The rapidly spreading outbreak of COVID-19 has created stressful times for employers and employees alike. Businesses are being shuttered. Employees are being encouraged to work from home. Layoffs are likely to become widespread in the coming weeks.
The reality is that nobody knows how long the pandemic will affect public health or the economy. At least in the short term, however, there is no doubt that jobs are at risk.
While the pandemic presents a challenging public health crisis, it does not change fundamental laws that protect employees. In fact, new laws were recently enacted that may offer some relief to employees who need time off from work to address illnesses, quarantines, and school closures. It is important for employees to understand their rights and to seek legal advice if they suspect an employer has violated an employment law.
Paid Sick Leave and COVID-19
The general rule has long been that employers are not required to offer paid sick leave. Some employers do so voluntarily, pursuant to employment contracts and collective bargaining agreements. Large numbers of employees, particularly those in lower paid jobs, have no income continuation protection if they become sick.
The good news for some employees is that Congress recently enacted the Emergency Paid Sick Leave Act (EPSLA) as part of the Families First Coronavirus Response Act (FFCRA). The EPSLA requires government employers and some private employers to provide paid sick leave to certain employees who are affected by COVID-19.
The bad news is that private employers with more than 500 employees are not subject to the law. Some large employers already provide paid sick leave, although they might not provide as much as the EPSLA requires. In addition, many large employers provide no sick leave benefits to part-time or low-paid employees. Those employees will not benefit from the EPSLA.
In addition, Congress authorized the Department of Labor to create rules that exempt employers of healthcare employees and first responders. The Department is also authorized to create rules exempting businesses with fewer than 50 employees if providing paid sick leave “would jeopardize the viability of the business as a going concern.” Given the Labor Department’s business-friendly approach to regulation during the current administration, it would not be surprising if the Department’s rules exempt most businesses that have fewer than 50 employees.
The law requires covered employers to provide their employees with paid sick leave during times when they are unable to work or telework because they are:
- experiencing COVID-19 symptoms and seeking a diagnosis;
- self-quarantined pursuant to the advice of a healthcare provider;
- complying with a government-issued quarantine or isolation order;
- caring for an individual who has been quarantined or self-quarantined pursuant to a government order or physician’s advice; or
- caring for the employee’s child because a school or daycare provider has been closed or is unavailable because of COVID-19 precautions.
Both full-time and part-time employees are covered. Employees who work for a covered employer are eligible for paid sick leave regardless of how long they have been employed.
Mandatory sick leave pay for an employee who is self-quarantined, quarantined, or seeking a diagnosis is equal to the employee’s regular rate of pay or the minimum wage, whichever is greater. However, the maximum guaranteed sick leave benefit is $511 per day and $5,110 total.
Mandatory leave pay for an employee who is caring for someone else is two-thirds of the amount that would be required if the employee were quarantined. The maximum guaranteed benefit for those employees is $200 per day and $2,000 total.
Full-time employees are entitled to a maximum of 80 hours of sick leave. If they return to work before using the full 80 hours, their paid sick leave will equal the amount of time they actually missed worked.
Part-time employees are entitled to sick leave pay for the number of hours they would have been scheduled to work over a two-week period. If that number cannot be calculated with certainty, the calculation must be based on the average number of hours the employee was scheduled to work during the previous six months of employment.
Duration and Notice
When the full amount of sick leave has been paid, the entitlement ends. In any event, the EPSLA will expire at the end of 2020 unless Congress renews it.
Employers may require employees to give notice of their need for continuing sick leave, but that requirement may only be imposed after the first workday an employee receives paid sick leave.
Restrictions on Employers
An employer may not require an employee to search for or find a replacement to cover the employee’s shifts as a condition of taking paid sick leave.
An employer may not require an employee to use any other leave that it provides to employees (such as paid vacation) before taking paid sick leave.
An employer may not retaliate against an employee for taking a paid sick leave or for bringing a complaint or testifying in a proceeding concerning a violation of the EPSLA. Retaliation includes firing the employee, refusing to reinstate the employee, or discriminating against the employee in other ways.
Employers will be reimbursed for sick leave by federal revenues, generally in the form of tax credits, so they arguably have little incentive to retaliate. The risk, however, is that employers will want to replace quarantined employees with employees who can report to work. The non-retaliation provision may therefore be vital to the success of the paid leave law.
Remedies for Violations of EPSLA
The failure to provide paid sick leave as required by the EPSLA is treated as if the employer failed to pay minimum wage as required by the Fair Labor Standards Act (FLSA). In addition to suing for unpaid sick leave wages, an employee can seek an equal amount of compensation for the employer’s willful refusal to pay wages as required by law. An employee who brings a successful claim can also recover attorney’s fees from the employer.
An employer who unlawfully retaliates against an employee under the EPSLA is entitled to the same remedies as an employee who brings a successful retaliation claim under the FLSA. In addition to back pay, emotional distress damages and reinstatement are available remedies.
Tax Credits for Self-Employed Workers
Self-employed individuals, including workers in the gig economy, can take a tax credit, provided they would be entitled to sick leave under the EPSLA if they were classified as an employee. The credit is generally equal to the worker’s average daily self-employment income (or 67% of that amount if the worker claims the credit for caring for children or quarantined individuals), but not more than $200 per day of eligibility.
FMLA Leave and COVID-19
While the requirement for paid sick leave is a recent response to the COVID-19 crisis, many employees have long been entitled to unpaid leave related to individual or family health problems under certain circumstances. That right still exists. It has also been expanded by a section of the FFCRA known as the Emergency Family and Medical Leave Expansion Act (EFMLEA).
The existing Family and Medical Leave Act (FMLA) requires employers to give an unpaid leave to eligible employees who cannot work because they need treatment for a serious health condition. The leave lasts for up to twelve weeks. The same FMLA leave is also available to employees who need to care for a spouse, child, or parent who suffers from a serious health condition, and to bond with newborn or adopted child.
The EFMLEA expands the FMLA by adding certain childcare leaves that are necessary because of a “public health emergency.” The Secretary of Health and Human Services has declared the spread of COVID-19 to be public health emergency.
The newly authorized leave applies to an eligible employee who works for a covered employer, if that employee “is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable.”
For the purpose of the EFMLEA, a “child care provider” is someone who regularly provides childcare for compensation. If a relative who provided childcare without compensation becomes unavailable, that fact alone would not trigger entitlement to a childcare leave under the EFMLEA.
While the FMLA only mandates unpaid leave, the EFMLEA provides for paid leave. The first 10 days of a childcare leave are unpaid. However, employees who are covered by EPSLA can use their paid sick leave to care for their children.
Employees who are not covered by EPSLA and those who have used their EPSLA benefits will need to take the first 10 days unpaid. However, employees must be permitted to substitute paid sick days, paid vacation days, or other paid benefit days (if they have them) for unpaid leave days that they take under the EFMLEA.
After 10 days, employees who take a childcare leave must be paid their regular rate, subject to a maximum of $200 per day. Employers are not required to pay more than $10,000 in total to an employee who takes a childcare leave.
The average hourly wage in the United States is $27.16, or $217.28 for an 8-hour day. An employee who earns an average wage will therefore receive paid childcare leave of $200 per day. Assuming a 5-day workweek, the employee will exhaust paid benefits after 10 weeks. Adding those weeks to the first two weeks that are covered by the EPSLA allows an employee to be paid for the full twelve weeks of leave provided by the FMLA.
Except for the new childcare leave, employees are only eligible for FMLA leave if they have worked for the employer for at least a year before the leave commences, and have worked at least 1,250 hours during that year. In addition, the employee must work for an employer that has employed at least 50 people for at least 20 weeks during the current and previous year, and must work at a location that has at least 50 employees within 75 miles.
The new childcare leave provision (and only that provision) applies to all employees who have worked for at least 30 days for an employer that has fewer than 500 employees. The requirement that the employer must have at least 50 employees does not apply to the new childcare leave. However, as is true of the new sick leave law, the Department of Labor has been authorized to exempt certain employers that have fewer than 50 employees. Those exemptions have not yet been announced.
FMLA Leave for Illness
The EPSLA pays sick leave for only ten workdays. An employee who cannot return to work after ten days because of a COVID-19 infection may be eligible for an unpaid FMLA leave.
A “serious health condition” that triggers FMLA leave entitlement includes any illness that requires inpatient care or continuing care by a healthcare provider. An infection that requires overnight hospitalization should therefore be regarded as a serious health condition during the term of the hospitalization.
A COVID-19 infection that does not cause hospitalization should be regarded as a serious health condition if it causes an inability to work for at least three consecutive days and is treated on at least two occasions within the first 30 days by a physician or someone (such as a nurse) who is designated by a physician to provide care. The first treatment visit with a physician must occur within 7 days of the first lost workday. The second treatment visit may not be necessary if, during the first visit, the physician imposes “a regime of continuing treatment” under the physician’s supervision.
The FMLA generally requires employees to give an employer notice at least 30 days in advance of their need for a leave, or as soon as they can when symptoms develop too rapidly to make advance notice reasonable. The ability to give notice within 30 days of a COVID-19 infection will be rare, since symptoms tend to develop rapidly.
The 30-day notice does not apply to the new EFMLEA leave for childcare. The law does, however, require employees to give employers as much notice as is “practicable.” It is best for employees to notify their employers as soon as they realize they will need to take a leave.
Employers sometimes reject FMLA claims (often unlawfully) because they are dissatisfied with the notice an employee provided. It is wise to obtain legal advice if an employer rejects an FMLA leave because an employee provided insufficient notice.
Retaliation and Job Restoration
Under most circumstances, the FMLA requires employers to restore employees to their former jobs when the leave ends. That rule applies whether an employee takes a traditional FMLA leave to cope with an illness, or takes the new childcare leave to look after children because of a closed school or daycare center.
Employers sometimes take unlawful advantage of the limited exceptions to the job restoration requirement. Employers too often claim that an employment termination was unrelated to an employee’s request to take an FMLA leave. An employee who is not allowed to return to work after taking an FMLA leave — or who is fired after requesting a leave — should seek legal advice.
Discrimination Laws and COVID-19
Employers have started to lay off large number of employees because of COVID-19. Employers generally have the right to fire or lay off any employee unless an employment contract or civil service law protects the employee’s right to continued employment.
Regardless of an employer’s general right to terminate employment, an employer cannot base layoffs on an employee’s membership in a protected class. Federal law protects against discrimination on the basis of race, color, national origin, sex, age (40+), disability, and religion. Green card holders are also protected from discrimination on the basis of citizenship. Florida law additionally prohibits discrimination based on marital status, HIV/AIDS infection, and sickle cell trait.
Those laws do not prohibit employers from firing employees who are in a protected class, but they do prohibit employers from firing employees because they are in a protected class. For example, if a business decides that it needs to lay off half its workers to respond to a loss of business, it cannot prioritize layoffs of Hispanic employees because of their nationality or female employees because of their gender.
Evidence that an employee was fired or laid off because of membership in a protected class usually comes from comparisons to other employees. If the employer is using neutral criteria (such as job duties or seniority) to select employees who are laid off, the employer is probably not violating the law. If an employer is disproportionately laying off employees who are in a protected class, it may be worth asking whether the employer’s selection criteria are truly neutral. An employment attorney can help affected employees answer those questions.
Disability Accommodation Laws and COVID-19
The Americans with Disabilities Act (ADA) prohibits discrimination against disabled employees or job applicants. It also requires employers to provide reasonable accommodations for disabled employees if accommodations will allow an employee to perform essential job duties without causing an undue hardship to the employer.
Whether a COVID-19 infection will meet the legal definition of a disability may depend on the duration of symptoms and the extent to which the employee’s ability to breathe, walk, or engage in other ordinary pursuits is affected. However, since the ADA also prohibits discrimination against employees who are regarded as being disabled, it is not always necessary to prove that the infection is actually disabling.
Requiring employees to stay home if they have a COVID-19 infection or associated symptoms does not violate the ADA, provided that all infected employees are treated equally. Requiring some sort of medical assurance that an employee is fit to return to work after the employee has been quarantined is generally not an ADA violation.
Allowing an employee to work from home might be a reasonable accommodation for a disabling COVID-19 infection, depending on the nature of the job. Extending a leave, or allowing a leave if no leave is available under the FMLA, might also be a reasonable accommodation. What is “reasonable” requires a careful assessment of all the facts and circumstances.
Job applicants should be aware that the ADA prohibits employers from requiring an applicant to undergo a medical exam unless the employer has made a job offer. After making a job offer, employers can condition employment on passing a health screening, provided they treat all applicants in the same way. The Equal Employment Opportunities Commission has concluded that taking an applicant’s temperature is a medical exam, so job applicants who must submit to a temperature check as a condition of applying for a job have likely suffered unlawful discrimination.
Since the application of the ADA during a pandemic is not always clear, employees and job applicants who believe they were the victims of employment discrimination should seek legal advice.