaliation is prohibited.

This new Delaware law under the Delaware Discrimination Employment Act also affects employers with at least four employees within the state as they are now required to issue an information sheet on sexual harassment that is issued by the Delaware Department of Labor to all new employees when they start employment. This information sheet is to inform new employees of their right to be free from sexual harassment and how to report sexual harassment. Employers must distribute this information sheet to new employees at the commencement of employment and to existing employees by Jul 1, 2019.

The Delaware Discrimination Employment Act protects all individuals in all workplaces. Some examples of sexual harassment include but are not limited too unwelcome or inappropriate touching, making sexual comments about an individual’s appearance, body, or the way they dress, or making sexist remarks or derogatory comments based on gender.

#Me Too’s Not Going Away

 

According to the Equal Employment Opportunity Commission’s Chair Victoria Lipnic, workers stepping forward to report claims of sexual harassment isn’t likely to slow down anytime soon.

In the year since the #Me Too movement took off, the EEOC has launched 50 % more sexual harassment lawsuits than it did the previous year. The EEOC data shows that a 12 % increase in sexual harassment complaints from 2017 to 2018.

Workers will find it easier to Sue their Unions for Negligence

 

A new policy implemented by the National Labor Relations Board could cause a major increase in litigation at a time when unions are already struggling to retain members and stabilize finances.

According to the NLRB, unions that do not properly process workers’ grievances will be presumptively considered liable unless they can prove otherwise.  “In cases where a union asserts a mere negligence defense based on its having lost track, misplaced or otherwise forgotten about a grievance, whether or not it had committed to pursue it, the union should be required to show the existence of established, reasonable procedures or systems in place to track grievances, without which, the defense should ordinarily fail,” said NLRB General Counsel Peter Robb.

Similarly, a union’s failure to keep a worker fully appraised of its efforts to pursue a grievance constitutes more than negligence and itself would, therefore, be a violation.  According to the memorandum sent to the Board of Regional directors, it is unclear how often unions fail to represent workers, but the memo said the change was prompted by an “increasing number of cases” in which unions defended themselves from worker complaints by asserting a “mere negligence” defense. “Mere negligence” asserts that if the union messed up, it wasn’t because it was acting in bad faith.

A New York based labor side attorney said the general counsel’s shift could be a serious problem for some unions. There are unions that have thousands of members and professional staff and would be expected to be able to follow up on this.

 

EEOC Sues Connections CSP For Disability Discrimination

The Americans with Disabilities Act of 1990 prohibits employers from discriminating against employees or applicants with disabilities in all aspects of employment including hiring, pay, promotion, firing, and much more.

Recently, a human services provider unlawfully fired employees who needed medical leave. According to the EEOC, Connections CSP, Inc. is one of Delaware’s Largest non-profit organizations that provides health care, housing and employment opportunities, unlawfully denied reasonable accommodations to a class of employees and fired them pursuant to an inflexible maximum-leave policy.

According to the EEOC’s suit, Connections enforced a fixed leave policy that did not provide reasonable accommodation for qualified individuals with disabilities when, as a matter of course, it refused to provide leave beyond the 12 weeks allowed under the FMLA. Connections denied other forms of reasonable accommodations that would have allowed qualified individuals with disabilities to remain employed, such as reassignment to vacant positions. The ADA also requires an employer to provide reasonable accommodations such as modifying leave policies to grant additional unpaid leave or transferring an employee to a vacant position for which the employee is qualified, unless the employer can provide that it would be an undue hardship.

While employers may have leave policies that establish the maximum amount of leave an employer will provide or permit, the ADA requires that the employer modify those policies and grant additional leave as a reasonable accommodation to employees who need it because of a disability. According to the EEOC, “Rigid maximum-leave” policies even if they comply with other laws, still violate the ADA when the policy mandates the termination of Employees. Therefore, Connections CSP violated the ADA policy by refusing to modify its inflexible, maximum leave policy, or provide other reasonable accommodations as required by law.