Two New Laws Protect Employment Rights During the COVID-19 Pandemic

The COVID-19 pandemic is causing massive disruptions in the workplace. Businesses are firing or laying off their employees. Workers are staying home in compliance with doctors’ orders. Others are staying home because schools are closed and they can’t find daycare.

Several federal and state laws protect the rights of workers. None of those laws have been suspended, but they do not always provide relief to employees whose jobs are affected by the pandemic.

This article examines two new laws that protect the rights of certain employees who need to stay home from work. Both laws take effect on April 2, 2020. The laws aren’t perfect, but they do provide protections that will allow some affected employees to retain their jobs and maintain their income.

Paid Sick Leave

Congress enacted the Emergency Paid Sick Leave Act (EPSLA) as part of the Families First Coronavirus Response Act. The law requires some employers to provide paid sick leave to employees who cannot work because of the COVID-19 virus.

What employers are covered?

Most federal, state, and local government agencies must comply with the law. Private employers are covered if they have fewer than 500 employees. About half of all employees will not benefit from EPSLA because they work for large employers.

The law allows the Department of Labor to exempt certain businesses with fewer than 50 employees if providing paid sick leave “would jeopardize the viability of the business as a going concern.” At this point, it is not clear how many small businesses will be exempted by Department of Labor regulations.

The Department of Labor is also authorized to allow employers of healthcare workers and first responders to exempt those employee from coverage. The Department of Labor has not yet defined “healthcare worker” for the purpose of EPSLA, so it is not clear whether, for example, a company that provides home health aides will need to comply with the law.

What employees are covered?

All employees, whether full-time or part-time, are covered by the EPSLA if they work for a covered business.  The law does not require employees to have worked for a particular length of time to benefit from coverage.

When is an employee entitled to a paid leave?

Employees are entitled to take a paid EPSLA leave when they are:

• seeking a diagnosis because they are experiencing COVID-19 symptoms;
• staying at home (self-quarantined) pursuant to a physician’s orders;
• staying at home pursuant to a government-issued quarantine or isolation order;
• caring for an individual who is quarantined by government order or self-quarantined by a doctor’s order; or
• caring for the employee’s child because of a school closing or the unavailability of a childcare provider due to COVID-19 precautions.

Hospitalization for treatment presumably qualifies as a physician-imposed quarantine.

How much leave is available?

Employers must offer a paid EPSLA leave to full-time employees for a maximum of 80 hours.

Part-time employees are entitled to leave for the number of house they would have been scheduled to work over a two-week period. If that number cannot be calculated with certainty, the calculation should be based on the average number of hours the employee was scheduled to work during the previous six months of employment.

When the need for a leave ends, so does entitlement to the leave. Employees are not entitled to continue receiving paid EPSLA benefits that they no longer need.

All EPSLA benefits will end when the law expires at the end of 2020. Benefits will not carry over into 2021.

What benefits must be paid?

The benefits an employer must pay for an EPSLA leave depend on the reason for which the leave is taken.

Employees who are self-quarantined, quarantined, or seeking a diagnosis are entitled to their full daily wage, up to a maximum of $511 per day. The maximum required payment for the entire leave is $5,110.

Employees who need to stay home to care for a quarantined person or for children because a school or daycare provider is closed are entitled to their full daily wage, up to a maximum of $200 per day. The maximum required payment for a leave taken entirely for those purposes is $2,000.

Can an employee be required to use other paid leave first?

No. Employers may not require an employee to use vacation pay or other employer-provided paid leave prior to taking an EPSLA leave.

Can an employer require an employee to arrange for shift coverage?

No. An employee’s right to take an EPSLA leave cannot be conditioned on finding a replacement employee to cover a shift or work in place of the employee taking the leave.

Can employees be required to give notice of their need for an EPSLA leave?

Employees can take a first day of paid leave without giving notice. An employer can require an employee to give notice of his or her need for continuing leave after taking the first day of paid leave.

Can an employee be fired or penalized for taking an EPSLA leave?

Employers may not retaliate against an employee for:

• taking a leave authorized by EPSLA; or
• bringing a complaint or testifying in a proceeding concerning a violation of the EPSLA.

Prohibited relation includes:

• refusing to reinstate an employee who has taken a qualified EPSLA leave and is not currently infected;
• firing an employee for taking or requesting an EPSLA leave; and
• discriminating against the employee in any other way (for example, demotion, wage reduction, reassignment to more difficult work, or harassment) because the employee exercised rights provided by EPSLA.

While EPSLA does not prohibit layoffs or the termination of employment for legitimate reasons while employees are taking a paid sick leave, employers may not invent an excuse to fire an employee because the employee took an EPSLA leave.

What remedies does EPSLA give to employees if their employers disobey the law?

Although the government will eventually reimburse employers by providing tax credits for sick leave wages that EPSLA requires them to pay, it is the employer’s obligation to pay those wages on an employee’s regular payday.

Employees who do not receive the sick leave pay required by EPSLA have the same remedies that are available under federal law to an employee who is not paid minimum wage. Those remedies include an award of:

• unpaid sick leave wages;
• an additional amount equal to unpaid wages if the failure to pay was willful; and
• attorney’s fees for bringing a successful claim.

Employees who are the victims of retaliation are entitled to seek:

• reinstatement to their jobs (if they were fired or unlawfully refused reinstatement);
• lost pay caused by the retaliation;
• other out-of-pocket losses caused by the retaliation;
• damages for emotional distress; and
• attorney’s fees for bringing a successful claim.

In some cases, an employee might receive an award representing a loss of future pay in lieu of reinstatement.

Does EPSLA apply to self-employed workers?

For the most part, EPSLA imposes wage payment obligations on employers. However, EPSLA gives self-employed workers, including members of the gig economy, a tax credit if they lose income from work for any of the reasons that would allow an employee to take an EPSLA leave.

The tax credit is 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. The credit is limited to $2,000. If the credit is larger than taxes owed during the tax year, the difference will be refunded to the worker.

Paid Family Leave for Childcare

While EPSLA allows a parent to be paid for 80 hours of missed work if the parent must stay home because of a school or daycare center closing that is related to COVID-19, many parents will be forced to stay home for longer than two weeks. In those cases, parents may be entitled to receive paid leave pursuant to the newly enacted Emergency Family and Medical Leave Expansion Act (EFMLEA).

What is the Family and Medical Leave Act?

The Family and Medical Leave Act (FMLA) is a federal law that allows eligible employees to take up to 12 weeks of unpaid leave to:

• treat a serious health condition;
• care for a spouse, child, or parent who has a serious health condition; or
• bond with a newborn or adopted child.

The FMLA generally protects the right of employees who take a leave to be returned to their jobs when the leave ends.

The FMLA applies only to employers that have 50 or more employees. In addition, employees are only eligible for leave if the employer has 50 or more employees within 75 miles of the employee’s work location.

How did Congress expand the FMLA?

The EFMLEA adds a new reason for which employees may take a job-protected leave. Under the EFMLEA, an employee is eligible for an EFMLEA leave if the 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” because of the COVID-19 emergency.

For purposes of the EFMLEA, a “child care provider” is limited to a person or business that regularly provides childcare for compensation. The requirement that the childcare provider must be compensated does not appear in the EPSLA.

In most respects, an EFMLEA leave is similar to an FMLA leave. The leave can last up to 12 weeks if the reason for the leave persists during the full 12-week period. However, there are also important differences between an FMLA leave and an EFMLEA leave. One key difference is that the EFMLEA leave is a paid leave.

What pay can an employee receive while taking an EFMLEA leave?

The first 10 days of an EFMLEA leave are unpaid. Employees are permitted to substitute paid leave (such as paid sick leave under the EPSLA or vacation pay) for the unpaid leave, but an employer cannot require them to do so.

After 10 days, employers must pay employees two-thirds of their regular rate of pay for the hours they would have been scheduled to work, up to a maximum of $200 per day. If scheduled hours vary and cannot be determined with certainty, pay is based on an average number of hours the employee worked during the previous six months.

Employers are not required to pay more than $10,000 for paid EFMLEA leave. Based on a 40-hour week, employees will be able to receive EPSLA pay for 2 weeks and EFMLEA pay for another 10 weeks, giving them a total of 12 weeks of paid childcare leave.

However, employees can only take that leave as long as they are eligible for it. If school resumes or a childcare provider becomes available, the right to paid leave ends. In addition, the EFMLEA expires on December 31, 2020. No mandatory paid leave will be available after that date.

Are all employers required to provide paid EFMLEA leave?

Only employers that have fewer than 500 employees must provide paid EFMLEA leave. The FMLA’s limitation of coverage to employers that have 50 or more employees does not apply to the EFMLEA.

However, as is true of the EPSLA, the Department of Labor has the authority to exempt employers that have fewer than 50 employees if providing the leave would jeopardize their business. In addition, employers are not required to give paid EFMLEA leave to healthcare providers or emergency responders.

Must employees give notice to their employers of the need for an EFMLEA leave?

Notice requirements of the FMLA do not apply to an EFMLEA leave. Instead, employees must provide as much notice as is practicable if the need for an EFMLEA leave can be foreseen. In many cases, parents have no advance notice of a school or daycare closing and are unable to foresee the need for an EFMLEA leave. To protect their eligibility, employees should notify employers of their need to stay home as soon as they learn that a school has closed or a childcare provider has become unavailable.

Must employees be returned to work after the leave ends? 

The FMLA generally requires employers to restore employees to their former positions after an FMLA leave ends. That rule applies to employers who are required to provide an EFMLEA leave unless the employer has fewer than 25 employees.

If an employer has fewer than 25 employees, the employer is not required to restore an employee to a position that it has eliminated because of economic conditions. In that event, the employer must make reasonable efforts to place the employee in an equivalent position. If no equivalent position exists, the employer must notify the employee if one becomes available within one year of the date of the date the employee became eligible for an EFMLEA leave.

May an employer fire an employee because the employee asks for an EFMLEA leave?

The FMLA provides protections to employees who are fired because they ask for an FMLA leave. The FMLA also provides remedies when an employer improperly denies a leave. Those protections and remedies apply equally to an EFMLEA leave.

In addition, the FMLA provides remedies when an employer fails to restore an employee to work after a leave ends. To the extent that the EFMLEA requires job restoration, those remedies apply to employees who are not permitted to return to work.

Remedies for retaliation, denial of leave, or a failure to restore an employee to work may include:

• lost pay;
• reinstatement to a former position or an award of lost future pay;
• in most cases, an additional amount that is equal to lost pay; and
• attorney’s fees for bringing a successful claim.

Employees who believe they were improperly denied a leave, who were not reinstated after taking a leave, or who were fired after requesting a leave may want to obtain legal advice. Since the time for making a claim is limited, they should discuss their situation with an employment lawyer right away.

The enactment of these laws is an emerging and developing situation for both employees and employers. Not every apparent violation of either law necessitates immediate litigation or retaining an attorney. There are many factors that one should consider before changing the landscape and getting an attorney involved. These laws were enacted within days after the scope of this pandemic became apparent. Most laws are written and re-written several times over months or even years of debate through the political process. No law is perfect, much less ones that are enacted in short order like these.

There are many employers that may ultimately go out of business or suspend operations. While that doesn’t help or change a worker’s financial situation who is not getting a paycheck, it is a reality that each worker may want to consider before deciding to pursue litigation.

Business owners should absolutely consult with legal counsel to determine how these laws apply to them. There are many considerations that business owners should factor during this uncertain time.

Should you need to discuss your particular situation with an employment attorney, Robert S. Norell, P.A. is here to help you.