COVID-19: Your Employment Rights

 

Last week, President Trump signed the Families First Coronavirus Response Act, which will go into effect April 2, 2020 and expires December 31, 2020.  The Act requires employers to provide paid Federal Medical Leave Act (FMLA) and paid sick leave arising from the COVID-19 pandemic.  The Act applies to employers with fewer than 500 employees and provides the Secretary of Labor with discretion to exclude or exempt employers with fewer than 50 employees, healthcare providers, and emergency responders. 

Emergency FMLA
 
The Emergency FMLA expands protections provided by the FMLA by guaranteeing up to 12 weeks of leave to eligible employees who need to care for their children because of school closure and loss of childcare related to COVID-19.  To be eligible, employees must have been employed for at least 30 days and be unable to work (or work remotely) to care for a minor child if the child’s school or place of childcare has been closed due to COVID-19. 
 
The first 10 days of leave may be unpaid, although employees may elect to substitute accrued vacation, personal, or medical leave for unpaid leave.  After the first 10 days, the employer must provide paid leave at two-thirds of the employee’s regular rate of pay for the number of hours the employee would normally be scheduled to work—up to $200 per day and $10,000 total.
 
For employees whose schedules vary, the employer must use an average number of hours the employee was scheduled per day, over the course of the preceding 6-month period.   For employees who did not work during in the 6-months leading up to the leave, the employer should use reasonable expectations of employees, relying on the average number of hours the employee was expected to work per day at the time of hiring.
 
Employees taking emergency leave are entitled to the same job protection and restoration as employees taking any other category of leave under the FMLA.  However, employers with less than 25 employees do not need to comply with restoration obligations if the position held by the employee when the leave commenced no longer exists because of business changes or economic conditions caused by COVID-19 during the employee’s leave; the employer makes reasonable efforts to restore the employee to an equivalent position; and if those efforts fail, the employer makes reasonable efforts to contact the employee if an equivalent position becomes available within 1 year.

Emergency Paid Sick Leave
 
Paid sick leave is available to eligible employees immediately.  Full-time employees will receive 80 hours of paid sick leave.  Part-time employees will receive an allotment of paid sick leave equal to the average number of hours worked over a 2-week period. 
 
Eligible employees may take paid sick leave for 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 related to COVID-19.
  • The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis.
  • The employee is caring for an individual who has been advised by a health care provider to quarantine.
  • The employee is caring for a child, if the school or place of care has been closed, or the childcare provider is unavailable due to COVID-19.
  • The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

 
Employers may not discharge, discipline, or discriminate against employees who use paid sick leave, file a complaint, or participate in the enforcement of the Act.  In addition, eligible employees may not be required to use other paid leave before using paid sick time under the Act.