COVID-19’s Impact on the Workplace

Emergency Paid Sick Leave and
Emergency Family Medical Leave

By: Brian Casaceli

On April 1, 2020, two new federal employment laws took effect: the Emergency Family and Medical Leave Expansion Act (EFMLA) and the Emergency Paid Sick Leave Act (EPSLA or EPSL).   The two laws –  which apply to employers with fewer than 500 employees –  were passed as part of the Families First Coronavirus Response Act and provide eligible employees with EPSL for purposes directly related to COVID-19 and EFMLA if the employee is unable to work or telework due to a need to care for the employee’s child under eighteen (or older than eighteen and is incapable of self-care because of a mental or physical disability) if the child’s school or place of care has been closed, or if the child care provider of the child is unavailable, due to a public health emergency.

Below are several Q/A’s that provide an overview of some notable provisions from the two laws.  

            Are all my employees eligible for EPSL and/or EFMLA?           

            All employees, regardless how long they have been employed by a brewery, are eligible for EPSL.  To be eligible for EFMLA, employees must have been employed with the brewery for at least thirty calendar days.   

What reasons can an employee take EPSL and/or EFMLA for? 

Employees may use EPSL if the employee is unable to work or telework due to a need for leave because: 

(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 a medical diagnosis.

(4) The employee is caring for an individual who is subject to a Federal, State, or local quarantine or isolation order related to COVID-19, or who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.   

(5) The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions.  

(6) 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.

An eligible employee may take EFMLA when the employee is unable to work or telework due to a need to care for the employee’s child who is under eighteen (or older than eighteen and is incapable of self-care because of a mental or physical disability) if the child’s school or place of care has been closed, or if the child care provider of the child is unavailable, due to a public health emergency.

            How much EPSL are employees allowed to take? 

Full-time employees are entitled to up to eighty (80) hours of EPSL. Part-time employees are entitled to EPSL for the number of hours the employee is normally scheduled to work over two workweeks.  Additional considerations come into play when an employee does not work a normal weekly schedule.

            How much EFMLA are employees allowed to take? 

Employees are eligible for up to twelve (12) weeks of EFMLA.  However, the EFMLA does not increase the total amount of FMLA time otherwise available to employees.  For example, if an employee takes six weeks of EFMLA, he/she would only be eligible for six more weeks of FMLA qualifying leave (assuming the brewery is subject to the FMLA).

At what rate is the EPSL paid?

The employee’s EPSL will be paid at the greater of: (i) the employee’s regular rate of pay or (ii) the current minimum wage in the applicable state or locality (currently $12.75 per hour in Massachusetts).  

If an employee uses EPSL for his/her own health (as set forth in 1, 2 & 3 above), the employee is entitled to receive the full amount of his/her regular pay (subject to the maximum amounts referenced below).  If an employee uses EPSL for one of the other reasons (as set forth in paragraphs 4, 5 & 6 above), the employee’s sick leave will be paid at two-thirds the amount the employee would receive if he/she had used EPSL for his/her own health (subject to the maximum amounts referenced below).  

What about EFMLA? 

The first ten working days of EFMLA may be unpaid.  During this time, employees may, but are not required to, use accrued vacation, personal leave, or paid sick leave, including EPSL.  

Following the initial ten-day period, an employee’s EFMLA will be paid in an amount that is at least two-thirds of their regular rate of pay subject to the cap referenced below.  Employees are entitled to receive such paid leave only for the number of hours they are otherwise normally scheduled to work.   

For those employees whose schedule varies weekly, employees are entitled to be paid for the average number of hours that the employee was scheduled each workday (including hours for which the employee took leave of any type) over the 6-month period ending on the date on which the employee takes the leave.

If the employee’s schedule varies and he/she has not worked for at least 6-months, the employee is entitled to be paid for the average number of hours the employee and employer agreed at the time of hire that the employee would work each workday.  If there was no such agreement, the employee is entitled to be paid the average number of hours per workday that the employee was scheduled to work (including hours for which the employee took leave of any type) over their entire period of employment. 

Are there caps on the amount of pay employees are entitled to receive under the EPSLA and/or EFMLA? 

Yes.  If an employee takes EPSL for his/her own health (as set forth in paragraphs 1, 2 & 3 above), the employee is entitled to no more than $511 per day, and $5,110 in the aggregate.  If an employee takes leave for one of the other reasons (as set forth in paragraphs 4, 5 & 6 above), the employee is entitled to no more than $200 per day, and $2,000 in the aggregate.  

If an employee takes EFMLA, the employee’s pay shall not exceed $200 per day and $10,000 in the aggregate (or, if combined with EPSL, $12,000 in the aggregate.) 

Are small businesses exempt from having to provide EFMLA and/or EPSL?

            Breweries with fewer than 50 employees can elect to be exempt from the EFMLA and “Category 5” of EPSL when the imposition of the leave would “jeopardize the viability of the business as a going concern.”

            A brewery may claim an exemption and deny an employee EFMLA and/or Category 5 of EPSL if “an authorized officer” has determined that the employee’s absence would:

1.     Result in the brewery’s expenses and financial obligations exceeding available revenue and cause the brewery to cease operating at a minimal capacity; or

2.     Pose a substantial risk to the financial health or operational capabilities of the business because of their specialized skills, knowledge of the business or responsibilities; or

3.     Prevent the brewery from operating at a minimum capacity because there are not sufficient workers who are able, willing and qualified and who will be available at the time and place needed, to perform the labor or services provided by the employee(s) requesting leave. 

To make this election, the brewery must document that a determination has been made pursuant to the criteria set forth above.  The brewery should retain the records in its files for four years. 

Do I have to post anything in my brewery for my employees to see?

Yes, breweries must post and keep posted this notice.  The notice must be posted in a conspicuous place on the premises of the brewery where notices are customarily posted. In addition to the physical posting, to the extent breweries have employees currently working off-site, breweries should email a copy of the notice to these individuals.  

Please note that although the above Q/A’s address several aspects of the EFMLA and EPSLA, it is not an exhaustive list and, for that reason, breweries are well advised to review the Department of Labor’s FAQs which touch on many common questions employers have.  In addition, I am happy to answer any questions you may have about the EFMLA and/or EPSLA or any other COVID-19 employment related issues.  You can reach me at bcasaceli@mirickoconnell.com or 508-860-1478.  Stay well, everyone.  

An Employment Lawyer’s Tips For Crafting a Job Application (Pun Definitely Intended)

By: Brian Casaceli
Associate at Mirick O’Connell
Labor, Employment and Employee Benefits Group

Job applications can be an area with many traps for the unwary. Recruiting qualified applicants is a necessity for all employers – craft breweries included.  To assist in the hiring process, breweries should prepare job applications that elicit information needed to identify and evaluate qualified applicants.  In crafting a job application, breweries should be aware of state and federal employment laws governing what questions it may and, more importantly, may not, ask.  

What Can, And Should, Be Included In A Job Application 

Equal Employment Opportunity Statement

Every application should inform applicants that the brewery is an equal opportunity employer and will consider all applications for employment without regard to an applicant’s membership in a group or class protected by federal, state, or local law.  

Similarly, to ensure qualified individuals with a disability under state or federal law are afforded an equal employment opportunity to participate in the application process, breweries should  include a statement informing applicants to contact a designated individual at the brewery (i.e., the HR Manager) if they need a reasonable accommodation to complete the application process.   

Work History Questions

            Breweries should ask applicants to list prior employers, the positions and dates held, hours worked per week, and the applicant’s reason for leaving.  Notably, when the application requests a candidate’s previous work experience, it should specifically inform the applicant that he/she may list any verified work performed on a volunteer basis. 

To the extent a brewery intends to conduct reference checks with prior employers the applicant identifies, the brewery should have the applicant specifically authorize his/her present and former employers to disclose to the brewery information regarding the applicant’s prior employment, and release all parties from any liability whatsoever resulting from such disclosure.   

 Education Questions

            Breweries may ask about the applicant’s educational background to the extent it is relevant to the requirements of the position for which the applicant is applying.  Questions about the name of the high school/GED, college/university, trade school, level of education obtained, location, area of study, and degrees earned are all appropriate.  Breweries should not, however, ask for graduation dates as such data could be used as a proxy to determine an applicant’s age and could provide fodder for an age discrimination claim from an applicant not chosen for the job. 

            If a brewery intends to conduct a check with an applicant’s educational institution, the applicant should authorize the institution to provide the brewery with pertinent information relative to the applicant, and release all parties from any liability whatsoever resulting from such disclosure.                  

            Questions Not to Ask on a Job Application or During an Interview

Questions About Personal Characteristics Protected by Law 

            The Federal Equal Employment Opportunity Commission (“EEOC”) recommends employers not ask applicants about personal characteristics protected by law, including race, color, religion, sex, pregnancy, national origin or age.  Brewers should also refrain from asking any similar questions during an interview with the applicant, or at any other point during the hiring process. 

            The EEOC further notes that job applications may not seek information concerning, and interviewers may not ask questions about, an applicant’s disability, questions that are likely to reveal whether an applicant has a disability, or questions that seek an applicant’s genetic information. 

Criminal History Questions

In 2010, Massachusetts enacted “ban the box” legislation that prohibits employers from asking applicants about their criminal history on the initial employment application.  Last summer, Massachusetts Attorney General Maura Healey warned seventeen employers in Massachusetts, and issued fines to four national employers with multiple locations in Massachusetts, for asking criminal history-related questions on initial job applications.  Given the Attorney General’s heightened enforcement of the law, craft breweries are well-advised to remove any criminal history related questions from their initial job applications. 

Massachusetts law does, however, permit an employer, in certain circumstances, to ask applicants about their criminal history after the initial job application, such as during an interview.  Before asking such questions, a brewery should seek advice of legal counsel.          

Salary History Questions 

On July 1, 2018, an amended version of the Massachusetts Equal Pay Act (“MEPA”) went into effect.  Except in limited circumstances, MEPA prohibits employers from asking applicants questions about their salary history at any point in the hiring process. Breweries may not, for example, inquire about the amount of money applicants make at their present job on an initial job application or during a subsequent in-person interview.  (Breweries may inquire about an applicant’s salary history in limited situations: (1) to confirm wage or salary history information voluntarily shared by the prospective employee; or (2) after an offer of employment with compensation has been made to the prospective employee.)   

Guidance from the Attorney General’s office advises employers that they may inquire about an applicant’s salary expectations (e.g. what the applicant is looking to make in the position for which they are applying).  To the extent such an inquiry is made, breweries must be careful not to ask the question in a way that is designed to elicit the employee’s salary history.     

Social Security Numbers

            Generally speaking, although employers are not legally precluded from asking applicants to provide their social security number on a job application, brewers should avoid collecting a social security number until after an offer of employment has been made and the information is needed to conduct a background and/or credit check.     

Lie Detector Tests

            Employers in Massachusetts may not require an applicant to undergo a lie detector test as a condition of employment or continued employment.  In fact, under Massachusetts law, all job applications must include the following statement:

It is unlawful in Massachusetts to require or administer a lie detector test as a condition of employment or continued employment.  An employer who violates this law shall be subject to criminal penalties and civil liability. 

Applicant’s Acknowledgment 

A job application should conclude by having the applicant review and acknowledge the following:

-      All of the information provided in the application is true, accurate and complete to the best of the applicant’s knowledge;

-      Omissions or false statements may result in withdrawal of a job offer or termination of employment if the applicant is hired;  

-      If offered employment at the brewery, the acceptance of such employment will not cause the applicant to violate any other agreement to which he/she is bound (i.e. a non-competition or non-disclosure agreement); 

-      To the extent the applicant is hired for employment, he/she will be an at-will employee and will have no contractual employment rights; and 

-      An offer of employment may be conditioned on the results of pre-employment drug screening, criminal records and/or background check.  

To the extent that a brewery seeks a credit check or an investigative consumer report as part of a background check, the brewery must comply with applicable state law and the Federal Fair Credit Reporting Act which, in part, requires that the applicant be provided a separate disclosure and authorization form. Given the law’s technical requirements, breweries are advised to seek legal counsel when such checks are necessary. 

If a brewery intends to conduct pre-employment drug testing, the job application should explicitly identify this fact.  Giving advance notice to applicants that they may be required to undergo a drug test as part of the application process will create a diminished expectation of privacy, making it harder for an applicant to bring an invasion of privacy claim against a brewery.       

 Until next time, cheers!

Hold My Beer

An Employment Lawyer’s Tips For Craft Brewers
By: Brian Casaceli, Associate at Mirick O’Connell

A few friends and I were recently enjoying a couple ofcold beers at a local brewery – which shall remain nameless to avoid playing favorites!  We discussed how the craft brew movement has been such a positive force not only in Massachusetts, but across the country.  We marveled over the crowds that breweries draw, the diversity and selection of beers (and ciders), and the seemingly endless list of IPAs we need to try. The consensus was that, if we ever found ourselves in a position to be part of such a venture, we would all jump at the opportunity. 

On my drive home that night, the employment lawyer in me took over. Given the significant commitment it takes to establish and operate a brewery, and how quickly breweries can grow, I thought – what employment related issues would a brewery need to address to protect its interests?  Several issues immediately came to mind.     

Protecting the Brewery’s Confidential Information and Trade Secrets Through a Non-Competition Agreement

If not an owner, one of the most essential employees at a brewery is the head brewer or brewmaster – a complex role likely responsible for managing the brewery’s overall operations including hiring and onboarding employees, checking inventory, managing tanks, scheduling, and forecasting production. Given the number of breweries in the Commonwealth, it is easy to foresee a situation where your head brewer/brewmaster might leave your brewery for a competitor.  Such a departure could expose your brewery’s confidential information and trade secrets to a rival brewery.  Fortunately, you may be able to prevent such a scenario from playing out and protect your confidential information and trade secrets by putting a non-competition agreement into place with the head brewer/brewmaster.

As many of you may know, on October 1st, a new law governing the use of non-competition agreements went into effect in Massachusetts.  The law – which sets parameters for how an employer may lawfully enter into a non-competition agreement with certain employees – defines a non-competition agreement as:

[A]n agreement between an employer and an employee, or otherwise arising out of an existing or anticipated employment relationship, under which the employee or expected employee agrees that he or she will not engage in certain specified activities competitive with his or her employer after the employment relationship has ended. 

It is important to note that the law contains many nuances and, for that reason, does not lend itself to a “one-size-fits-all” approach.[1] In fact, given its intricacies, some breweries might opt to forego non-competition agreements altogether and, instead, choose to use other agreements (discussed below) to protect their interests.  Nonetheless, when carefully drafted, non-competition agreements can significantly protect a brewery’s competitive interests.  

Maintaining the Confidentiality of The Perfect IPA Recipe

Perhaps nothing is more sacred to a brewery than its recipes and formulas and the particulars of its brewing process.  To ensure that such information remains private, a brewery should strongly consider having all of its employees who have direct access to such information sign confidentiality agreements.  

Confidentiality agreements, in a nutshell, prohibit an employee from using or disclosing to any individual outside of the company, whether during the course of his/her employment or at any time thereafter, any information the company designates and maintains as confidential, except as necessary to perform his/her job duties.  Thus, in addition to its brewing recipes, a brewery can use a confidentiality agreement to protect a brewery’s trade secrets, other confidential or proprietary information regarding its existing and/or future products, customer lists and/or customer information, business plans, marketing plans and other financial information.  Aside from a confidentiality agreement, breweries should also generally limit access to such information to only those employees who have a business need access to it.        

Protecting Against a Raid of Your Employees and Customers

A brewery can also take steps to prevent departed employees from trying to take the brewery’s remaining employees, and/or its customers through non-solicitation agreements.  Non-solicitation agreements are more narrow than non-competition agreements as they focus on specific activities.    

Employees

If your head brewer or any other employee decides to take a job with another brewery, it is easy to envision how the departing employee might attempt to recruit or solicit other employees to join him/her at the new brewery. To prevent such a situation from happening, breweries should enter into an agreement with their employees that, for a specific amount of time after an employee leaves his/her employment (regardless of the reason), prohibits the employee from recruiting or soliciting for hire any of the brewery’s employees, agents, representatives or consultants.

Customers

A brewery may have an exclusive arrangement with several local restaurants (i.e., customers) that serve its beer/cider on tap.  Breweries should consider a provision that prevents  a sales professional who leaves to join a competitor from using his/her relationship with those restaurants to solicit or do business with them.   

Last Call

Any of the above scenarios can happen in the craft brew industry.  Incorporating the above provisions into your hiring process (or even adopting after the fact) will help protect your business interests, including that secret IPA recipe everyone is trying to get their hands on.  

These are just a few employment-related issues to consider – there are many others out there!  I look forward to regularly submitting articles to the Mass Brewers Guild Newsletter to discuss additional issues as they may relate to craft brewers.  Please feel free to reach out if you have questions on anything mentioned above, or if you want to discuss any other employment related matters.  And, of course, I am always around to grab a beer too!  

[1] Notably, the law prohibits an employer from using non-competition agreements for those employees who are classified as non-exempt under the Fair Labor Standards Act.  Thus, before entering into a non-competition agreement, you must analyze whether the employee, including your head brewer/brewmaster, is lawfully classified as exempt or non-exempt.  It is recommended that brewers contact counsel to assist them with this analysis. 

Brian Casaceli is an employment attorney in the Labor, Employment and Employee Benefits Group at Mirick, O’Connell, DeMallie & Lougee, LLP.  He can be reached at bcasaceli@mirickoconnell.com or (508) 860-1478.