Employment Attorneys Cover FFCRA Paid Leave and DOL Regs
Discussion covers paid sick leave during pandemic

by Avery Martinez

LawBank on April 3 hosted an informal discussion on the effect of COVID-19 on employment law, ADA guidance and other concerns hosted by employment law attorneys Susan Klopman and Laura Hazen of HK Law.

The two attorneys, who primarily represent private employers, discussed the Families First Coronavirus Response Act and what resources employers could turn to during the changing situation. They detailed the nuances of the law and advised other attorneys to study up on the ins and outs of the laws in order to  properly advise clients.

The act has two primary parts positions that affect employers with 500 or less employees, Klopman said. The figure of 500 was new for employment law, and the act itself doesn’t apply to “big” employers. She stressed the importance of determining whether a group of smaller affiliated employers are considered a single employer under the FFCRA — and don’t under the 500-employee cap —  or  separate employers with different EINs, since there are specific details that address those in the regulations.

The Emergency Paid Sick Leave Act is a first at the federal level, Klopman said, and employers should be mindful that it covers all employees during the crisis.

“Your employees do not need to have worked three days, 30 days, 1,250 hours — there’s no prior requirement for how long they’ve needed to have worked for you,” Klopman said. “They’re covered if they’re full-time or part-time.”

The provision requires employers to provide full-time employees up to 80 hours of paid sick leave at the employee’s regular rate of pay. For part-time employees, employers must provide sick leave according to how many regularly scheduled hours the employee would work in a two-week period. The intent is for every employee to be covered at any level, Klopman said. “The reason someone would get paid sick time is because the employee is unable to work, or the employee is unable to telework.”

The Department of Labor came out with temporary regulations that extend to Dec. 31, which state that the employee is unable to work or telework for six possible reasons:

  • They are subject to a local, state or federal quarantine or isolation order related to COVID-19;
  • They have been advised by a health care provider to self-quarantine;
  • They are experiencing COVID-19 symptoms and seeking medical diagnosis;
  • They are caring for someone who is subject to a quarantine or isolation order related to COVID-19, or advised to self-quarantine by a health care provider;
  • They are caring for a child whose school or place of care is closed, or if the childcare provider is unavailable for reasons related to COVID-19; or
  • They are experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in connection with the other agencies.

Klopman said some of those requirements can be broad. For instance, if a health care provider declares that a worker is particularly susceptible to COVID-19 and orders them to self-quarantine, they are covered by under the act, Klopman said. One of her clients had a similar situation about a pregnant employee, though there is no imminent threat of COVID-19.

Hazen said the act would likely cover those who have recently undergone treatment for cancer, have weakened immune systems because of asthma or diabetes, or who are pregnant.

“Now remember, they may be instructed to stay home for the foreseeable future, but they only get this leave for two weeks,” Hazen said. She added that she could see employees being eager to return to work after two weeks of leave, raising the need for caution that they are actually healthy enough to come back. “Well, you’re still pregnant, are you now going to get a doctor’s note that says it’s fine for you to be there?” Hazen believes that it is appropriate for an employer to request from an employee a return-to-work note from a physician clearing them for duty to address this situation.

In the situation that an employee displays COVID-19 symptoms, Klopman said the employee must actively seek a medical diagnosis. They cannot just decide they have a cough and stay home, she said.

Klopman also noted that the provision for employees caring for someone with COVID-19 applies to anyone in the home. Roommates are classified  in this category. However,  Klopman and Hazen did not believe that applies to someone who has been hospitalized, since the hospital would be caring for the person, and there are not currently any visitation abilities.

Klopman also warned the school and childcare provision would be common in many places around the state where such institutions are closed. This section was one that should be “drilled into more in any particular situation to really understand what both employee and employer obligations are,” she said. The DOL has said children over 18 with a disability or other condition that requires direct care are included, even if they are already covered by the FMLA.

Klopman noted this order outlined different rates of pay for employees, if an employee is taking paid sick leave, under the isolation order or seeking a medical diagnosis, then the employee receives “ full-pay, whatever your regular rate is or the applicable minimum wage, up to a cap” of $511 per day. This same idea of a cap can be spread out over the two-week period, allowing for an aggregate cap.

If employees take leave for other reasons, the pay is still provided at a lower rate than regular pay or minimum wage, which again is capped per day or by aggregate over a two-week period.

Many nuances are spelled out in the regulations, such as “if the employer has had to close down because of the governor’s order, and the place of business isn’t working and has no work, employees are not entitled to this paid sick leave even if they have COVID-19 or get a diagnosis” because there is no work, Klopman said.

Hazen said she saw a difference between where an employer has shut down and where they have put employees on unpaid leave. “So, if they’re continuing to be an employee, and they’re receiving health benefits, I read them as needing to provide leave in those circumstances or reduced everyone to a couple of hours.”

Klopman said she agreed with Hazen’s statement. And if the business closed down, and there was no work, then the employee should file for unemployment insurance, even if only for a two week period.

“It turns out the implementation of this is going to be very technical,” Klopman said. “For any of you who are going to be advising clients, you are going to need to have digested all 125 pages of the regulations.”