Author: Jennifer Chalal

A small business with under fifty (50) employees may be entitled to an exemption from the requirement under the Family First Coronavirus Response Act (“FFCRA”) that employees with under five hundred (500) employees provide (1) Extended Family Leave to eligible employees or (2) Emergency Paid Sick Leave when the leave is requested by an employee to care for a child due to school or child care closures or childcare unavailability as a result COVID related reasons. There can be NO exemption from providing Emergency Paid Sick Leave if the leave is requested for any of the other 5 delineated reasons that qualify an employee to take paid sick leave under the FFCRA. In other words, the exemption can only be taken with regard to providing: (1) Extended Family Leave due to school or child care closures or childcare unavailability as a result of COVID related reasons or (2) Emergency Paid Sick Leave as result of need to care for child due to school or child care closures or childcare unavailability as a result COVID related reasons.

To qualify for the exemption, an officer of the business must make a determination on a case by case basis to see if there are grounds for the exemption and then document the reason for the exemption if it denies the request on that basis. The Small Business Exemption is not a blanket exemption and each request should be separately evaluated.  An employer is not required to send a letter to the DOL requesting an exemption.

In assessing whether an exemption applies to a particular situation, an authorized officer of the business would need to determine that providing the requested leave to the requesting employee would jeopardize the viability of the business based on one (or more) of the following three reasons:

  1. Providing the requested leave would result in the expenses and financial obligations of the business exceeding available business revenues and cause the small business to cease operating a minimal capacity (i.e.: business can’t afford to pay for the covered leave);


  1. The absence of the employee requesting the leave would entail a substantial risk to the financial health or operational capabilities of the small business because of the employee’s specialized knowledge of the business, skills or responsibilities  (i.e.: the employee requesting leave is one of the only that performs a specialized job function); and/or


  1. 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 requesting the paid leave and these services or labor are needed for the small business to operate at minimal capacity (i.e.: the employer will not be able to operate if the employee is on leave)


The reason for claiming the exemption and not granting the leave should be set forth in writing by an authorized officer of the employer and maintained in the employee’s file for four (4) years.  Likewise, if leave is granted, there should be documentation of the reason for the leave and maintained for (4) years.

If you have any questions regarding the foregoing, please contact Jennifer Chalal at


You know that your business is “life sustaining” – and entitled to remain open despite the “stay at home” order which now restricts business in all of Pennsylvania – because you checked the latest version of the order at (
(The list of such businesses – already updated several times – is online at Pennsylvania’s general guidelines are at

However, the state trooper who sees your employees driving to work probably doesn’t know all those details, and may pull them over.

Although your employees may trust your instruction that they can drive to work safely, can they explain why to a uniformed officer under the pressure of a traffic stop?
So a citation on the way to work may seem inevitable if a trooper sees an employee driving to work – unless, of course, the employee can provide a brief, clear explanation of why the employee can still commute, when most people (including the author of this memo) can’t do so.

On the first day of enforcement of the stay at home order, a client pleaded for help after several of its employees had been detained in a rural county on their way to work.

After investigating the newly adopted rules, however, we recommended that our client’s employees carry a portable, one page explanation of why its employees were allowed to work and commute, complete with citations to the list of permitted businesses.

We also recommend our client’s suggestion, that its commuting employees carry a pay stub or other proof of employment by its essential business.

(However, you should not assume that the rules our client’s employees faced under Pennsylvania’s stringent rules are what your employees may face in your own location.  In addition to checking your local guidelines, the Department of Homeland Security lists “essential critical infrastructure” firms in its Guidance on the “Essential Critical Infrastructure Workforce” at
If your business is eligible to remain open during a stay at home order, we can assist you in preparing a letter which may be helpful in avoiding a citation should your employees be stopped while commuting.

Our employment and business law attorneys listed below can help you navigate these issues.

We hope that you and your business weather the COVID-19 storm.

Please contact Nancy Abrams or Jennifer Chalal for employment matters, or Peter Cripps, Joseph Devine or Stanley Jaskiewicz for business matters:

Nancy Abrams 215-241-8894
Jennifer Chalal 215-241-8817
Peter Cripps 215-241-8884
Joseph Devine 215-825-8942
Stanley Jaskiewicz 215-241-8866



                Last Friday Congress passed a $2 Trillion Economic Stimulus Bill (the “CARES Act”) that provides for loans to small businesses (under 500 employees) as well as payroll tax credits to encourage employers to continue to pay their employees while their businesses are closed down or curtailed due to the coronavirus pandemic. Information regarding small business loans will be included in another Alert. Key employment-related provisions include:

Unemployment Insurance Provisions

This CARES Act creates a temporary Pandemic Unemployment Assistance program through December 31, 2020 to provide payments to workers displaced as a result of the COVID-19 crisis, and includes payments to those not traditionally eligible for unemployment benefits (self-employed, independent contractors, those with limited work history, and others) who are unable to work as a direct result of the coronavirus public health emergency.  The CARES Act also supplements traditional state unemployment insurance and provides an additional $600 per week payment to each recipient of unemployment insurance or Pandemic Unemployment Assistance for up to four months. In addition, the CARES Act provides funding to pay the first week of unemployment benefits, permitting states to pay unemployment compensation benefits to recipients as soon as they become unemployed instead of waiting one week before the individual is eligible to receive benefits.

The CARES Act also provides an additional 13 weeks of unemployment benefits through December 31, 2020 to help those who remain unemployed after the applicable weeks of state unemployment benefits are no longer available (i.e., increasing total weeks of eligibility in Pennsylvania from 26 to 39). Employees whose hours are reduced are eligible for pro-rated unemployment benefits.

Employee Retention Credit For Employers Subject To Closure Due To Covid-19

This provision provides a refundable payroll tax credit for 50 percent of wages paid by employers to employees during the COVID-19 crisis in order to induce employers to retain employees. The credit is available to employers whose (1) operations were fully or partially suspended, due to a COVID-19-related shut-down order, or (2) gross receipts declined by more than 50 percent when compared to the same quarter in the prior year.

The credit is based on qualified wages paid to the employee. For employers with greater than 100 full-time employees, qualified wages are wages paid to employees when they are not providing services due to the COVID-19-related circumstances described above. For eligible employers with 100 or fewer full-time employees, all employee wages qualify for the credit, whether the employer is open for business or subject to a shut-down order. The credit is provided for the first $10,000 of compensation, including health benefits, paid to an eligible employee. The credit is provided for wages paid or incurred from March 13, 2020 through December 31, 2020.

Delay Of Payment Of Employer Payroll Taxes

The CARES Act also allows employers and self-employed individuals to defer payment of the employer share of the Social Security tax they otherwise are responsible for paying to the federal government with respect to their employees. Employers generally are responsible for paying a 6.2 percent Social Security tax on employee wages and must submit those amounts to the IRS quarterly. The provision requires that the deferred employment tax be paid over the following two years, with half of the amount required to be paid by December 31, 2021 and the other half by December 31, 2022. The Social Security Trust Funds will be held harmless under this provision.

Direct Payments To Individual Taxpayers

Under the CARES Act, the Secretary of the Treasury has been directed to provide rebate checks to individual taxpayers in order to stimulate the economy.  Individual taxpayers with an adjusted gross income of $75,000 or less will receive a $1,200 rebate check, and an additional rebate of $500 per dependent child.  Taxpayers filing jointly will receive $2,400 in addition to the $500 per child.  The rebates will be proportionally phased out for individual taxpayers with adjusted gross income of $75,000 to $99,000 and for joint filers with adjusted gross income of $150,000 to $198,000.  The phase out reduces a taxpayer’s rebate by $5 for each $100 of adjusted gross income in excess of the applicable phase-out thresholds (i.e. $75,000 or $150,000, as the case may be).

We will continue to provide updates to our clients regarding important COVID-19 legislation that affects employers and employees.  If you have any questions regarding the foregoing, please contact Jennifer Chalal at or Nancy Abrams at or Peter Cripps at



The Families First Coronavirus Response Act requires that employers inform their employees of their rights under the Act. They have issued an approved poster that must be displayed where the employer displays other employee rights-related posters. If employees are not working in the employer’s place of business, a copy of the poster should be sent to employees by e-mail or regular mail.

We will continue to provide updates to our clients regarding important COVID-19 legislation that affects employers and employees. If you have any questions regarding the foregoing, please contact Jennifer Chalal at or Nancy Abrams at

Click  here to view the Families First Coronavirus Response ActPoster



            The rampant spread of the Coronavirus Disease-2019 (COVID-19) throughout the United States has affected almost every employer and raises a host of workplace issues especially for those non-essential businesses that have been required to cease or curtail operations.  Recently, a number of actions have been taken by Congress, State and local agencies and the EEOC in response to this national crisis.  The following is intended to highlight some of these actions and address pressing employment issues.

  1. The Families First Coronavirus Response Act Update

President Trump signed The Families First Coronavirus Response Act (FFCRA) into law on March 18, 2020. The FFCRA builds on an Emergency Coronavirus Spending Package enacted on March 6, 2020 and a subsequent Bill passed by the House on March 13, 2020 that will provide free coronavirus testing, paid leave, enhanced unemployment insurance benefits for people affected by COVID-19, additional funding for nutritional programs and Medicaid, and protections for health care workers and employees responsible for cleaning at-risk places.  Of particular importance to employers and employees, the FFCRA provides employees with paid sick leave through the newly enacted Emergency Sick Paid Leave Act and the expansion of the Family and Medical Leave Act.

The Emergency Sick Paid Leave Act

The Emergency Sick Paid Leave Act requires private employers with under 500 employees and all public employers to provide mandatory paid-sick-leave benefits to employees who are unable to work or telework for the following reasons:

  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 quarantine or isolation order or has been advised to self-quarantine or is experiencing symptoms of the COVID-19 virus and is seeking a medical diagnosis;
  5. The employee is caring for a son or daughter 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; or
  6. Experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

Full-time employees must be provided with up to 80 hours of paid sick leave. Part-time employees must be provided with sick leave equal to the number of hours the employee normally works in a two-week period. Paid sick leave benefits must be immediately available when the law takes effect regardless of how long an employee has worked for the employer.  If the qualifying reason is for the employee’s own care (reasons 1-3 above), paid sick leave must be paid at the employee’s regular rate of pay or minimum wage, whichever is greater.  Payment for self-care is capped at $511 a day or $5,110.00 in the aggregate.  If the qualifying reason is for the care of a family member (reasons 4-6 above), the paid leave may be compensated at two-thirds their regular rate of pay, or minimum wage, whichever is greater.  Payment to care for others is capped at $200 a day or $2,000.00 in the aggregate.

Paid sick leave under the Act ends when the employee returns to work, if that occurs before the two-week period. Employers may not require that employees use other paid time off before using paid sick leave under this Act. This benefit is available fifteen days after enactment on April 2, 2020 and will expire at the end of 2020.

Under the Act, employers cannot:

  1. Require an employee to use other paid leave before using the paid sick time provided under the Act.
  1. Require an employee to find a replacement to cover his or her scheduled work hours.
  2. Retaliate against any employee who takes leave in accordance with the act.
  3. Retaliate against an employee who files a complaint or participates in a proceeding related to the act—including a proceeding that seeks to enforce the act.

The Emergency Family & Medical Leave Expansion Act

The Emergency Family & Medical Leave Expansion Act expands the Family Medical Leave Act for purposes of the COVID-19 pandemic and requires all private employers with under 500 employees and all public employers to provide a twelve (12) week job protected leave to those eligible employees who are unable to work due to a need for leave to care for their child because the school or day care has been closed or the child care provider is unavailable due to a public health emergency. A “public health emergency” under the Act is defined as an emergency with respect to COVID-19 as declared by a federal, state, or local authority.  Unlike the FMLA which requires an employee to be employed for one year, the Emergency Family & Medical Leave Expansion Act only requires that the employee be employed for thirty (30) days to be eligible.

The first ten (10) days of emergency leave may be unpaid. An employee may elect to use any accrued paid time off (vacation or sick pay) during this time, but employers may not mandate that they use accrued paid time off. After the initial ten (10) day period, employees must be paid at least two-thirds (2/3) of their regular salary, up to a cap of $200 per day and $10,000 in total per employee. An employee taking extended FMLA must be restored to his or her job except that employers of fewer than 25 employees may be excused from reinstating an extended FMLA user if the employee’s position no longer exists due to economic conditions or other changes in operations caused by the public health emergency.  This Act becomes effective fifteen (15 days) after its enactment on April 2, 2020 and will expire at the end of 2020.

Under both the Emergency Paid Sick Leave Act and the Emergency Family Medical Leave Expansion Act, small businesses with fewer than 50 employees may be eligible for an exemption if compliance with the requirements would jeopardize the viability of the business as a going concern.  It will also be permissible to exclude certain health care providers or emergency responders from the definition of eligible employees.

Notice Requirements

Covered employers are required to post in conspicuous places on the workplace premises a notice to be prepared by the Secretary of Labor advising employees of their rights under the Act.


Employers who fail to provide the paid leave under either of these Sections will be considered to have failed to pay their employees the federally mandated “minimum wage” and will be in violation of the Fair Labor Standards Act, which provides for liquidated damages equal to the amount of unpaid wages as well as attorneys’ fees and costs.

Tax Credits

Covered employers that are required to offer Emergency Family Medical Leave or Emergency Paid Sick Leave will be eligible for tax credits.  Additionally, employees will not have payroll taxes withheld from Emergency Sick Leave

In addition to the above, many states have enacted similar laws which may provide additional protection.  For instance, New York has enacted it own emergency paid sick leave law.  While the benefits provided for quarantine leave under the New York COVID-19 Paid Sick Leave Law depend on the size of the employer, it applies to all employers even those with more than 500 employees in New York.  Employers should monitor all state and local regulations where they do business.

  1. Unemployment Compensation

In response to the COVID-19 crisis which has resulted in mandatory stay at home orders and forced business closures, the Department of Labor is permitting every state the ability to relax or waive certain unemployment requirements such as waiting periods or actively seeking work.  In Pennsylvania, employees who are unemployed because their employers have shut down operations because of the COVID-19 emergency are eligible for unemployment compensation benefits, if they are not receiving paid time off for the time they miss. The PA DOL has also suspended the usual one week “waiting week” for benefits for this purpose only. They have also announced that the experience rating for any employer whose employees collect benefits for this reason will not be affected by those claims.

Other states have reacted similarly.  New York has waived its waiting period.  New Jersey is attempting to pass a temporary unemployment program to provide full pay for employees that are out of work because of COVID-19 or have to care for a child whose school is closed due to COVD-19.  Michigan has extended the time an individual can receive benefits and has not required employees to actively seek work if they are quarantined or caring for somebody that is quarantined or caring for a child whose school is closed due to the COVID-19 crisis.  Florida has also waived its requirement that employees actively seek work if out for these reasons.

  1. Layoffs

Many employers are being forced to layoff their workforce due to economic hardships caused by the COVID-19 pandemic including those resulting from forced business closures and stay at home orders.  Certain layoffs implicate The Worker Adjustment and Retraining Notification Act of 1988 (the “WARN Act”) which is a federal law that requires most employers with 100 or more employees to provide sixty (60) calendar-day advance notification of plant closings and mass layoffs of employees affecting fifty (50) or more employees at a single site of employment.  In determining whether a company has 100 employees, employees that have worked less than six months in the last 12 months and those who work an average of less than 20 hours a week are generally not considered. There are certain exceptions to the requirements when layoffs occur due to unforeseeable business circumstances, faltering companies, and natural disasters.  While COVID-19 is not presently considered a natural disaster, it most likely would qualify as an unforeseeable business circumstance.  Additionally, under the Act, a temporary layoff of less than six months does not constitute an employment loss triggering notice.

Employers should be mindful that many states have enacted their own “Mini-Warn” laws which may expand or reduce the requirements under the Federal Act.  For instance, California does not permit an unforeseeable business exception nor does it provide an exception for temporary layoffs.  New Jersey has amended its Act effective July 2020 and will require mandatory severance when there are plant closings or mass layoffs as defined under the New Jersey Act.  In New York, a mass layoff is defined as the layoff of 25 or more employees if it constitutes 33% of the workforce or the layoff of 250 full time employees and a plant closing is the cessation of business at one operating site that results in the loss of employment of at least 25 employees.  States such as Pennsylvania, Florida, Colorado and Massachusetts have the same requirements as the Federal Act.  Employers are urged to consult the state laws where they operate to ensure compliance

  1. Salary Reductions

Employers are permitted to reduce salaries as an alternative to layoffs or furloughs.

However, employees have to earn at least minimum wage.  Additionally, if employers are reducing the salaries of exempt employees, the employer will lose the exemption under the Fair Labor Standards Act if the reduced amount results in the employee earning below $684.00.  Employers could also lose the exemption under state wage laws if the reduction results in the employee earning less than the weekly earning amount required by state law to qualify for an exemption.

Notice should be given to employees before a salary reduction takes place.  While most states do not specify whether the notice needs to be in writing, best practices suggest that written notice is preferable to oral notice.  Additionally, certain states have implemented requirements regarding the amount of notice required.  For instance, North Carolina requires twenty-four hours notice and South Carolina requires seven days notice.  Pennsylvania, New Jersey, Illinois, Colorado, Georgia, Minnesota, Florida and Illinois have no specific requirements..

  1. EEOC Issues


  1. Discrimination Issues

The issues surrounding COVID increase the potential for discrimination claims based on characteristic such as national origin, age and disability.  Accordingly, employers must be mindful of the anti-discrimination laws in taking measures to respond to the COVID-19 crisis.  In implementing layoffs and salary reductions, employers should be careful that decisions are made for legitimate and non-discriminatory reasons.  For instance, while China is the origin of the virus, employers should not treat employees of Asian descent differently or assume that they have COVID-19.  Likewise, employers should not assume people over a certain age or those with known medical conditions have COVID-19.   In addition, employers should also remember that COVID-19 may or may not qualify as a disability under the ADAAA and should explore those issues when it appears an employee may need an accommodation.

  1. Taking Employee Temperatures

The EEOC has relaxed the prohibition on employers taking employees’ temperatures during the COVID-19 emergency. Usually, taking an employee’s temperature is considered to be “medical testing” which is prohibited under the Americans with Disabilities Act. For the duration of the COVID-19 emergency, employers may take their employees’ temperature and may send any employee with a fever home. Employers should discontinue this practice when the COVID-19 emergency ends.

We will continue to provide updates to our clients regarding important COVID-19 legislation that affects employers and employees.  If you have any questions regarding the foregoing, please contact Jennifer Chalal at or Nancy Abrams at



New Jersey is one of only six states that offer certain employees paid family leave which is funded through payroll deductions.  On February 19, 2019, New Jersey Governor Phil Murphy signed legislation that expands the benefits under the Paid Family Leave Law and Temporary Disability program in New Jersey.

First, as of June 30, 2019, the amended law expands the scope of employees eligible for family leave insurance to include employees who work for employers with 30 or more employees.  Prior to the new legislation, coverage was limited to employees of employers with 50 or more workers.

Second, the law expands the permissible reasons that an employee will be entitled to paid family leave insurance.  Under the new law, the definition of “family member” has been expanded to include grandparents, grandchildren, siblings, adult children, in-laws, domestic partners, and individuals having a close relationship with the employee that is the equivalent of a family relationship.  The amended law also permits coverage to bond with a child resulting from foster care placement, surrogacy, or through a gestational carrier agreement.  In addition, coverage is also provided to victims of domestic and sexual violence and to those caring for family members who are dealing with issues related to domestic or sexual assault.

Third, paid family leave has been increased from 6 weeks to 12 weeks beginning on July 1, 2020.  Intermittent leave will also increase from 42 to 56 days.

Fourth, the requisite waiting period before entitlement to family leave insurance payments begins has been eliminated.  Starting July 1, 2020, benefits will be payable to the employee on the first day of leave.  While employees may have the option to use either paid time off before using family leave benefits, employers can no longer require that employees use all of their paid leave before the payment of benefits.

Fifth, effective July 1, 2020, the weekly benefit to employees has been increased to 85% of an individual’s weekly wage, capped at 70% of the state’s average weekly wage so that eligible employees can receive up to a maximum payout of $860 per week.  Prior to this increase, employees were only entitled to receive two-thirds of their pay up to a maximum of $650 per week. This expanded benefit also increases the amount that all eligible employees will have to pay to fund the program.

Sixth and last, effective June 30, 2019, the amended law prohibits employers from retaliating against employees who request and/or take paid family leave.  The law also prohibits employers from refusing to restore the employee to his or her job on the basis that the employees requested or took family leave benefits.  Employers who fail to provide notifications and disclosures will be subject to fines up to $1000 may be imprisoned for up to 90 days.  Employers who violate the anti-retaliation provisions will be subject to fines up to $2000 for first-time violations and thereafter $5000 for each violation.  The anti-retaliation provision and fines also imply to employees eligible for paid temporary disability leave.

Companies that employ between 30 and 50 employees should prepare to implement these changes.  If you require assistance regarding compliance with the New Jersey Paid Family Leave Insurance Law or have any questions regarding these changes, please contact Jennifer Myers Chalal at or (215) 241-8817.


President Obama signed into law the Defend Trade Secrets Act of 2016 (“DTSA”) last week which provides a federal cause of action for misappropriation of trade secrets. Prior to its enactment, trade secret misappropriation claims were generally governed by state laws. Companies who are victims of misappropriation will now have the opportunity to litigate trade secret misappropriation claims in federal court. Notably, the DTSA does not preempt the state laws governing misappropriation so trade secret litigation can still be pursued in state court.

The substantive rights under the DTSA are largely the same as those rights provided under the Uniform Trade Secrets Act (“UTSA”) which has been adopted by most states. However, unlike the UTSA, the DTSA permits ex parte seizure of the misappropriated material under extraordinary circumstances. The DTSA also forecloses the possibility of obtaining injunctions based upon the “inevitable disclosure doctrine”. In other words, there must be evidence of a threatened misappropriation to obtain injunctive relief and injunctions cannot be based on simply on the fact that the information is known to the former employee.

Most significantly, the DTSA permits whistleblowers and individuals bringing retaliation claims to disclose trade secrets to their counsel and law enforcement officials for purposes of reporting violations of law without civil or criminal liability. The DTSA also permits the disclosure of trade secret information in court documents filed by a whistleblower or retaliation claimant as long as the documents are filed under seal. Employers are required to provide written notice of this available immunity under the DTSA in any non-disclosure agreements, confidentiality agreements and/or any other policies or manuals that govern disclosure of trade secret information. Employers who do not provide this notice will be foreclosed from recovering exemplary damages and attorney’s fees available under the DTSA. Accordingly, employers seeking to take advantage of recovering exemplary damages and fees should update their agreements and policies used with employees and contractors.

If you require assistance updating policies and agreements regarding confidentiality and non-disclosure of trade secrets or have any questions regarding the DTSA, please contact Jennifer Myers Chalal at or (215) 241-8817.