In the rapidly changing landscape of the COVID-19 (Coronavirus) pandemic, the United States Congress passed the Families First Coronavirus Response Act (“FFCRA”), which provides paid leave leave to those employees affected by the pandemic.
Recently, the Equal Employment Opportunity Commission (the “EEOC”) issued guidance to help employers navigate the intersection of the COVID-19 pandemic and anti-discrimination laws.
The Families First Coronavirus Response Act
On March 18, 2020, Congress passed, and the President signed into law, The Families First Coronavirus Response Act (“the Act”). According to the text of the legislation, the law was to go into effect no later than 15 days after it was signed, which put the start date at April 2nd. However, recent guidance issued by the Department of Labor states that the law will be effective as of April 1, 2020. Therefore, all covered employers should prepare to implement its provisions by April 1, 2020.
The Act provides paid sick leave, free coronavirus testing, food assistance and unemployment benefits.
The most important provisions of the Act for employers relate to an expansion of the Family and Medical Leave Act (“FMLA”) which will cover more employers and employees, and the paid sick leave provisions.
Emergency Family and Medical Leave Expansion
The Act temporarily expands coverage under the FMLA as follows:
1. Coverage. Employers with less than 500 employees are covered. This means that you are covered by these provisions if you have at least one employee. For those of you with 50 employees or less this is a big change because you haven’t had to deal with the FMLA previously.
That said, the Secretary of Labor can issue regulations exempting employers with less than 50 employees if complying would jeopardize the viability of the business. I’ll keep an eye on this and will provide additional information if or when it becomes available. As of today, it’s not clear how these exemptions will be handled and if/when the Secretary of Labor will issue any guidance.
2. Eligible Employees. An eligible employee is someone who has been employed with you for at least 30 calendar days. This covers both full and part-time employees.
3. Amount of Leave and Reasons for Leave. An eligible employee may take up to 12 weeks of job-protected leave if the employee is unable to work (or work remotely) because he or she needs to care for a child under 18 years of age due to closure of the child’s school or place of care, or the child’s usual care provider is unavailable, due to a public health emergency.
This expansion only applies to caring for a child as explained above. However, if your business was a covered employer under the FMLA prior to this expansion, then your employees remain eligible for FMLA leave pursuant to the terms and eligibility requirements of the FMLA as it existed prior to this expansion.
4. Paid Leave. The first 10 days of this leave may be unpaid. However, the employee can substitute sick, personal or vacation time to which he or she is otherwise entitled during this initial 10 days of leave. After the initial 10 days, the employer must provide paid leave.
5. Pay Amount and Limits. The amount of pay to which a full-time employee is entitled is equal to two-thirds of the employee’s regular pay rate for the number of hours the employee is otherwise normally scheduled to work.
If an employee is part-time or doesn’t work a set number of hours (in other words, their hours are variable), then you will have to determine the average number of hours the employee worked over a six-month period.
The Act limits the pay entitlement to $200 per day and $10,000 total per employee.
6. Job Restoration. Employers with more than 25 employees will have the same obligation under the FMLA to restore an employee to the same or equivalent position when he or she returns from leave. Employers with less than 25 employees are excluded from this requirement if: (1) the employee’s position no longer exists due to economic conditions or other circumstances caused by the public health emergency; (2) the employer makes a reasonable attempt to restore the employee to the position or equivalent; and (3) the employer attempts to return the employee to an equivalent position within one year.
Emergency Paid Sick Leave
This provision of the Act also applies to employers with less than 500 employees. It provides for emergency paid sick leave if an employee is:
1. Subject to a federal, state, or local quarantine or isolation order related to COVID-19;
2. Advised by a health care provider to self-quarantine due to concerns related to COVID-19;
3. Experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
4. Caring for an individual who is subject to a federal, state or local quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
5. Caring for their child if the school or place of care of the child has been closed or the child care provider of such child is unavailable due to COVID-19 precautions; or
6. 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.
Full-time employees are eligible for 80 hours of paid sick time. Part-time employees are eligible for the number of hours that the employee works, on average, over a 2-week period.
For paragraphs 1 through 3 above, there is a cap of $511 per day and $5,110 total per employee. For paragraphs 4 through 6, the cap is $200 per day and $2,000 total per employee.
Employers may not require an employee to use other paid leave before using the paid sick time.
And employers may not require an employee to search for or find a replacement employee to cover the hours in which the employee is using the paid sick time.
Required Notices
Employers are required to post a notice. The Department of Labor has issued two model notices, which can be found here and here.
Tax Credits
There are tax credits for employers who are required to provide FMLA leave or sick leave under the Act. Your CPA will be able to discuss this issue with you once they have an opportunity to review this legislation.
EEOC ISSUES NEW GUIDANCE
The Equal Employment Opportunity Commission (“the EEOC”), which enforces workplace anti-discrimination laws, including the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act, has issued guidance for employers dealing with the COVID-19 pandemic. Obviously, this guidance deals directly with the pandemic, and the guidance it issued relates only to issues related to COVID-19.
The EEOC stated that, although both the ADA and Rehabilitation Act continue to apply, they do not interfere with, or prevent employers from following, the guidelines and suggestions made by the Centers for Disease Control and Prevention (“CDC”) or state and local public health authorities concerning steps employers should take regarding COVID-19.
Some specifics from the EEOC guidance are outlined below:
– During a pandemic, employers may ask employees who call in sick if they are experiencing symptoms of COVID-19, which may include fever, chills, cough, shortness of breath or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
– Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued precautions, employers may take employees’ temperatures. Employers may also take a job applicant’s temperature as part of a post-offer, pre-employment medical examination.
– The ADA allows employers to require employees who become ill with symptoms of COVID-19 to stay home based on the CDC’s statement that such employees should leave the workplace.
– Employers can require doctors’ notes certifying fitness for duty upon employees’ return to work.
– Employers may screen job applicants for COVID-19 symptoms after making a conditional job offer, as long as it does so for all job applicants in the same type of job. This applies whether or not an applicant has a disability under the ADA.
– Employers may delay the start date of a job applicant who has COVID-19 or symptoms associated with COVID-19.
– Employers may withdraw a job offer to an applicant if the applicant has COVID-19 or the symptoms of COVID-19 and the employer needs the applicant to start immediately.
Obviously, the current conditions are changing day-to-day and additional guidance will likely be forthcoming on a myriad of employment issues related to the pandemic.
If you would like to discuss any of this, or need guidance to ensure your business is in compliance, please call 904-201-4149 or email me at steve@zakrockilaw.com to set up some time to discuss these issues.
