The information provided within this FAQ does not constitute legal advice. Employment law is complicated and appropriate legal assessment and advice can only be given based on knowledge of your specific facts and taking into account the rapidly evolving legal landscape. We strongly recommend before acting on the above you consult with an employment attorney.
Last updated: March 31, 2020
Can my employer force me to use PTO if I have to stay home due to symptoms of or testing positive for COVID-19 (coronavirus)?
No. The passage of the FFRCA means that employers cannot force their employees to use their banked time off (or PTO) if the sick leave is due to COVID-19 symptoms or positive test for COVID-19 .
What is the impact of the Families First Coronavirus Response Act on my paid sick leave and unpaid sick leave?
The Family First Act, signed into law March 18, 2020, expands paid sick leave and Family Medical Leave Act (unpaid sick leave) coverage for employees.
The Emergency Paid Sick Leave Act applies to all private employers with 1-499 employees. The employer MUST provide up to 80 hours of paid sick time for full-time employees and paid sick time equal to the hours each part-time employee works in the average two week period. The employee must be out sick because they’re subject to quarantine or isolation, are experiencing symptoms of COVID-19 (coronavirus), or are caring for someone who is in quarantine or isolation from COVID-19 (coronavirus) and/or have children in schools that have closed and the employee is not able to work from home.
For text of the new Emergency Paid Sick Leave in the Family First Act, go to https://www.congress.gov/bill/116th-congress/house-bill/6201/text
For a summary of the protections provided, go to: National Law Review.com
The Emergency Family and Medical Leave Expansion Act provides that the first 10 days of Emergency FMLA leave may be unpaid. Employees may choose (but cannot be forced) to substitute any accrued paid vacation leave, personal leave, or medical or sick leave (including paid leave under the Emergency Paid Sick Time Act) to which they are otherwise entitled for unpaid leave during this initial 10 days of Emergency FMLA. Thereafter, covered employers must provide eligible employees with up to ten (10) weeks of Emergency FMLA leave, paid at two-thirds of the employees’ regular rate of pay, up to $200 per day and $10,000 total. Under certain circumstances, an employer who is a party to a multiemployer collective bargaining agreement may fulfill its obligations to provide paid Emergency FMLA by making an equivalent contribution to the plan fund.
This new Section on Emergency FMLA, like the Emergency Paid Sick Leave Act, only applies to private employers with fewer than 500 employees. Emergency FMLA is available only to those employees who have worked at their employers for at least 30 days at the time of their leave request. Mirroring usual reinstatement rights elsewhere in the FMLA, employers with between 25 and 500 employees must restore employees returning from Emergency FMLA to their same job or an equivalent position if the employee’s position is no longer available. However, an employer with fewer than 25 employees may not be required to return an employee taking Emergency FMLA to work if: (1) the employee’s job no longer exists due to economic conditions or changes in operational conditions caused by the public health emergency during the Emergency FMLA period; and (2) the employer has made reasonable effort to find the same or equivalent position for the employee. In such a case, the employer must contact the employee if an equivalent position becomes available within one year of the date on which the employee’s Emergency FMLA ends. The Act also exempts certain small employers from civil actions by employees otherwise allowed by the FMLA.
The DOL is expected to issue regulations in early April that may exempt businesses with fewer than 50 employees when providing Emergency Paid Sick Time or Emergency Paid FMLA would jeopardize the viability of the business.
Can my employer force me to go to work even though I feel it is unsafe due to unreasonable exposure to COVID-19?
Probably Not. The General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health (OSH) Act of 1970, 29 USC 654(a)(1), requires private employers to furnish to each worker “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” This is a federal law, and you can report violations of this Act to the Occupational Safety and Health Administration. Additionally, if you have a genuine concern that your work environment is unsafe then you should make a written communication to your employer regarding your concerns and request the ability to work remotely. If an employer does not grant your request, we also recommend making a complaint to the NCOSH communicating your concerns regarding before you stop working, and this will entitle you to protections under North Carolina’s Retaliatory Employment Discrimination Act. Additionally, a private employer may be in violation of Section 7 of the National Labor Relations Act which protects concerted activity by employees who refuse to work because of unsafe working conditions.
If I’m required to report to work, what protections are employers required to provide?
As mentioned above, the Occupational Safety and Health Act obligates employers to provide a safe workplace for their employees. The Occupational Safety and Health Administration (OSHA) recently published Guidance on Preparing Workplaces for COVID-19, outlining steps employers can take to help protect their workforce. OSHA has divided workplaces and work operations into four risk zones, according to the likelihood of employees’ occupational exposure during a pandemic. While this guidance does not create a new legal standard and is only meant to be advisory, it does identify risk zones that are useful in determining appropriate work practices and precautions.
For more information regarding this topic, got to https://www.osha.gov/Publications/OSHA3990.pdf