President Trump has signed the First Coronavirus Response Act which will go into effect on April 1, 2020, affording employees rights due to COVID-19.
With so much information coming in relating to coronavirus (“COVID-19”), legislation is continuing to evolve to afford employees more rights in their workplace and we feel it is vital to share this information with you.
President Trump has signed the First Coronavirus Response Act (“FFCRA”), an amendment to the Family and Medical Leave Act (“FMLA”) which will go into effect on April 1, 2020. Additionally, other resources, such as the Equal Opportunity Commission, the Department of Labor and OSHA have all issued guidance as to the rights of employees due to COVID-19 coronavirus.
FAMILIES FIRST CORONAVIRUS RESPONSE ACT AMENDS FMLA TO ADD PUBLIC HEALTH EMERGENCY LEAVE
Currently, under the Family and Medical Leave Act (“FMLA”), any employer who employs more than fifty (50) employees who have worked for at least 1,250 hours and at least 12 consecutive months would be entitled to twelve (12) weeks of unpaid leave under certain health and immediate family circumstances.
The FFCRA expands coverage to all public employees and private employers who employ less than 500 employees. However, an employer with fewer than fifty (50) employees may seek an exemption from the Department of Labor. The Act also will only require an employee to have worked for the employer for at least thirty (30) days.
HOW TO QUALIFY FOR BENEFITS UNDER FFCRA
In order to qualify for Public Health Emergency Leave, an employee must have a qualifying need related to COVID 19 coronavirus. To establish a qualifying need, the employee must show that they are not able to work, or telework due to the following reasons:
- The employee is subject to a federal, state or local quarantine or isolation order related to COVID-19;
- The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
- The employee is experiencing symptoms of COVID-19 and seeking medical diagnosis;
- The employee is caring for an individual who is subject to a federal, state or local quarantine order, or the individual has been advised to self-quarantine due to concerns related to COVID-19;
- The employee is caring for their son or daughter if the child’s school or child care facility has been closed or the child’s care provider is unavailable due to COVID-19 precautions; or
- The employee is experiencing any other substantially similar condition specified by Health and Human Services in consultation with the Department of the Treasury and the Department of Labor.
LEAVE BENEFITS UNDER THE PUBLIC HEALTH ACT
Employees who take Public Health Emergency Leave will be eligible for the same amount of FMLA leave (12 weeks) as employees who take leave for other FMLA-covered reasons. In Addition, Public Health Emergency Leave will also provide paid leave for any eligible leave taken after the ten (10) unpaid days. Employees may opt to use or substitute any accrued paid time off, vacation time, sick leave, or other paid leave during this initial period (including sick leave under the Emergency Paid Sick Leave Act described below).
After the first ten (10) days employees are entitled to leave at a rate of two-thirds the employees’ regular rate of pay, and for the number of hours the employee would usually be scheduled to work. An employee is entitled to a maximum of $200 per day and no more than $10,000.00 in aggregate. For employees who work with all different schedules and hours, the employer is only required to pay the average daily hours the employee would have reasonably expected to work when hired.
JOB PROTECTION UNDER THE PUBLIC HEALTH ACT
Similar to FMLA leave, The Public Health Act guarantees employees the right to resume their same or similar position upon their return. However, employers with less than twenty-five (25) employees are exempt from this requirement if:
- The position held by the employee no longer exists due to the economic conditions or other changes in operating conditions affected by coronavirus (COVID-19) emergency as declared by a federal, state or local authority;
- The employer has made reasonable efforts to restore the employee to an equivalent position with equivalent pay, benefits and other terms of conditions but those reasonable efforts have failed; and
- The employer has made reasonable efforts to contact the employee about an equivalent position, if one becomes available, for one year following the conclusion of the COVID-19 emergency or the conclusion of the 12-weeks of coronavirus-related leave taken by the employee, whichever is earlier.
PAID LEAVE UNDER THE EMERGENCY PAID LEAVE ACT
The FFCRA also enacts The Emergency Paid Sick Leave Act (“Sick Leave Act”). Under the Sick Leave Act, Employees would be entitled to paid sick leave, regardless of how long they have been employed by the employer. The Sick Leave Act also applies to only private employers who have less than 500 employees. However, the Secretary of Labor may exempt employers with less than fifty (50) employees, if the obligation would jeopardize the viability of the business.
- Full-time employees are entitled to eighty (80) hours of paid sick leave, and part-time employees are entitled to an equivalent to those hours the employee works, on average, over a two week period.
- For employees who are on leave due to exposure to COVID-19 coronavirus, an employer must pay the employee 100% of the employee’s regular wages, up to $511 per day, for a total of not more than $5,110.00.
- For any leave taken to care for a family member whose childcare or school is closed, the employer must pay two-thirds of the employee’s regular rate of pay, for up to $200.00 a day for a total of not more than $10,000.00.
- Employers cannot force you to use up your vacation or other sick time before receiving this benefit.
THE AMERICAN WITH DISABILITIES ACT (ADA)
The ADA, which protects applicants and employees from disability discrimination, is relevant to pandemic preparation such as the COVID-19.
The ADA requires reasonable accommodations for individuals with disabilities during a pandemic. Employees with disabilities that put them at high risk for complications of COVID-19 may request telework as a reasonable accommodation to reduce their chances of infection during the pandemic. Having symptoms associated with the COVID-19, which are also similar to the common cold and flu, does not rise to the level of disability. However, having a complication such as pneumonia or having a compromised immune system may require your employer to provide you with accommodations.
THE OCCUPATIONAL SAFETY AND HEALTH ACT (OSH ACT)
The Occupational Safety and Health Act (OSH Act) provides employees the right of working on a safe work environment. Under the OSH Act, employees who believe they are working on hazardous working conditions may bring their concerns to the employer’s attention. The employer is required to provide a safe work environment, and for that reason, the Administration Occupational Safety and Health (OSHA) has provided resources to help employers and workers prepare for and address potential health risks from the coronavirus in the workplace.
OSHA standards apply to prevent occupational exposure to COVID-19 and also require employers to train workers on the elements of infection prevention. Employers may also be required to provide personal protective equipment to their employees.
In addition, OSHA recently launched a COVID-19 webpage that provides infection prevention information specifically for workers and employers. This website is under active review and officials are constantly responding to any complaints regarding workplace protection from this novel coronavirus, as well as conducting outreach activities.
OSHA Guidelines includes, among others, the following recommendations to employers:
- Providing flexible sick leave policies consistent with public health guidance and ensure that employees are aware of these policies.
- Do not require an employee to provide a healthcare provider’s note to prove that they are infected with COVID-19, or condition their return to work on such a note.
- Implement safe work practices by providing resources and a work environment that promotes personal hygiene, requiring regular hand washing or use of alcohol-based hand rubs to minimize the risk of virus exposure.
If you believe you have been discriminated against, terminated or retaliated against for voicing your concerns about COVID-19 coronavirus in the workplace, we recommend scheduling a consultation with a qualified labor and employment lawyer. An experienced labor and employment attorney can advise you on an appropriate legal strategy that ensures your legal rights are protected, and your legal claims are successfully advanced.
Should you wish to schedule a consultation, please fill out our Employment Law Contact Form and someone will contact you as soon as possible.
- OSHA Guidance on Preparing Workplaces for COVID-19.
- Temporary OSHA Guidance on Respiratory Protection Standard.
- U.S. Centers for Disease Control and Prevention COVID-19 webpage.
- EEOC Most Frequently Asked Questions
- Pandemic Preparedness in the Workplace
- Wage and Hour Most Frequently Asked Questions
- Contact Us Regarding COVID Violations.