COVID-19: Congress Mandates Paid Sick Leave and Family Leave for Employees Affected By the Coronavirus
On March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act (FFCRA). This law takes effect on April 2, 2020 and expires on December 31, 2020. It contains two provisions relating to paid sick leave and paid family leave that may impact small employers with fewer than 500 employees. This Client Alert will explain the law’s basic features.
1) What does the FFCRA do?
The law requires covered employers to provide paid sick leave and paid family leave to employees who are unable to work or telework because of COVID-19.
2) Who is covered by the FFCRA?
The law applies to employers with fewer than 500 employees. Healthcare providers and emergency responders are exempt.
3) Who is eligible for paid family leave?
Employees who have been employed for more than 30 days are eligible for paid family leave if they are unable to work because they must stay home to care for a child under the age of 18 whose school or daycare has closed due to COVIC-19.
4) How much family leave do employees receive and how much are they paid?
Employees receive 12 weeks family leave. The first 2 weeks are unpaid. Employees will then receive up to 10 weeks paid leave at two-thirds their regular rate of pay capped at $200 per day and $10,000 total.
5) Who is eligible for paid sick leave?
All employees who are unable to work (regardless of hire date) for one of the following reasons:
(1) The employee is subject to a government quarantine or isolation order related to COVID-19;
(2) The employee has been advised by a healthcare provider to self-quarantine due to COVID-19;
(3) The employee has symptoms of COVID-19 and is seeking a medical diagnosis;
(4) The employee is caring for an individual subject to either (1) or (2) above;
(5) The employee needs to care for a child whose school or place of care is closed or whose childcare provider is unavailable due to COVID-19; or
(6) The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.
6) How much sick leave do employees receive?
Employees may receive up to 80 hours of paid sick leave for full-time employees. Part-time employees receive their average hours over two weeks. Thus, a part-time employee who works 15 hours a week would receive up to 30 hours of sick leave.
7) How much must employers pay?
The amount of the sick leave benefit depends upon the reason for an employee’s absence. For reason numbers 1, 2 and 3 (see Question No. 5 above), the employee receives full pay up to $511 per day and $5,110 in total. For reason numbers 4, 5, and 6, the employee receives two-thirds of their full pay up to the $200 per day and $2,000 in total.
8) Can Employers require employees to use their paid time off in lieu of paid family and sick leave?
No. Employers are prohibited from requiring employees to exhaust their paid time off. However, employees have the option of voluntarily using their paid time off. This might occur if the employee’s regular pay is greater than the paid sick or family leave benefit under the FFCRA.
9) Are there job protection provisions similar to those in the FMLA?
Yes. The law offers the same job protection offered by FMLA. The employee must be restored to the same or equivalent position upon returning from leave. However, there is an exception for employers with fewer than 25 employees if the employee’s job is no longer available due to the economic conditions caused by COVID-19.
10) Will employers be reimbursed for making sick and leave payments?
Basically yes. Employers will receive a 100% tax credit against the employer’s portion of the social security tax.
At Morrow & Meyer, LLC, we are available to assist employers with the challenges associated with the COVID-19 virus. If you have any questions, about the FFCRA, please contact: Tod T. Morrow: Tmorrow@morrowmeyer.com or Susan Chae: Schae@morrowmeyer.com
The Coronavirus and OSHA Compliance: What You Need to Know
In normal times, employers face innumerable uncertainties and catch-22 pitfalls when trying to comply with OSHA and other employment laws. The outbreak of the coronavirus (“COVID‑19”) has made those challenges even greater. This Client Alert will attempt to answer some of your questions about COVID-19 and OSHA compliance
1) Is COVID-19 a recordable or reportable incident to OSHA?
Possibly yes. If an employer is required to maintain injury and illness records (some smaller and low hazard businesses may be exempt), and it appears that the work environment was the likely cause of the employee contracting COVID-19, then the illness will be recordable if the illness requires: medical treatment; restricted duty; or time off work. If the infected employee dies or is hospitalized as a result of contracting COVID-19 from the work environment, then the employer must report the fatality within eight hours and the hospitalization within 24 hours.
In most cases, an employer will not be able to determine the source by which an employee became infected. Essentially, the question employers should ask is whether it is more likely than not that the employee contracted COVID-19 while working. At this time, it appears that most recordability and reportability will be limited to the healthcare, nursing home and assisted living industries where employees may be directly involved in the care and treatment of infected patients or residents.
2) Can employers be sued by their employees for failing to protect them from COVID‑19?
No. Unless an Ohio employer intentionally seeks to harm its employees, employers are granted immunity from such lawsuits through their workers’ compensation coverage.
3) Can an employer be cited by OSHA for failing to protect its employees from exposure to COVID‑19?
Yes, though the likelihood of receiving a citation likely depends upon the employer’s industry. Again, employers in the healthcare industry face heightened obligations.
Specific safety standards that may apply to hazards associated with COVID-19 include: respiratory protection, personal protective equipment (PPE), bloodborne pathogens and recording/reporting (see above). In addition, there is the general duty clause, which allows OSHA to cite employers that fail to provide a workplace free of recognized hazards.
Finally, Congress has recently directed OSHA to speed up promulgation of an infectious disease regulation for the health care industry.
4) What if your employees insist upon wearing a respirator or mask when one is not required?
This could potentially violate OSHA’s respirator standard. If an employer permits voluntary use of respirators and masks in the workplace, the employer must still comply with the respirator standard, which specifies certain training, fit testing and medical examinations.
5) Are surgical masks considered by OSHA to be respirators?
No. Surgical masks do not filter so they are not deemed to be respirators.
6) Can employers be cited for failing to assess the workplace for COVID‑19 hazards?
Yes. OSHA’s personal protective equipment (PPE) standard requires employers to regularly perform hazard assessments. If an employer identifies a COVID-19 risk that exceeds the risk to the general public, OSHA would expect the employer to select, provide and require the use of appropriate PPE and/or take other measures.
At Morrow & Meyer, LLC, we are available to assist employers with the challenges associated with the COVID-19 virus. If you have any questions, please feel free to contact our OSHA attorneys.
COVID-19: Recommended Strategies for Employers
For the general American public, such as workers in non-healthcare settings and where it is unlikely that work tasks create risk of exposure to COVID-19, the immediate health risk from COVID-19 is considered low. With that in mind, there are some best practices that employers should adopt.
1) Actively encourage sick employees to stay home:
Employees who have symptoms of acute respiratory illness are recommended to stay home and not come to work until they are free of fever, signs of a fever and other symptoms for at least 24 hours. Employees should notify their supervisor and stay home if they are sick.
Talk with companies that provide your business with contract or temporary employees about the importance of sick employees staying home.
Make sure that your sick leave policies are flexible and consistent with public health guidance and that employees are aware of these policies.
Consider not requiring a healthcare provider’s note for employees who are sick with acute respiratory illness to validate their illness or return to work, as healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely way.
2) Separate sick employees. The CDC recommends that employees who appear to have acute respiratory illness symptoms (i.e., cough, shortness of breath) upon arrival to work or become sick during the day should be separated from other employees and be sent home immediately. Sick employees should cover their noses and mouths with a tissue when coughing or sneezing (or an elbow or shoulder is no tissue is available).
3) Emphasize staying home when sick, respiratory etiquette and hand hygiene by all employees.
Place posters that encourage staying home when sick; cough and sneeze etiquette; and hand hygiene at the entrance to your workplace and in other workplace areas where they are likely to be seen.
4) Perform routine environmental cleaning. Routinely clean all frequently touched surfaces in the workplace, such as workstations, countertops and doorknobs. Use the cleaning agents that are usually used in these areas and follow directions on the label. The CDC does not recommend any additional disinfection beyond routine cleaning at this time.
5) Additional Measures in Response to Currently Occurring Sporadic Importations of the COVID–19.
Employees who are well but who have a sick family member at home with COVID-19 should notify their supervisor.
If an employee is confirmed to have COVID-19, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the Americans with Disabilities Act (ADA).
Keep in mind that there may be implications involving various federal, state and local laws, including the ADA, FMLA and GINA.
At Morrow & Meyer LLC, we are available to assist employers with challenges associated with the COVID-19 virus. If you have any questions or would like us to prepare a policy/protocol tailored specifically to your workplace, please feel free to contact our Employment & Labor attorneys.