Employment Law Alert re: COVID-19 - Update
This brief alert follows up on our prior alert regarding the Families First Coronavirus Response Act. We noted in our prior alert that the U.S. Department of Labor would be releasing a poster regarding employee rights under the Act, and it since has done so. You can find a copy of the poster for private employers here: https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf.
Please note that the posting mandatory. The poster must be put up in a conspicuous place on the employer’s premises, although the posting requirement also may be satisfied by (among other things) emailing or direct mailing the poster to employees. We recommend posting the poster on premises (presuming that the employer’s premises are open at this time) and emailing a copy to employees who are working remotely or who are furloughed or otherwise not working at all. The poster does not need to be provided to employees who have been laid off or whose employment otherwise has been terminated. Please note in that regard that a furlough and a layoff are not the same thing – we have seen quite a bit of confusion over that point in the past few weeks.
You can find FAQs regarding the posting requirement here: https://www.dol.gov/agencies/whd/pandemic/ffcra-poster-questions. Employers with large premises that remain open should take particular note of the final two questions and answers.
The U.S. Department of Labor also has released new FAQs on the Act generally, found here: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions. We have received a number of questions regarding the potential exemption from the emergency family leave requirement (and one particular portion of the emergency paid sick time requirement), for businesses with fewer than 50 employees. As such, we found FAQ No. 4 to be interesting. It appears that qualifying for the exemption essentially will be on an “honor system,” subject to regulations that still are forthcoming. That said, the standard to be met for the exemption, from the text of the Act alone, is very high, and we don’t recommend treating it lightly, particularly given the significant danger of an employee complaint in light of the promotion of the new laws in the media.
Finally, in further follow up to our prior alert, we presume that readers are unavoidably aware of the recent “stay at home” orders put in place in New York and New Jersey. We are happy to address questions regarding employer operations in light of those orders.
Employment Law Alert re: COVID-19
Effective on April 2, 2020, the Families First Coronavirus Response Act (the “Act”) provides two different benefits for eligible employees: (1) emergency paid sick leave; and (2) emergency family leave. These provisions expire on December 31, 2020.
Please note that the cost of both paid sick leave and emergency family leave under the Act is to be reimbursed to the employer by way of certain tax credits. We are not addressing the specifics of the tax credits in this alert, but are happy to respond to any questions that you may have.
Emergency Paid Sick Leave:
Who is covered?
This portion of the Act generally applies to private employers with less than 500 employees, and to all employees regardless of length of service. However, an employer of a health care provider or an emergency responder may choose to exclude such an employee from using paid sick time under the Act.
When can paid sick time be used?
An employee must be provided with paid sick time if the employee is unable to work (or telework) due to any of the following:
1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.
2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
3. The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis.
4. The employee is caring for another individual as described in 1 or 2 above.
5. The employee is caring for the employee’s child because the child’s school or place of care has been closed, or the childcare provider of the child is unavailable, due to COVID-19 precautions.
6. The employee is experiencing any other condition substantially similar to the above, as determined by certain Federal agencies.
How much paid sick time must an employee be given, and how is it paid?
A full-time employee is eligible for up to 80 hours of paid sick time. A part-time employee is eligible for paid sick time in the number of hours that the employee works, on average, in a two-week period.
The government is to provide more guidance on calculating the value of paid sick time, but generally an hour of paid sick time will be paid at the employee’s regular rate of pay. However, there are certain caps. If an employee uses paid sick time for reasons 1, 2, or 3 above, the value of paid sick time is capped at $511 per day, or $5,110 in the aggregate. If an employee uses paid sick time for reasons 4, 5, or 6 above, the value of paid sick time is capped at two-thirds (2/3) of the employee’s regular pay, up to $200 per day or $2,000 in the aggregate.
What rules apply to the use of paid sick time?
Generally:
After the first day of work (or partial day of work) for which an employee receives paid sick time, the employer may require the employee to follow reasonable notice procedures in order to continue receiving paid sick time.
An employer cannot require an employee to use any other type of paid leave (such as paid vacation) before using paid sick time under the Act. Paid sick time under the Act is in addition to any other paid time off available by law or employer policy.
An employer cannot require an employee who uses paid sick time to find coverage or a replacement for the employee’s shift.
Paid sick time not used by December 31, 2020 is forfeited.
Is there anything else to know about paid sick time?
The above is a summary intended to be helpful and does not address each and every provision of the law. However, please note that the law does contain anti-retaliation provisions, and that there will be a posting requirement. Allegedly, the government will provide a model poster by March 25, 2020.
Emergency Family Leave:
Who is covered?
This portion of the Act also generally applies to private employers with less than 500 employees, although employers with less than 50 employees may seek an exemption if compliance would jeopardize the viability of the business. However, an employer would make the application under regulations that as of yet haven’t been released.
To be eligible for leave, an employee must have been employed for at least 30 days. However, an employer of a health care provider or an emergency responder may choose to exclude such an employee from taking leave.
When can an employee take emergency family leave, and for how long?
An eligible employee can take up to 12 weeks of leave if the employee is unable to work (or telework) due to a need for leave to care for the employee’s minor child, if the child’s school or place of care has been closed, or the child care provider of the child is unavailable, due to a COVID-19 related emergency declared by a Federal, State, or local authority.
What rules apply to the use of emergency family leave? Is the leave paid?
Generally:
If the need to use emergency family leave is foreseeable, an Employee must provide notice as soon as practicable.
The first 10 days of emergency family leave are unpaid. (However, paid sick time, as described above, may be applicable.)
In addition to sick time as described above, an employee may use any other paid leave available (such as paid vacation) to cover the 10 days of otherwise unpaid leave, but cannot be required to do so.
After the initial 10 days, the employer must pay the employee two-thirds (2/3) of their regular rate of pay for the number of hours they would otherwise be regularly scheduled to work, were they not on leave. (There is a formula for employees who have varying weekly schedules.) However, the pay is capped at $200 per day and $10,000 in the aggregate.
Generally, an employee who takes emergency family leave is entitled to be restored to the same or an equivalent position upon returning from leave. However, the employee is not entitled to job restoration if:
The employer has less than 25 employees;
The employee’s position no longer exists due to economic conditions or other changes in the employer’s operating conditions that (i) affect employment; and (ii) are caused by a COVID-19 related public health emergency;
The Employer makes reasonable efforts to restore the employee to an equivalent position (with equivalent benefits, pay, and other terms and conditions of employment); and
If the reasonable efforts fail, the employer makes reasonable efforts for one year to contact the employee if an equivalent position becomes available.
For New York Employers:
New York State has passed emergency legislation, effective immediately, guaranteeing job protection and certain paid sick time for an employee who is under a mandatory or precautionary quarantine order due to COVID-19. Although not entirely clear, it appears that these protections are in addition to the Federal protections described above, as well as local paid sick leave laws (such as the New York City Earned Safe and Sick Time Act).
You can find information, including helpful FAQs, here: https://www.governor.ny.gov/paid-sick-leave-covid-19-impacted-new-yorkers/emergency-covid-19-paid-sick-leave
A brief summary for employers is here: https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/COVID_Sick_Leave_Employers_3-18-20_1.pdf
Finally, Governor Cuomo has signed an executive order mandating that telecommuting and work from home procedures be utilized to the greatest extent possible, and that in any event most businesses reduce the in-person workforce at any work location by 75%. It is not clear how, and to what extent, this will be enforced.