What Are an Employer’s Responsibilities When Employees Are Affected by COVID-19?

By Ilona Demenina Anderson

Effetive April 2, 2020, Florida imposed a statewide stay-at-home order. Some local governments have previously imposed such an order. Thousands of Floridians are also staying at home because they have COVID-19 symptoms. The situation is fluid and it is unclear how much time will pass before employees will be able to return to work. As a consequence, businesses need to make difficult decisions about their workforce.

Employees of some businesses can work from home. Other businesses — including restaurants, retail stores, repair shops, and hospitals — cannot serve the public (to the extent they are permitted to do so given the current restrictions) unless their employees come to work. Those businesses face difficulties when their employees must stay at home because they are exhibiting COVID-19 symptoms or are caring for their children because of school closures. Conversely, other businesses are not able to maintain operations and have to make difficult decisions involvings layoffs, reducitons in pay and furloughs.

The COVID-19 crisis has not resulted in a suspension of employment laws that employers must follow when they make difficult decisions about their workforce. In fact, Congress recently enacted two new laws that govern most small business employers. Those laws address sick pay and family leaves.

The new laws took effect on April 2, 2020, and will expire at the end of the year. While they do not cover every employer, it is important for employers with fewer than 500 employees to be aware of the new obligations that are imposed on their businesses.

At the same time, employers should be aware of their continuing obligation to comply with existing employment laws when they consider whether to fire or lay off employees. Before making a decision that might create legal liability, employers may want to seek legal advice.

Paid Sick Leave

The Emergency Paid Sick Leave Act (EPSLA) was enacted as part of the Families First Coronavirus Response Act. It took effect on April 2, 2020. The law requires most employers with fewer than 500 employees to give up to 80 hours of paid sick leave to their employees under certain circumstances. The law provides a mechanism for businesses to recover those costs through tax credits.

Covered Employers

The EPSLA applies to all employers, including nonprofit organizations, that have fewer than 500 employees. All persons presently on an employer’s payroll are counted when deciding whether the employer is covered, whether or not they are actually being paid, including full- and part-time employees, temps, and employees who are on paid or unpaid leave. Employees who have been laid off or furloughed are not on the payroll and are not counted.

New rules created by the Department of Labor (DOL) specify that whether EPSLA requires a business to give an employee a paid leave depends on the number of employees the business has on the date the leave would begin. Thus, an employer with 490 employees is covered by EPSLA and must give a paid sick leave to an employee who is eligible for one. However, if the employer hires 10 new employees on the following day, the employer would not be required to give a paid sick leave to an employee who became eligible that day. Adding extra employees does not affect the obligation to give paid leave to employees who were entitled to one while the business was still a covered employer.

The DOL was also authorized to exempt employers that have fewer than 50 employees if providing paid sick leave would “jeopardize the viability of the business as a going concern.” The DOL has identified three circumstances under which a small employer may claim an exemption: (1) if the business would need to cease operations because its expenses and debt payments would exceed its revenues; (2) if granting the leave to a key employee or employees “would pose a substantial risk to the financial health or operational capacity of the small employer because of their specialized skills, knowledge of the business, or responsibilities”; or (3) if an insufficient number of replacement workers are available to keep the business operating.

All of the exceptions require proof that the business cannot continue to operate at a minimal capacity (rather than full or desired capacity) if paid leaves are granted. If a certain number of leaves can be granted without forcing the business to close, leave requests must be granted until that number is reached. The DOL rules require small employers to maintain documents that establish their eligibility for exemptions if they are denying leave to someone who has asked for a leave because of a school closing or an unavailable childcare provider.

Employees Entitled to Paid Sick Leave

Both full-time and part-time employees are covered by EPSLA. Employees are eligible regardless of how long they have worked for the employer.

Except for healthcare workers and first responders, employees of a covered business are eligible to take up to 80 hours of EPSLA leave if they are:

  • seeking a diagnosis because they are experiencing COVID-19 symptoms;
  • self-quarantined pursuant to a physician’s order because of a possible or confirmed COVID-19 infection or particular vulnerability to COVID-19;
  • staying at home to comply with a quarantine or isolation order issued by the government;
  • caring for a person who has been quarantined by the government or is self-quarantined pursuant to a physician’s order; or
  • caring for the employee’s minor child (or a physically or mentally disabled adult child who is incapable of self-care) because of a school closing or the unavailability of a childcare provider due to COVID-19 precautions.

The new DOL rules have described in more detail the employees who are eligible for paid sick leave under those five criteria.

Diagnosis or self-quarantine

If an employee seeks a COVID-19 test and a doctor advises the employee to self-quarantine while awaiting the test result, the employee is entitled to take an EPSLA leave both for the time it took to arrange for and take the test and for the time spent in self-quarantine. If a doctor does not advise the employee to self-quarantine, however, the employer is only required to pay wages for the time the employee was unable to work because he or she was taking affirmative steps to obtain a diagnosis. An employee’s decision to self-quarantine does not entitle the employee to take an EPSLA leave unless the self-quarantine was ordered by a doctor.

Government quarantine

The DOL has broadly interpreted quarantine and isolation orders to include “stay at home” orders, “shelter in place” orders, and other government directives that advise some or all citizens to stay home or that restrict their mobility. If such an order prevents an emloyee from working or teleworking, the employee is eligible for a paid EPSLA leave.

Caring for quarantined or self-quarantined person

Employees are entitled to take a paid sick leave to care for another person who is quarantined or self-quarantined, but only if that person has the kind of relationship to the employee that creates an expectation that the employee would care for the person. Examples include immediate family members, roommates, and other people in a similar relationship with the employee.

School closing or unavailable childcare provider

According to the DOL, an employee “may take paid sick leave to care for his or her child only when the employee needs to, and actually is, caring for his or her child. Generally, an employee does not need to take such leave if another suitable individual — such as a co-parent, co-guardian, or the usual child care provider — is available to provide the care the employee’s child needs.” Since the DOL does not suggest that employers are in a position to second-guess an employee’s determination that no other “suitable individual” is available to provide childcare needs, employers will generally need to accept an employee’s representation that they are unable to locate an alternative childcare provider.

Duration of Paid Sick Leave

The entitlement to EPSLA leave ends when the need for the leave ends or when two weeks of leave have been taken, whichever occurs first. For full-time employees, two weeks of EPLSA leave means 80 hours of leave.

For example, if an employee is self-quarantined for more than two weeks because the employee’s doctor determines that the employee is still infected, only two weeks of EPSLA leave are required. As we discuss below, whether an employee might be entitled to additional unpaid leave under the Family and Medical Leave Act depends on the circumstances.

However, if an employee takes an EPSLA leave for childcare because of a school closing or the unavailability of a childcare provider, the employee may be eligible to take a concurrent childcare leave that will continue paid leave benefits after the EPSLA leave ends. That EFMLEA leave is described below.

Intermittent Leave

The required sick leave is a continuous leave. The DOL rules provide that an employee may not take an EPSLA leave intermittently without the employer’s approval. Nor may an employer require an employee to take an EPSLA leave intermittently without the employee’s approval.

In addition, the rules prohibit an employer from agreeing to an intermittent leave for someone who has been self-quarantined or who is ill with symptoms caused or related to COVID-19. The DOL’s purpose in prohibiting intermittent leave is to contain the spread of COVID-19 by potentially infected employees who intermittently report to work.

Exception for Employees Who Are Permitted to Telework

An employee who is offered an opportunity to work from home (“telework”) and is capable of doing so is not eligible for an EPSLA leave during those times that the employee could have earned wages by teleworking. An employee who is too sick to work from home and is suffering from COVID-19 symptoms is eligible for paid sick leave even if the employee has been offered, but cannot perform, telework.

A telework opportunity will only make an employee ineligible for an EPSLA leave if the employee is allowed to do the same amount of work at home that the employee would do at the work location. An employee who teleworks must be paid for all hours of work that the employer knows or should know about, just as if the employee is working at his or her usual work location.

Under other circumstances, federal law requires employers to pay at least minimum wag for all hours between the first and last tasks that a teleworking employee performs in a workday. When an employee is working from home due to COVID-19, however, the DOL rules encourage employers to give employees flexibility that the “continuous work” rule might not provide.

For example, an employee may need to work for two hours and then devote an hour to childcare before returning to work. An ordinary 8-hour workday might be legthened to 12 intermittent hours of work to accommodate caregiving responsibilities. For that reason, an employer that permits teleworking employees to work on a flexible schedule because of COVID-19 need only pay the employee for hours actually worked.

Exception for Healthcare Workers

Employers have the option to exempt healthcare workers and first responders from coverage. The DOL has broadly defined “healthcare workers” to include “anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution.”

Layoffs and Furloughs

An EPSLA leave is available to employees who would be working if one of the five qualifying events described above had not occurred. If an employee is laid off or furloughed because the employer has no work for the employee, the employee is not eligible for a paid leave. Instead, the employee should apply for unemployment compensation.

If an employee is laid off or furloughed after an EPSLA leave begins, the same rule applies. An EPSLA leave is available only as long as the employee would otherwise be working. The leave ends when the employee is laid off. At that point, employees should rely on unemployment compenstation.

As we discuss below, however, an employer cannot retaliate against an employee for taking an EPSLA leave. If the employer would have allowed the employee to keep working if the employee had not taken an EPSLA leave, laying the employee off to avoid paying for an EPSLA leave is unlawful.

Replacement Employees

A covered employee must provide an EPSLA leave to eligible employees, whether or not another employee is available to replace the employee taking the leave. Employers may not condition an EPSLA leave on the requirement that an employee swap shifts or otherwise find a replacement worker for missed workdays.

Wages Payable During an EPSLA Leave

Employers must pay an employee’s regular wages for up to 80 hours, subject to a cap, while the employee is taking an EPSLA leave. The cap depends on the purpose for which the leave is taken.

If the employee takes a leave to obtain a diagnosis or treatment, or because of a qualifying quarantine or self-quarantine, an employer must pay the employee’s regular rate of pay, up to $511 per day. The total wages payable under those circumstances are capped at $5,110.

If the employee takes a leave to assist someone who is quarantined or self-quarantined due to COVID-19, or if the employee is staying home because of a school closing or an unavailable childcare provider, an employer must pay two-thirds of the employer’s regular rate of pay, up to $200 per day. The total wages payable under those circumstances are capped at $2,000.

The “regular rate” is the same rate of pay that is used to compute overtime. That is, it includes commissions and other payments in addition to an hourly wage. However, while overtime laws require the regular rate to be computed with regard to each workweek, the EPSLA requires an employer to compute the employee’s average regular rate over the previous six months.

Employees cannot carry over EPLSA leave into 2021. If they do not become eligible for the leave in 2020, they are not entitled to take it. If they quit before taking all or part of an EPSLA leave, they are not entitled to payment of any unpaid benefits.

Calculating Pay for Part-Time Workers

Part-time workers are covered by EPSLA. Generally, if part-time workers have a fixed schedule, or if a work schedule has been established before the leave commences, employers should pay for those hours that the employee was scheduled to work but misses during the two-week period after the leave starts.

If the schedule that the employee would have worked cannot be determined with certainty, employers should base the wage payment on the average number of hours the employee was scheduled to work over a two-week period during the previous six months. Employers should calculate the average number of hours the employee was scheduled to work during the previous six months and multiply that number by 14 to determine the average number of hours the employee worked in a two-week period.

If the employee worked more than the scheduled number of hours, the actual hours worked should be used to make the calculation. Overtime hours are accordingly treated as “scheduled” hours even if they were not scheduled in advance. On the other hand, employers may not deduct days that were not worked because of a leave or vacation in order to reduce the number of “scheduled” hours.

If a part-time employee has worked less than six months, the calculation should be based on the average number of hours the employee reasonably expected to work in a two-week period. That expectation will usually be based on the work schedule the employer told the employee to expect at the time of hiring. If the employer did not tell the employee that he or she could expect to work a certain number of hours, the actual number of hours the employee was scheduled to work from the commencement of employment through the last work day before the leave begins is used to calculate the average.

Requiring Employees to Give Notice

Employers cannot require an employee to give advance notice of their need for a first day of EPSLA leave if the leave was taken for any reason other than childcare. After the employee begins a leave, employees can be required to give notice of their need for continuing leave within a reasonable time after the leave begins.

What is reasonable will depend on the circumstances. For example, an employee who is ill may need longer to give notice than an employee who has learned that a childcare provider is no longer available.

An employer may ask an employee to provide reasonable advance notice of a leave for childcare if the need for that leave is foreseeable. The need for a leave is foreseeable when the employee learns in advance that a care provider will not be available. However, an employer may not require employees to provide notice until the first workday after the first day of leave is taken.

Employers can also ask an employee to provide information to determine whether the employee qualifies for the leave. That information is limited to:

  • the employee’s name;
  • the date(s) for which leave is requested;
  • the qualifying reason for the leave;
  • the employee’s statement that the employee is unable to work for that reason;
  • if the leave is pursuant to a quarantine order, the name of the government (e.g., State of Florida) that issued the order;
  • if the leave is pursuant to a self-quarantine, the name of the healthcare provider who ordered the self-quarantine;
  • if the leave is for childcare, the name of each child for whom care is needed and the name of the school that closed or of the childcare provider that became unavailable.

An employer is also entitled to request infomration that the IRS requires as a condition of giving the employer a tax credit for the leave. No other information can be requested.

If an employee fails to give notice that the employer regards as reasonable, DOL rules require the employer to notify the employee of that failure and to give the employee an opportunity to provide the required information prior to denying the request for leave.

Relationship to Other Paid Leave

Covered employers who provide their employees with paid sick leave, paid vacation, or other paid leave cannot require an employee to substitute any other leave benefit for an EPSLA leave. Employers cannot change their leave policies by requiring employees to use an EPSLA leave instead of existing paid sick leave. Nor can employers require employees to use existing paid sick leave before taking an EPSLA leave.

Group Health Insurance

Employers who provide group health insurance to employees must continue the coverage of any covered employee while the employee is taking an EPSLA leave.

Reinstatement and Retaliation

When an EPSLA leave ends, employers are generally required to reinstate the employee to his or her former position or to a position that has equivalent duties and pay. While reinstatement is not required if the position no longer exists — for instance, if all employees have been terminated and the business has shut down — an employer cannot eliminate the employee’s position simply to avoid EPSLA’s reinstatement requirement.

An employee who is laid off during a leave need not be reinstated until the layoff ends. When an employer does not reinstate an employee, it is the employer’s burden to demonstrate that the employee would have been laid off even if he or she had not taken leave.

The law also prohibits retaliation against an employee for taking or requesting an EPSLA leave. Retaliation includes terminating, laying off, demoting, or disciplining the employee, but it also includes taking any action that would discourage reasonable employees from taking a leave.

Penalties for Noncompliance

The failure to pay EPSLA leave wages can subject an employer to an award of back pay. Unless the failure occurred despite an employer’s good faith attempt to comply with the law, that award can be doubled. Most failures to pay required wages are deemed to be in bad faith unless the employer acted pursuant to legal advice or guidance from the DOL.

Retaliation or a failure to reinstate can subject an employer to an award of back pay, an order to reinstate the employee (or an award of lost future pay), a penalty that equals the award of lost pay, and an award of compensatory damages (including emotional distress).

An employee who brings a successful claim for unpaid EPSLA wages, for a failure to reinstate, or for retaliation can also obtain an award of the cost of bringing the claim, including attorney’s fees. Noncompliance with EPSLA can therefore be costly to employers.

Poster Requirement

Covered employers are required to post information about the EPSLA in each workplace. An approved poster is available for download on the Department of Labor website.

Wage Reimbursement

Employers will be reimbursed for all payments required by EPSLA, but not for any additional payments that the employer makes voluntarily. For example, if an employee takes an EPSLA childcare leave and the employer pays a full wage of $250 per day, the employer will only receive reimbursement of $200 per day, because that is all EPSLA required the employer to pay. Since EPSLA is not retroactive, any paid leave provided prior to its effective date will not be reimbursed.

Reimbursement will be made in the form of a credit against quarterly payroll taxes. Paid leave required by EPSLA is not considered as wage payments that are subject to payroll withholding or to FICA taxes.

Paid Childcare Leave

The Families First Coronavirus Response Act also included a new law that temporarily expands the Family and Medical Leave Act (FMLA). That law, known as the Emergency Family and Medical Leave Expansion Act (EFMLEA), requires employers with fewer than 500 employees to provide paid leave when parents need to stay home with their children due school closings and unavailable childcare providers because of COVID-19.

Covered Employers

The above discussion of “Covered Employers” regarding paid sick leave also applies to EFMLEA. That represents a change from the FMLA, which does not apply to employers that have fewer than 50 employees.

Eligible Employees

Unlike EPSLA, employees are eligible for an EFMLEA leave only if they have been employed (i.e., on the employer’s payroll) for at least 30 calendar days prior to taking the leave. The minimum hours of employment that are required for FMLA leave eligiblity do not apply to an EFMLEA leave.

An employee who was laid off or discharged on or after March 1, 2020 will be deemed eligible if the employee:

  • was employed for at least 30 of the 60 days prior to being discharged or laid off, and
  • the employee is reinstated or reemployed by the same employer before December 31, 2020.

Under the DOL rules, the same healthcare workers who can be excluded from EPSLA benefits (as described above) can also be excluded from EFMLEA benefits.

Layoffs and Furloughs

An employee who has been laid off for business reasons that are unrelated to the employee’s decision to take a childcare leave is not eligible for the leave while the layoff continues. An EFMLEA leave is only available to employees who would be working if they did not need to take a leave.

The burden is on the employer to demonstrate that the employee would have been laid off even if he or she had not taken leave.The rules governing “Layoffs and Furloughs” for the ESPLA, described above, also govern the EFMLEA.

Purpose and Duration of Leave

Existing law requires employers to provide eligible employees with a leave of up to 12 weeks for certain purposes discussed in the FMLA section of this article. The EFMLEA expands that law to require employers to provide paid leave to employees who cannot “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” because of the COVID-19 emergency.

For the purpose of the EFMLEA (but not the EPSLA), the term “child care provider” refers to a person or business that regularly provides childcare for compensation.

Note that the 12 weeks of paid childcare leave is not in addition to the 12 weeks of unpaid FMLA leave. If an employee has already taken FMLA leave during 2020, the weeks of FMLA leave already used are subtracted from the 12 weeks of paid EFMLEA leave that are available. However, the employee will still be eligible to take two weeks of EPSLA leave for childcare if no EFMLEA leave is available.

When employers define the 12-month period during which an FMLA leave can be taken as something other than a calendar year, it is possible that one period will end and the next will begin during the period of EFMLEA eligiblity (April 1 to December 31, 2020). Even if that is true, an employee is not eligible for more than 12 weeks of paid EFMLEA leave. Employees are not entitled to an extra EFMLEA leave based on the employer’s definition of the 12-month period during which employees may take FMLA leave.

Employees who are allowed to work from home with no loss of wages or hours are not eligible for EFMLEA leave during the times when they are capable of working. The “telework” rules described above with regard to the EPSLA also apply to the EFMLEA.

Intermittent Leave

An intermittent leave is one that is taken in increments. The DOL rules provide that an employee may not take an EPSLA leave intermittently without the employer’s approval. Nor may an employer require an employee to take an EPSLA leave intermittently without the employee’s approval.

For example, if childcare is available to an employee every other week, an employee who is allowed to take an intermittent leave could take leave during the weeks when childcare is unavailable while returning to work during the weeks when childcare is available. When intermittent leave is granted, only the time taken as leave is counted against the 12 weeks of leave that the employee is eligible to take.

Wage Payments

Employers are not required to pay wages for the first two weeks of an EFMLEA leave. Employees may substitute other applicable paid leave, including an EPSLA leave, for the unpaid first two weeks of the EFMLEA leave. However, employers may not require employees to do so.

Employees must be paid two-thirds of their regular wages for the remaining ten weeks of an EFMLEA leave. However, mandatory wage payments are capped at $200 per day, for a total of $10,000. An employee whose regular wages equal or exceed $200 a day, who takes the full 12-week leave, and who takes a concurrent EPLSA leave during the first two weeks would receive continuous income totalling $12,000 for the combined leaves.

Relationship to Other Paid Leave

As noted above, an employee may elect to substitute other applicable employer-provided leave for the two unpaid weeks of EFMLEA leave. However, employers cannot require an employee to substitute other paid leave time for any portion of an EFMLEA leave.

For example, an employee who used two weeks of EPSLA leave to self-quarantine would have no EPSLA leave remaining to assure wage continuation during the first two weeks of an EFMLEA leave. That employee could use paid vacation or paid time off, if any is available, during the first two weeks of an EFMLEA leave. Wages would then be paid as required by that benefit. If an employer gives employees two weeks of paid vacation at regular wages, the employee could elect to apply those benefits to the first two weeks of an EFMLEA leave. The employee would receive regular wages for two weeks and two-thirds of regular wages for the remaining weeks of an EFMLEA leave.

An employer and employee may agree to use part of paid leave to make up the difference between regular pay and the two-thirds of regular pay that the EFMLEA requires. The employer would pay full wages while subtracting an amount of employer-provided paid leave that would correspond to the extra one-third wages the employee would receive. In the absence of an agreement, neither the employer nor the employee can demand that other paid leave be used to make up the difference between full pay and the pay required by the EFMLEA.

Group Health Insurance

Employers who provide group health insurance to employees must continue the coverage of any covered employee while the employee is taking an EMFLEA leave.

Notice Requirements

The FMLA imposes certain notice requirements on employees that do not apply to EFMLEA leaves. The “Notice Requirements” discussed above with regard to an EPSLA leave also apply (and are the only notice requirements that apply) to an EFMLEA leave.

Reinstatement to Job

The FMLA generally requires employers to restore employees to their former positions when a leave ends. That requirement also applies to EFMLEA leaves, with one modification.

If an employer has fewer than 25 employees, it will not be required to restore an employee to a position that was eliminated due to economic conditions. If the position was actually eliminated, the employer must make reasonable efforts to place the employee in an equivalent position, if one exists. If there is no vacant equivalent position, the employer must notify the employee when his or her position, or an equivalent position, becomes available. That notification requirement continues for one year after the employee takes a leave.

Employers cannot pretend to eliminate a position for the purpose of discharging an employee who took an EFMLEA leave, and then hire someone new for a newly created position with the same or equivalent duties. That action would be deemed a violation of EFMLEA.

Retaliation

Employers are prohibited from retaliating against employees because they request or take an EFMLEA leave, or because they participate in a legal proceeding related to a claimed violation of the EFMLEA. Retaliation includes terminating, demoting, or disciplining the employee, but it also includes taking any action that would discourage reasonable employees from taking a leave.

Remedies are available to employees who are eligible for but are denied a paid leave, to employees who are entitled to be restored to their positions but are denied reinstatement, and to employees who experience retaliation. Those remedies may include an award of lost pay and out-of-pocket expenses caused by the employer’s unlawful conduct, an order to reinstate the employee (or an award of lost future pay), a penalty that equals the award of lost pay, and an award of compensatory damages (including emotional distress).

Failing to comply with the EFMLEA can be costly. Employers can protect their businesses by seeking legal advice before terminating an employee who is eligible for an EFMLEA leave, eliminating a position after an employee takes an EFMLEA leave, or denying an EFMLEA leave.

Poster Requirement

The same poster that describes an EPSLA leave also describes an EFMLEA leave. Covered employers must display that poster in a conspicuous location in the workplace.

Wage Reimbursement

The wage reimbursement provisions that apply to the EPSLA also apply to the EFMLEA.

Complying with Other Employment Laws

A number of other laws protect the rights of employees. As difficult as it may be to make payroll, difficult economic times do not excuse a failure to comply with employment laws.

Laws Affecting Terminations and Layoffs

Businesses that are temporarily closing their doors may decide to lay off their employees until they can reopen. Businesses that anticipate a downturn might decide to reduce the size of their workforce.

A business can fire or lay off an employee-at-will (one who does not have an employment contract, including a collective bargaining agreement) for any reason or for no reason, as long as the reason is not unlawful. Laws that prohibit discrimination can make a termination or layoff unlawful if employees are treated unfavorably because they belong to a protected class.

Federal laws against discrimination protect employees because of their race, color, national origin, ancestry, sex, pregnancy, religion, age (if 40+), or disability. “Sex” is generally understood to include sexual orientation. Florida law additionally protects against discrimination because of marital status, sickle cell trait, or a diagnosis of HIV/AIDS.

The best way to avoid an accusation of discrimination is to treat all similarly situated employees equally. For example, a decision to lay off all production employees is not discriminatory. If only some production employees need to be laid off, neutral criteria (such as seniority) should be used to select them.

While it is permissible to keep your best employees and to lay off or terminate employees who do not perform well, it is often difficult to assess job performance objectively. Employers may be inviting trouble if they treat employees in a protected class less favorably than other employees for reasons they cannot document.

When employers decide to discharge employees, they should remember that COBRA and other laws governing employee benefits remain in full effect.

Laws Affecting Compensation

Employers can reduce the pay of an employee-at-will in response to an economic downturn, but not with regard to hours that the employee has already worked. Employees must be notified in advance that their pay will be reduced so they can decide whether to continue working for less pay.

The need to reduce pay does not justify a decision to pay less than minimum wage. Nor does the fact that some employees are self-quarantined justify making other employees work overtime without paying overtime wages. The Fair Labor Standards Act requires all nonexempt employees who work more than 40 hours in a workweek to be paid time-and-a-half for all hours worked in excess of 40.

Laws Affecting Leave

The FMLA remains in effect for employers who are covered by it. Except for the expansion of the FMLA — the EFMLEA described above — the FMLA applies to all employers that employ 50 or more employees. Unlike the EFMLEA, the FMLA is not limited to employers that have fewer than 500 employees. The fact that the leave will cause a hardship during times of economic distress does not justify a failure to provide the leave.

The FMLA provides for leave of up to 12 weeks. Any time taken for a paid EFMLEA leave is subtracted from the time available to take an unpaid FMLA leave during the calendar year. An employee who takes an EFMLEA leave for 5 weeks will therefore not be eligible to take an FMLA leave of more than 7 weeks. Employers are free, however, to provide more paid or unpaid leave time on a voluntary basis.

The FMLA requires covered employers to offer certain leaves to an employee if:

  • the employer has 50 employees working within 75 miles of the employee’s work location; and
  • the employee has worked for at least 1,250 hours and for at least one year before a requested leave will begin.

An unpaid FMLA leave of up to 12 weeks must be provided to an eligible employee who is:

  • unable to work because of a serious health condition;
  • caring for the employee’s spouse, child, or parent who has a serious health condition; or
  • bonding with a newborn, adopted, or foster child.

A serious health condition exists when:

  • the employee is unable to work for at least 3 consecutive days because of the condition;
  • the employee receives medical treatment within the first 7 days after missing work; and
  • the employee is hospitalized or receives continuing care (meaning either a second treatment visit with a doctor within 30 days after the leave begins or a regime of supervised care imposed by the doctor during the first visit).

A COVID-19 infection may or may not be a serious health condition. If a doctor has self-quarantined an employee who needs no other treatment, that employee would be eligible for paid sick leave under EPSLA but not for an FMLA leave. If an employee’s COVID-19 infection requires the kind of continuing care that is described above, the employee will probably be eligible for an FMLA leave.

While employers may require notice to be given 30 days in advance of a requested leave that can be reasonably anticipated, that notice requirement does not apply to leaves taken for a reason that an employee cannot reasonably foresee. Since employees do not know in advance whether they will get a COVID-19 infection, infected employees usually cannot be expected to give advance notice.

Employees can be required to give such notice as is reasonable under the circumstances when they learn of the need for a leave. For example, if an employee makes an emergency visit to the hospital, the employee cannot be expected to notify an employer while undergoing emergency treatment. After being admitted to the hospital, an employee whose condition permits the employee to notify an employer can be required to do so at that time. Since denying a FMLA leave because of inadequate notice can subject an employer to liability if the denial is improper, employers should seek legal advice before they act.

Like the EFMLEA leave described above, an employer must usually restore an employee to a former position after the leave ends. And like the EFMLEA leave, an employer can face serious consequences for retaliation, improperly denying a leave, or failing to reinstate the employee.

Laws Affecting Disabled Employees

The Americans with Disabilities Act (ADA) requires employers to accommodate employees who have disabilities. Employers must provide reasonable accommodations that will enable their disabled employees to perform their essential job duties if the accommodations can be provided without undue hardship.

Whether the ADA applies to an employee who is infected with COVID-19 depends on the circumstances. A relatively short-term disease does not usually meet the definition of a disability. However, COVID-19 can cause lung damage and other long-term respiratory problems, so an employee who has recovered from the infection might be left with a disabling condition that requires accommodation.

In addition, an employer cannot discriminate against employees because the employer regards them as being disabled, whether or not they have a disability. If an employee recovers from COVID-19 but an employer refuses to return the employee to work because the employer regards the employee as suffering from a long-term respiratory disease, the employer might be liable for disability discrimination.

Appropriate accommodations might include an unpaid leave (even if one is not required by a leave law) or an arrangement that allows the employee to work from home. Whether a specific accommodation is appropriate must usually be determined in consultation with the employee, assuming that any accommodation is required. To avoid liability, it is generally wise to seek legal advice before refusing an employee’s request for a disability accommodation.

 

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