Michael Fee was quoted in a Lawyers Weekly article entitled Abutters can’t block private school construction dated April 14, 2021. The article discusses a recent Appeals Court decision finding that a 50-foot wide easement that connects a cul-de-sac to a site the owners planned to develop for a private school would not be overburdened by the proposed project.

By: Scott M. Zanolli, Esq.

With COVID-19 infections rates decreasing and the number of vaccinations increasing, many employers are beginning to recall employees back to office spaces or putting plans in place to do so. This will leave many employers wondering: what can be done if employees refuse to return to the office out of fear of the virus? Can they be disciplined? Terminated?

Understandably, some employees may be genuinely concerned about contracting COVID-19 and may express apprehension about physically returning to the workplace. However, fear of the virus alone is not likely to be a legally viable reason for refusing to return to work, and could leave employees open to discipline or termination.

Employers should not proceed without caution when determining whether to take action against employees refusing to return to work and should consider all of the reasons an employee may make such a refusal. For example, does the employee have a medical condition which leaves them especially susceptible to contracting COVID-19 or developing severe illness if they were to contract the virus?

In that instance, employers may be obligated to provide some measure of accommodation to avoid violating an employee’s rights under the Americans with Disabilities Act (ADA) or Massachusetts’s laws prohibiting disability discrimination in the workplace. Employers may subject themselves to liability, including multiple damages, punitive damages, and attorneys’ fees, if they improperly refuse an employee’s legitimate request for accommodation for their disability. Terminating an employee after denying such a request may also open an employer up to a retaliation claim.

Employers should also consider whether an employee’s unease with a return to work is caused by concern over the policies, procedures, and practices implemented by the employer to mitigate risk for spread of the virus in the workplace. If this is the case, and an employee has notified an employer of these concerns, any adverse action against the employee could again subject an employer to a retaliation claim.

Employers should have policies in place to address employee concerns about workplace safety, and also strategies to deal with difficult employee situations as they arise. Experienced legal advice is essential in guiding employers through the ever evolving regulatory landscape.

Pierce & Mandell’s experienced employment attorneys can answer questions regarding business operations, and advise employers regarding their rights and obligations with respect to their workforce.

Please contact Scott M. Zanolli at 617-720-2444 or at scott@piercemandell.com.

Pierce & Mandell, P.C. is pleased to announce that Curtis B. Dooling has been elected a Shareholder of the firm, effective January 1, 2021, Hannah Schindler Spinelli has been promoted to Counsel and Julie Niejadlik has been hired as an Associate.

Curt focuses his litigation practice on complex commercial and business litigation, zoning and land use disputes, health care and tort law. Curt has significant experience representing medical professionals in disciplinary and administrative hearings and he advises clients in the health care industry, including medical centers, group practices, and individual physicians and dentists.

Hannah is a senior attorney in Pierce & Mandell’s health, business and real estate law practice areas and she represents medical and dental practices, and other clients, in transactional matters.

Julie, a recent graduate of Northeastern University School of Law, will work as an associate in Pierce & Mandell’s health and business law practice areas.

We look forward to continuing to grow our expertise with these well-deserved promotions and by expanding our outstanding team of attorneys. Please join us in congratulating Curt, Hannah and Julie.

For our staff, lawyers, clients and friends, the holiday season is made all the more joyous by the annual Pierce & Mandell celebration at the House of Blues. Unfortunately, we were unable to host that gathering in this year of pandemic, but we are happy that we are still able to continue our annual tradition of supporting worthy charitable organizations. This year Pierce & Mandell has increased its donations in this time of need to the following organizations:

• The Boston Marathon Jimmy Fund Walk
• The Juvenile Diabetes Foundation
• The Schwartz Center
• The Ellie Fund
• The Dana Hall School
• Health Law Advocates
• The Brain and Behavioral Research Foundation
• Bridgewell
• Buddy Dog Humane Society, Inc.
• The Children’s Law Center of Massachusetts
• The Payomet Performing Arts Center
• Ron Burton Training Village
• Natural Resources Trust of Easton
• The Spaulding Rehabilitation Center
• The Juvenile Diabetes Society
• The Jewish Collaborative
• The Leukemia and Lymphoma Society
• WOMR
• The Eddie & Alyce Mandell Memorial Scholarship Fund

We thank all who contributed to our success in these most turbulent times and look forward to hopefully seeing all of our clients and friends in 2021, as soon as safety allows.

Pierce & Mandell, P.C. is proud to announce that partners Bob Pierce, Bill Mandell, Michael Fee, Tom Kenney, Bob Kirby, and Dennis Lindgren have been selected as 2020 Massachusetts Super Lawyers. Associates Hannah Schindler Spinelli, Mollie Sullivan, and Scott Zanolli have been designated 2020 Massachusetts Rising Stars.

Bob Pierce was recognized as a Super Lawyer in the practice of Civil Litigation Defense; Bill Mandell in Health Care; Dennis Lindgren in Plaintiff’s Personal Injury; and Michael Fee, Bob Kirby and Tom Kenney in Business Litigation. Hannah Schindler Spinelli was recognized as a Rising Star in the practice of Health Care, Mollie Sullivan in Civil Litigation Defense, and Scott Zanolli in Business Litigation.

Super Lawyers is a rating service of outstanding lawyers from more than 60 practice areas who have attained peer recognition and professional achievement. Candidates are evaluated utilizing a patented process which includes twelve indicators of peer recognition and professional achievement. Rising Stars are selected through the same process but are attorneys under the age of 40, or who have been in practice for less than 10 years. No more than 5 percent of eligible lawyers in Massachusetts are named as Super Lawyers, and 2.5 percent are named to the Rising Stars list each year.

Michael C. Fee was recently quoted in the August 31, 2020 edition of Massachusetts Lawyers Weekly. The article, entitled: “State’s Eviction Ban Does Not Preclude Attachment of Assets”, explores recent court decisions regarding how commercial landlords and tenants are navigating the Covid-19 environment.

You can reach Michael C. Fee at mfee@piercemandell.com

On April 27th, in response to the COVID-19 public health crisis, Governor Baker signed into law Section 71 of the Acts of 2020 entitled “An Act for Providing Virtual Notarization to Address Challenges related to COVID-19” (the “Act”). The Act allows notary publics to perform remote ink notarizations via video conferencing (such as Zoom or FaceTime) pursuant to certain requirements. The statute is temporary, and will be automatically repealed three (3) days after the Massachusetts state of emergency has been lifted.

Below is a summary of the Act, including the requirements imposed on the notary public and document signer pursuant to the Act.

Under the Act, remote ink notarization may be conducted via electronic video conferencing if:

• The video conference allows the document signer and notary to communicate in real time and the notary observes the signer’s execution of the documents during the video conference.
• The signer and the notary are both physically located in the Commonwealth.
  • The signer must swear or affirm under the penalties of perjury that the principal is physically located within the Commonwealth.
• The signer must disclose any person present in the room and that person or persons must be made viewable to the notary.
• Unless personally known to the notary, the signer must provide the notary with satisfactory evidence of identity in the form of a government-issued photo ID.
  • The notary must receive the ID in either hardcopy or electronic format and it must be retained by the notary for ten (10) years.
  • The signer must send a copy of the front and back of a government-issued ID or a copy of the front cover and page featuring the signer’s photograph, name and signature of a passport.
• The signer must execute the documents using wet-ink signatures and make their acknowledgment, affirmation or other notarial act to the notary during the video conference.
  • The notary must create an audio and video recording of the notarial act, which must be retained by the notary for ten (10) years.
• The signer must return the original signed documents to the notary via delivery service, courier, or other means in accordance with the notary public’s instructions.
• Upon receipt of the original signed documents, the notary affixes his/her signature and stamp and/or seal.
  • The notarial certificate attached must include a statement indicating that the document was notarized remotely pursuant to the Act, noting the county in which the notary was located and including the date on which the notarial act was completed.
• The notary must complete an affidavit, which states that the notary has:
  • Received a copy of the signer’s ID, if applicable;
  • Obtained the signer’s verbal assent to record the video conference;
  • Taken the signer’s attestation as to the signer’s presence in Massachusetts; and
  • Been informed and noted on the affidavit any person present in the room with the signer during the video conference, including the relationship of any such person to the signer.
• The notary must retain the affidavit for ten (10) years following the execution of the documents.

Please note that for any document submitted for recording in land records, the notary is not required to include a copy of the affidavit.

Real Estate Documents: Under the Act, for any documents requiring notarization in the course of closing a transaction involving a mortgage or other conveyance of title to real estate, the notary must:

• Be a Massachusetts-licensed attorney, or a paralegal under the direct supervision of a Massachusetts-licensed attorney.
• Review a second form of identification, unless the signer is personally known to the notary.
  • This second form of identification must include the signer’s name and can be a credit or debit card, social security card, or municipal tax or utility bill dated within 60 dates of the first video conference, or other similar documents.
• Conduct a second video conference upon receipt of the original documents, during which the signer verifies to the notary public that the document received is the same document executed during the first video conference.
  • Following the verification, the notary will affix their signature and stamp and/or seal to the documents. If the document concerns a mortgage financing transaction, the notarial certificate may recite the date stated within the body of the document, even if that date precedes the date of completion.
• Retain copies of the signer’s identification along with the video recording and affidavit for a period of ten (10) years.

In the event that the signer does not have the ability to print documents, the notary should mail a copy to her for execution. All documents executed and notarized under the Act must be signed in wet ink and wet notarized.

Additionally, Congress is currently considering a federal remote notarization act, which would allow notaries in every state to conduct a remote online notarization and would preempt the Act. This would allow notaries located anywhere in the country to conduct remote online notarizations related to Massachusetts.

Though the Act allows for remote ink notarizations, lenders may have their own specific requirements regarding remote execution of documents. When executing lending documents, it is best practice to ensure that the process you are using does not violate the particular lender’s closing instructions.

If you have any questions regarding the Act, COVID-19, or any other legal issue, please contact a Pierce & Mandell attorney.

By William M. Mandell, Robert R. Pierce, Michael C. Fee, Hannah Schindler-Spinelli, and Scott M. Zanolli

Many small businesses are being significantly impacted by the economic situation created by the COVID-19 virus, and there are an increasing number of instances in which employers may have to temporarily or permanently reduce their workforces.  As a result, lawmakers at both the state and federal level have acted to pass legislation and allocate funds for to help support businesses and protect workers. 

Below is a summary of some of the legal developments of which both employers and employees should be aware.

The Families First Coronavirus Response Act (“FFCRA”)

This will apply to employers with less than 500 employees from April 1, 2020 through December 31, 2020.  Employers with less than 50 employees may qualify for an exemption from the requirement to provide leave due to school closings or childcare if the requirement would jeopardize the viability of the business as a going concern.

Under the Act, employers must provide all employees with:

• Emergency Paid Sick Leave equivalent to two weeks, up to 80 hours, of leave at the employee’s regular rate of pay where the employee is unable to work or telework because the employee is quarantined, pursuant to a federal, state, or local government order or advice of a health care provider, and/or experiencing COVID-19 symptoms and seeking a medical diagnosis. This pay should be made at the employee’s regular rate of pay up to $511 per day, or a maximum total benefit of $5,100. This paid leave must made immediately available to all employees. 

• Emergency Family and Medical Leave for all employees that have been employed for at least thirty (30) days for up to twelve weeks leave if the employee is unable to work because of a bona fide need to care for an individual subject to quarantine, pursuant to federal, state, or local government order or advice of a health care provider, or care for a child under 18 years old whose school or child care provider is closed or unavailable for reasons related to COVID-19. The first ten (10) days may be unpaid, and the remaining ten (10) weeks must be paid at two-thirds the employee’s regular rate of pay up to $200 per day, or a maximum total benefit of $2,000 for two weeks, or $12,000 for twelve weeks. Employees may substitute accrued vacation leave, personal leave, or medical or sick leave for the first ten (10) days of unpaid leave.  

Emergency leave under this provision also provides for job protection.  This requires an employer to restore an employee to the same or equivalent position when they are able to return to work.  Employers with fewer than twenty-five (25) employees are exempt from this requirement, if the employee’s position no longer exists after the leave period due to business changes caused by the COVID-19 public health emergency.  If the employer does not return the employee due to business changes, the employer must make reasonable efforts to contact the displaced employee concerning any equivalent positions which come available for up to one year after the displacement.

Employers that pay employees under this Act are eligible for dollar-for-dollar reimbursement through payroll tax credits for all qualifying wages, including amounts paid or incurred to maintain health insurance coverage. 

Employers with less than 50 employees or “health care” employers, a term which excludes dental practices, can file for an exemption from the requirements of the FFCRA.  For businesses under 50 employees, it appears the exemption will be allowed only if the requirements would "jeopardize the viability of the business as a going concern."  The Department of Labor (“DOL”) has issued guidance indicating that a small business may claim this exemption if an authorized officer of the business has determined that:

1. The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;  

1. The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; 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 or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.

This exemption is only available from the provisions of the FFCRA concerning expanded Family Leave which covers leave requests due to school closures and childcare unavailability.  Small businesses are not exempt from providing leave for any of the other types of permissible requests under the FFCRA.  In other words, if an employee has been advised by a health care provider to self-quarantine related to COVID-19, or if an employee requests leave to care for an individual who is self-quarantining, the small business must still provide paid leave and no exemption will be granted.

Unemployment Insurance

The FFCRA includes a provision entitled the Emergency Unemployment Insurance Stabilization and Access Act of 2020 which provides $1 billion in emergency relief to the states for unemployment insurance programs.  Here in Massachusetts, the legislature passed an emergency act Authorizing Waiver of the One Week Waiting Period for Unemployment Benefits. 

Individuals that have found themselves out of work, or having had their work hours and/or pay substantially reduced, may immediately apply for unemployment insurance without the need to wait for any period.  This includes employees who have seen their workplace shut down due to a lack of work for a temporary period of time, and employees relegated to home due to a risk of infection or subject to quarantine by a health care provider or governmental authority and not allowed to return to work. An employee will not be required to provide a note from a health care provider and only need to be available for work when and as able.

Many employers have found themselves in the unenviable position of having to decide whether to make permanent or temporary layoffs or furlough employees due to the COVID-19 public health emergency. Employers may send their employees home due to lack of work because of COVID-19 with the intention to bring them back, and the employees will become immediately eligible for unemployment benefits. This “stand-by” status is granted automatically for the first 4 weeks, and then an employer may request that such temporary status be extended to 8 weeks.  Employees must remain in reasonable contact with their employer, and be prepared to go back to work when the employer has hours and they are able to do so. 

Employers that do send employees home due to a lack of work, whether a permanent or temporary layoff or furlough, must notify employees of their right to file for unemployment insurance and provide them with information on to how to file, such as a link to the Massachusetts Department of Unemployment Assistance website.

The federal government recently passed the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”).  The CARES Act dramatically expands the eligibility for UI in terms of the amount of benefits available, the types of claimants that qualify, and the duration of the benefits.  The Massachusetts Department of Unemployment Assistance (“DUA”) recently received some guidance from the federal government on portions of the CARES Act and is acting quickly to add an additional $600 to the weekly benefits received by current unemployment claimants, retroactive to March 29, 2020.  The DUA in the process of building a platform through which to disburse Pandemic Unemployment Assistance under the CARES Act.  This will make UI benefits available to individuals who are self-employed, have exhausted their unemployment benefits, or are otherwise not covered under the general unemployment regulations.  The platform is expected to begin accepting claims around April 30, and eligible individuals will be retroactively compensated to February 2, 2020 or the first week in which they were unable to work due to the public health crisis.  You should check the DUA website for updates on the availability of the application for this program.             

Notwithstanding these developments, employers must carefully comply with federal and state wage and hour laws when sending employees home due to lack of work, operational changes, or going out of business due to the COVID-19 public health emergency. This includes paying employees for all earned wages, including accrued but unpaid vacation time, paid leave, or any other wages due under an employment agreement.  It is important to note that nothing in the FFCRA or CARES Act modifies an employer’s obligations under the Massachusetts Wage Act.  Thus, if an employer fails to pay its employees in a timely manner as required by the Wage Act, the employer is subject to liability for treble damages and attorneys’ fees. 

The legal landscape in employment law is rapidly changing.  Small businesses and workers should review Pierce & Mandell’s Employers’ COVID-19 Frequently Asked Questions blog and contact our experienced employment attorneys with any specific questions. 

By William M. Mandell, Robert R. Pierce, Michael C. Fee, Hannah Schindler-Spinelli, and Scott M. Zanolli

Medical, dental and other professional practices, like many US small business that rely on in-person encounters, have been dramatically impacted by the COVID-19 pandemic.

Federal and state public health and public emergency directives and orders have forced them to close since mid-March, 2020 for all but essential emergency visits.  

While Medicare and many state commercial insurers have been subject to emergency orders requiring payment for telehealth remote visits, such visits are not an option for dental and other licensed health professions that require hands on treatment, and will not make up for the substantial loss of income for closed medical and behavioral health practices.

Practice owners are now left with unprecedented and previously unimaginable questions and challenges. How do I preserve and provide for our staff when we are completely or substantially closed for clinical operations?  What if the necessary period of closure to bend the apex of the pandemic goes on for months?  How can I cover my overhead if revenues are dwindling and already not enough to cover my overhead? What if I cannot pay my rent or mortgage? Will I be able to survive this crisis?  

Permitted Operations

Under guidance from the Massachusetts Dental Society (“MDS”) and Center for Disease Control (“CDC”), and the Governor’s Order Assuring Continued Operation of Essential Services in the Commonwealth, Closing Certain Workplaces, and Prohibiting Gatherings of More than 10 People (the “Governor’s Order”), dental offices should be closed to any patients seeking elective and non-urgent care, and can only remain open to see patients for emergency treatments; all other appointments must be rescheduled.  

Revenue

All practices should ensure that they have a line of credit available from their banking institution.  The Commonwealth is also working on developing small business assistance funds through both the Massachusetts Emergency Management Agency (“MEMA”) and the Massachusetts Growth Capital Corporation (“MGCC”). 

Federal legislation titled the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”) also provides potential working capital for businesses looking for alternatives to workforce reduction.  Some of the highly publicized relief options are the Emergency Economic Injury Grants (“EEIG”) and Economic Injury and Disaster Loans (“EIDL”), and the Paycheck Protection Program (“PPP”). 

EEIG’s provide an emergency advance of up to $10,000 to small businesses impacted by the public health emergency within three days of applying.  The $10,000 advance does not have to be repaid for any reason, and can be used for payroll, sick leave, rent or mortgage payments. 

EIDL’s are lower interest loans of up to $2 million that have principal and interest deferral options, which may be used to pay for expenses that could have been met had the pandemic not occurred.  Employers are eligible for EIDL’s if they have 500 or fewer employees and are sole proprietors, with or without employees, independent contractors, cooperatives, employee owned businesses, or tribal small businesses. 

The PPP loan provides federally guaranteed loans to employers for the purpose of maintaining their workforce during the public health emergency.  The program will allow businesses to borrow money for a variety of costs related to employee compensation and benefits, including payroll costs, continuation of health care benefits, employee wages up to $100,000, mortgage interest, and rent and utilities for the eight week period after the loan commences.  Businesses under 500 employees can apply for these loans through any SBA lender.

PPP loan amounts can be for up to two months of a business’s average monthly payroll costs plus an additional 25%, subject to a $10 million cap.  Businesses will only owe money when the loan becomes due if the money is used for expenses other than payroll costs, mortgage interest, rent and utilities over the eight week period following receipt of the loan funds.  Employers must retain their full-time staff headcount, maintain at least 75% of any employee’s salary that made under $100,000 in annualized wages in 2019, and restore all full-time staff and salary levels, which had otherwise been reduced between February 15 and April 26, 2020, by no later than June 30, 2020.  These loans do not require a personal guarantee.  The interest rate for any portion of the loan that is not forgiven will be 1%.  All payments are deferred for six months, and loans must be paid in full within two years. 

Businesses should try to only borrow an amount that is forgivable, if possible.

Insurance     

Unfortunately, many Massachusetts businesses and professional practices cannot wait for federal or state assistance, and have already implemented temporary layoffs due to the mandated office closures.  You should review your insurance policy and ask your insurance advisor to determine if your practice has business interruption coverage. 

At the moment, many insurance carriers are denying coverage.  Pierce & Mandell attorneys are experienced in reviewing and analyzing insurance policies, and in insurance coverage disputes.  Please feel free to contact us if your insurance provider has denied coverage or if you would like us to review your policy.     

Expenses

The three primary or major expenses of any dental practice are likely to be: leases, loans, and labor. 

Office Leases

Small businesses should proactively open an immediate dialogue with their landlord to explore potential compromise measures, including the possibility of rent deferral, partial rent payments, landlord loans, or extending the term of the lease in exchange for rent abatement.  Some leases contain what is referred to as a force majeure clause which may excuse a party's performance under a contract when certain circumstances arise beyond that party's control.  Every lease is different, and you should review yours immediately to determine if it provides any basis for relief from the obligation to pay rent.

In some circumstances, common law doctrines of impossibility and/or impracticability that may be asserted to seek relief from performance of a lease when doing so becomes impossible or commercially impractical. 

Any compromise measures agreed to by the parties should be memorialized in writing.

Loans

Some banks are offering pay holidays for their small business clients.  If you have outstanding loans, you should immediately contact your lender to request a deferral of your next two to three monthly payments without being defaulted.  Any agreement between the business and lender regarding payment deferrals should be memorialized in writing.     

Labor

All practices need to create a comprehensive emergency staffing plan.

To the extent you need to institute workforce reduction measures, including permanent or temporary layoffs, or furloughs, Unemployment Insurance (“UI”) may be available for your employees.  UI may also be available for employees in instances where employees remain with the employer but have their hours and/or pay reduced.  Please note that UI benefits for an employee working reduced hours or at a reduced rate of pay may be affected by the amount of their continued earnings.  If you have had to initiate emergency reductions in your workforce, you must refer your employees to Massachusetts Office of Unemployment Assistance and provide them with information on filing for unemployment insurance.

The Massachusetts Legislature has enacted emergency legislation waiving the one-week waiting period for filing unemployment, and has opened benefits to any and all workers impacted by the COVID-19 public health emergency, regardless of whether they have found themselves out of work on a short-term temporary basis.  The Massachusetts Department of Unemployment Assistance (“DUA”) recently received some guidance from the federal government on portions of the CARES Act and is acting quickly to add an additional $600 to the weekly benefits received by unemployment claimants, retroactive to March 29, 2020.  The DUA is waiting for additional guidance from the federal government on Pandemic Unemployment Assistance under the CARES Act which will make UI benefits available to individuals who are self-employed, have exhausted their unemployment benefits, and other individuals not covered under the general unemployment regulations.  You should check the DUA website for updates on the availability of the application for this program.            

If you terminate employees, whether it is permanent, temporary, or through a furlough, you must provide them with their final paycheck on their last day of service.  This paycheck must include all accrued but unused paid time-off under the policy in your handbook.  If for unforeseen circumstances you cannot deliver an employee a check on their last day of service, then it is best practice to build in a few extra days of payment so they are paid through the date they receive their check.  Any non-exempt employees, i.e., hourly employees, working from home and available on-call, must be paid at their regular rate. 

Exempt employees, i.e., associates and contracted professionals, must be treated differently.  Associate contracts need to be reviewed and followed unless an amendment is agreed to and signed by both parties. Many businesses are converting terms for essential employees, such as their office manager and some associates, to be available and paid on an hourly or reduced pay basis during temporary closures.

You should also be reviewing and keeping in mind your obligations and options concerning your group health insurance programs, if any.  

Businesses with under 500 employees will be subject to the new Paid Sick Leave and Family and Medical Leave pursuant to the federal Families First Coronavirus Response Act, which goes into effect on April 1, 2020 through December 31, 2020.  The law mandates two weeks of paid sick leave for any employee impacted by COVID-19, which can be offset with tax credits for the business.  The law also provides for up to ten weeks of additional paid leave at two thirds of an employee’s pay in order to provide care to a family member or child, including for childcare purposes related to school closures.  These requirements, however, will not apply to those workers laid off prior to the effective date of April 1, 2020.  You can find more information about the Paid Sick Leave and Family and Medical Leave requirements in our blog on those topics.   

Employers with less than 50 employees or “health care” employers, a term which excludes dental practices, can file for an exemption from the requirements of the Families First Coronavirus Response Act.  For businesses under 50 employees, it appears the exemption will be allowed only if the requirements would "jeopardize the viability of the business as a going concern."  The Department of Labor (“DOL”) has issued guidance indicating that a small business may claim this exemption if an authorized officer of the business has determined that:

1. The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;  

2. The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or

3. 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 or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.

We caution that the DOL is likely to interpret the applicability of these leave laws under the Families First Coronavirus Response Act broadly and in favor of employees, and thus provide exemptions only when requiring an employer to provide leave will likely result in the cessation of the business.   

Please note well that all laws and regulations surrounding the COVID-19 pandemic are evolving on a daily basis.  You should contact Pierce & Mandell’s experienced business and employment attorneys if you have any questions whatsoever regarding your business operations, or your rights and obligations with respect to your workforce.

Pierce & Mandell, PC will continue to operate fully during this time of disruption and uncertainty caused by COVID-19. As always, our top priorities are the health and safety of our staff, community, and clients, and our continued accessibility to our clients.

All Pierce & Mandell attorneys have the technology and ability to operate remotely and, consistent with the recent guidance from Massachusetts Governor Charlie Baker, will be doing so until further notice.

Our office will remain staffed by essential personnel to ensure our systems continue to run smoothly. If you have questions about COVID-19 or any other matter, please do not hesitate to contact your P&M attorney.