Updated 3/26/2020
In response to the COVID-19 corona virus outbreak, Governor Bullock has enacted emergency orders impacting a number of Montana Businesses. As of Friday March 20, Bullock ordered the shutdown of bars, restaurants, as well as facilities where members of the public can congregate. Both Montana, and the U.S. Government, have extended relief to employers and employees affected by COVID disruption. Additional relief is expected to come from the Congressional bailout package which is currently in front of the U.S. House of Representatives.
WHAT BUSINESSES ARE SUBJECT TO THE STATE SHUTDOWN ORDER?
- Restaurants, food courts, cafes, coffeehouses and other similar establishments offering food or beverage for on-premises consumption.
- Alcoholic beverage service businesses, including bars, taverns, brew pubs, breweries, microbreweries, distilleries, wineries, tasting rooms, special licensees, clubs, and other establishments offering alcoholic beverages for on-premises consumption.
- Cigar bars.
- Health clubs, health spas, gyms, aquatic centers, pools and hot springs, indoor facilities at ski areas, climbing gyms, fitness studios and indoor recreational facilities.
- Movie and performance theaters, nightclubs, concert halls, bowling alleys, bingo halls, and music halls.
CAN I OFFER TO-GO AND DELIVERY SERVICES IF I OPERATE A BAR OR RESTAURANT THAT IS CLOSED DUE TO SHUTDOWN?
Yes. Restaurants and bars who offer food services are still permitted to offer food options to customers for pick-up or delivery only. Food pick-up does not need to occur curbside, and can take place within the premises. The restriction prevents any dine-in services. In an unprecedented move, Governor Bullock has allowed bars, breweries, and wineries to sell alcohol to the public for pick-up or delivery. Bars are permitted to serve take-out drinks in individual servings “to go,” but the customer assumes responsibility for open container liability. Only retailers and manufacturers with an active alcoholic beverage license or an agency liquor store with a franchise agreement is permitted to offer alcohol delivery, and all laws relating to Responsible Sales and Service of alcohol apply- i.e., must confirm legal age and cannot serve anyone who is intoxicated.
IF A SHUTDOWN OF ALL NON-ESSENTIAL BUSINESSES IS ORDERED BY THE STATE, HOW WILL I KNOW IF MY BUSINESS PROVIDES ESSENTIAL VERSUS NON-ESSENTIAL SERVICES?
If the Governor takes this step, guidance will be provided to delineate essential and non-essential businesses. Generally, grocery stores, gas stations, health care services, and banks are considered to be amongst those businesses classified as “essential.”
HOW LONG IS THE STATE SHUTDOWN EXPECTED TO LAST?
The current state shutdown notice is effective through April 10.
IS THERE ANY RELIEF FOR BUSINESSES WHO ARE PAYING SICK LEAVE DUE TO COVID-19?
The U.S. Treasury Office, the IRS, and the U.S. Department of Labor announced on March 20 that any business with less than 500 employees is entitled to payroll tax credits to compensate them, dollar-for-dollar, for the cost of providing Corona virus related leave under the Families First Coronavirus Response Act. These funds are available for the employee’s own health needs, or if the employee is caring for family members. Pursuant to this Act, employees are entitled to receive up to 80 hours of paid sick leave at 100% of their pay due to their own illness or quarantine, which the employer will recoup in payroll tax credits up to a maximum of $511 per day. Employees who are away from work to care for children due to school or childcare closures, or to care for an individual in quarantine, are entitled to 80 hours of paid sick leave at 2/3 the employee’s pay.
WHAT ASSISTANCE IS AVAILABLE IF I NEED TO LAY OFF EMPLOYEES DUE TO COVID CLOSURES OR DISRUPTION?
Governor Bullock has mandated that employees affected by COVID layoffs are entitled to unemployment benefits and do not need to exhaust the customary 1 week “waiting period” to receive benefits. Due to influx of new claimants over the last week, claimants can expect to still wait about 1 week to receive unemployment benefits. Employees who have received a reduction in hours can also seek unemployment benefits. Employees who choose not to report to work due to social distancing concerns when that workplace is open are not eligible to receive benefits. Claimants can file unemployment claims via the state site, montanaworks.gov.
IF MY BUSINESS IS NOT INCLUDED IN THE STATE SHUT DOWN ORDER AND WE SHUT DOWN VOLUNTARILY, ARE MY EMPLOYEES STILL ENTITLED TO UNEMPLOYMENT BENEFITS?
Yes. The Order allows a claimant directed by their employer to leave work or not report to work due to COVID-19 to qualify as being temporarily laid off by the employer and eligible for benefits. Workers who must quarantine or who need to take care of a family member due to COVID-19 are also considered temporarily laid off and eligible for benefits.
IS THE BUSINESS REQUIRED TO PAY OUT ACCRUED “PAID TIME OFF” (PTO) AT THE TIME OF LAY-OFF?
If the COVID-19 layoff is considered “temporary” by the employer and employee, pay out of accrued leave is not required. The layoff is temporary if the employer intends to recall the employee at the end of the temporary layoff, and the employee should be staying in contact with the employer regarding work status. If the layoff becomes permanent, then the employee is entitled to payout of accrued leave.
WHAT HAPPENS TO MY EMPLOYEE’S HEALTH CARE COVERAGE IF THEY ARE LAID OFF?
This is likely determined by the Health Plan in place for your employees. Typically, if an employee is laid off and not working, their health coverage will terminate at the end of the month in which the employee is laid off.
IS THERE ASSISTANCE FOR HEALTH COVERAGE FOR LAID-OFF EMPLOYEES?
On March 17, Governor Bullock declared that testing and treatment of COVID-19 will be covered for uninsured Montanans. The individual would need to provide a recommendation from a physician to receive COVID-19 testing and treatment, and the state will cover those costs.
WHAT IF MY NATIONAL GUARD RESERVE EMPLOYEE IS CALLED TO ACTIVE DUTY TO ASSIST WITH THE COVID-19 OUTBREAK?
Federal law requires that any military reserve members are entitled to a 5 year unpaid leave when they are called to active duty, and a return to their previous job and benefits upon their release from active duty.
IF MY EMPLOYEE CONTRACTS COVID-19 AT WORK, ARE THEY ENTITLED TO WORKER’S COMPENSATION BENEFITS?
At this time, no. These claims are not covered by Work Comp.
**This publication does not constitute legal advice. Please contact either the Bozeman or Helena locations of Silverman Law Office with questions about your specific situation. We are here to help!**