AUBURN — It’s a busy time to be a labor and employment lawyer.

Auburn attorneys Michael Malloy of The Malloy Firm and Amy Dieterich of Skelton Taintor & Abbott. Submitted photos

Amy Dieterich of Skelton Taintor & Abbott and Michael Malloy of The Malloy Firm recently offered their insights during the Lewiston Auburn Metropolitan Chamber of Commerce’s regular HR Thursday session around COVID-19 and the workplace.

We asked what legal issues they’re following and what local businesses need to keep up on.

SJ: What issue are you hearing the most questions around right now from employers? Or is it lots of questions about lots of issues? 

AD: The biggest topic we are receiving questions about right now is the implementation of Maine’s paid sick leave law, which goes into effect on Jan. 1, 2021. Many employers are reviewing their existing paid leave policies to make sure they comply with the new law and updating them if they do not.

MM: I’m getting a lot of questions about what I call “secondary COVID” exposure, e.g., an employee has a part-time job somewhere else, or was in touch with a friend or family member, who was then in the vicinity of somebody who tested positive. The employee has not been ordered to quarantine and feels fine, but their presence makes others uneasy. What’s the right response for an employer in that situation given the incubation period for the virus? Fortunately, the enhanced availability of local testing is helping people to work through those situations. Of course, I’m also getting lots of questions about the Maine paid leave law.

SJ: What are you watching most closely?

AD: I am most closely watching the federal government to see whether and how it will extend the Families First Coronavirus Response Act (FFCRA), which is currently set to expire on Dec. 31, 2020. The paid leave created by the FFCRA has been absolutely critical to both employers and employees during the pandemic. On the employee side, they received job-protected paid time off so that they could stay home when they were ordered to self-quarantine or had to supervise their children’s remote learning.

Employers are receiving tax credit for wages paid to employees under the FFCRA, which has lessened some of the financial impact of COVID-19, and they can retain good workers who otherwise might have to quit their jobs entirely. If the federal government does not extend the FFCRA at all and the pandemic continues on the current trajectory, employees — particularly parents — and employers are going to face very tough decisions in January.

MM: I’m watching the Georgia Senate races and wondering what Congress will do or be able to do either in December or early next year, as well as whether the Maine Legislature will get to work full time once it is sworn in. First on its plate should be reconciling federal and state taxation of PPP (Paycheck Protection Program) funds that are forgiven, and what additional mandates both systems will impose on small business owners who are at their breaking point.

In my view, the FFCRA was a short-term solution and this virus has become a long-term challenge, but the political gridlock has prevented government from working on the big ideas I think it will take to get us through this. You can’t just keep demanding more from employers. I’m also wondering whether a Biden administration will try to resurrect the Obama-era attempt to raise the minimum salary threshold for white collar workers to be exempt from overtime under federal law.

SJ: What should companies be paying attention to when it comes to issues around leave?

MM: Employers should get organized ASAP so they can get actionable advice for year-end changes that may come. In the area of employment law, head counts are an important gating mechanism for a variety of mandates around leave. So first and foremost, know how many current and part-time employees you have as well as how long they have worked for you, whether they have previously taken any leave, and the basis for that leave. Being able to summarize those data will help your attorney to guide you as to any changes that may come our way next month.

Double-check your hourly rates to make sure you comply with the new Maine minimum wage of $12.15 on 1/1/21, as well as any municipal minimum wage mandates that could apply (e.g. Portland). Make sure your exempt workers meet the new wage threshold of $36,450 per year under Maine law or act accordingly to raise their wages or be prepared to pay overtime if earned.

AD: Companies should make sure they have the correct documentation to establish an employee’s entitlement to leave and ensure that medical information the company receives remains confidential.

SJ: Once a COVID-19 vaccine becomes readily available, do you envision companies wrestling with mandatory vaccine policies? Is it common to have a policy around vaccines now? 

AD: The law is still developing around the COVID-19 vaccine, but I expect the controversy will be fierce around what exceptions there should be to any mandatory vaccination requirement, particularly with respect to religious or philosophical exceptions.

MM: Yes, employers will definitely face hard decisions around vaccines. For certain healthcare professions, mandatory vaccination policies have been around for some time. Those organizations have a simpler calculus. It will also be interesting to see which vaccinations receive approval and availability because depending on how they are prepared, certain exemptions may be available based on religious beliefs and other qualifying bases. We simply just do not know enough about the characteristics of the vaccines at this point to predict how that will shake out. Regardless of circumstances, employers should always engage in an interactive discussion with their workers and take each request one step at a time.

SJ: Two to three policy discussions businesses need to have, at least internally, in the next six months?

MM: In addition to the points Amy raises, managers and owners should think seriously about professional HR staffing. Until now, many of the smallest employers could skate by because they were below headcount thresholds for many leave requirements. I would advise people to abandon that thinking and consider an HR advisor to be an essential team member for every business just like your accountant, banker and yes, your lawyer. Think high-level about how the nature of your work has changed this year and update job descriptions. Don’t just think about the obvious stuff like remote work, but also think about whether PPE (Personal Protective Equipment), lifting and physical distancing requirements require a different skill set or new essential functions.

AD: Many businesses have been operating in survival mode since March, and we are heading into an uncertain winter with COVID-19 cases spiking across Maine and the country. Although the news about COVID-19 vaccines is promising, businesses would be wise to plan for how they can continue operating if a vaccine is not available to everyone for another six to nine months, especially if the federal government does not extend the FFCRA or provide other relief.

With all of the recent school closures, I hope employers are thinking about how to accommodate parents who have to be home with children learning remotely in 2021, even if employers are no longer required to by law. I also think employers should discuss modifying their paid leave policies to reduce the risk that employees come to work sick in 2021 because they cannot afford to stay home without pay. Many Maine families are living paycheck to paycheck, and putting employees in the difficult position of deciding whether to risk infecting their co-workers and the public, or being unable to pay their bills, could lead to disastrous public health outcomes.


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