March 19, 2020

Related Professionals: Shelly R. Pagac , Gaetan J. Alfano , Information from our Employment & Labor Group to help you navigate COVID-19

The Families First Coronavirus Response Act (Act) was signed by President Trump on March 18, 2020.  The bill becomes law on April 2, 2020.Under the new law, certain employees will be eligible to receive paid sick and family leave through December 31, 2020 for leave related to COVID 19.  Relevant portions related to employment law are as follows:

Emergency Family and Medical Leave Expansion Act

This provision expands the Family Medical Leave Act (FMLA).  It applies to employers with fewer than 500 employees.  It includes employers with less than 50 employees who were previously not subject to the FMLA.  Employees who have been employed for thirty days or more are entitled to take up to twelve weeks of job-protected leave:

• To care for employee’s child whose school or child care facility has been closed due to the coronavirus.

The first ten days can be unpaid unless the employee chooses to substitute paid time off.  After the first ten days, the employee receives two-thirds of their regular rate, capped at $200 per day.  Part-time employees will be entitled to two-thirds of their paid sick leave in the amount equal to the average amount of hours they work for the six months prior to taking Emergency FMLA, capped at $200 per day.

The Secretary of Labor may exempt small businesses with fewer than 50 employees if the imposition of such requirements would jeopardize the viability of the business.

Emergency Paid Sick Leave

This provision applies to employers with fewer than 500 employees.  Employers will be required to provide job-protected paid sick leave to all employees who require leave for the following reasons:

1. The employee is subject to a federal, state or local quarantine because of the coronavirus;
2. The employee must obtain medical care if he or she is experiencing symptoms of coronavirus;
3. The employee must comply with health care provider recommendations to self-quarantine due to the coronavirus;
4. The employee must care for an individual who is subject  to federal, state or local quarantine or to comply with a health care provider recommendation due to the coronavirus;
5. The employee must care for the employee’s child whose school or child care facility has been closed  due to the coronavirus; and
6. Any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of Treasury and the Secretary of Labor.

Full-time employees will be entitled to eighty hours of paid sick leave; part-time employees will be entitled to paid sick leave in the amount equal to the average amount of hours they work over a two-week period.  Leave entitlement is in addition to any paid sick leave already provided under the employer’s existing sick leave policy.  Employees are entitled to their regular rate of pay, up to $511 per day.  However, employees will receive two-thirds of their regular rate, capped at $200 per day, if such leave is taken for the purpose of caring for an individual who is subject  to federal, state or local quarantine, caring for an individual who has to comply with a health care provider recommendation due to the coronavirus, or to care for the employee’s child whose school or child care facility has been closed due to the coronavirus.  Failure to provide this emergency paid sick leave can result in penalties under the Fair Labor Standards Act.

Employers will be able to recover some costs associated with the paid emergency family and medical leave and emergency sick leave through tax credits.

EEOC GUIDANCE ON THE CORONAVIRUS

The U.S. Equal Employment Opportunity Commission (EEOC) enforces workplace anti-discrimination laws including the Americans with Disabilities Act (ADA) and the Rehabilitation Act.  The ADA generally prohibits an employer from making disability-related inquiries and requiring medical examinations of employees.  In light of the coronavirus pandemic, the EEOC has issued guidance related to the coronavirus which is summarized below:

• An employer may send home employees if they display COVID-19 like symptoms;
• An employer may ask such employees who report feeling sick if they are experiencing COVID-19-like symptoms, such as fever or chills, cough or sore throat. Employers must maintain all information about employee illness as confidential;
• An employer may check an employee’s temperature;
• An employer may tell employees who become ill with symptoms of COVID-19 to stay home or leave work;
• An employer may require employees returning to work to provide a doctor’s note stating they are fit for duty;
• An employer may screen job applicants for symptoms of COVID-19 after making an offer as long as it does so for all entering employees in the same type of job; and
• An employer may withdraw a job offer when it needs the applicant to start immediately but the individual tests positive for COVID-19 or has symptoms of it.

You can visit the EEOC website for more information by clicking here. If you need to speak with an Attorney, we invite you to visit our Employment & Labor team page for more information.