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: April 2, 2020
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 (“EPSLA” )applies to private employers with 1-499 employees. Under the EPSLA, an eligible full-time employee is entitled to up to 80 hours of paid sick time. A part-time employee is entitled to paid sick leave 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
The Emergency Family and Medical Leave Expansion Act (“EFMLEA”) provides for up to 12 weeks of partially paid leave if the leave is needed to care for a child. There are only TWO reasons that employees may rely upon to seek this paid leave: 1. Employee is caring for a child whose school or childcare facility is closed; or 2. Employee’s childcare provider is unavailable due to a public health emergency. How is the EFMLEA paid? Weeks 1 and 2 of the expanded leave are unpaid. Employers may require employees to concurrently use their accrued PTO during the first two weeks of expanded leave. Thereafter, employers must provide eligible employees with up to ten (10) weeks of EFMLEA, paid at two-thirds of the employees’ regular rate of pay, capped at $200 per day and $10,000 total.
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. An employee who works for an employer with less than 50 employees DOES NOT have any private right of action against its employer who unfairly denies it EFMLEA but the DOL may investigate the employer upon complaint by a denied employee.
The DOL issued regulation summary (29 CFR Part 826) on April 1, 2020 that provides more specific guidelines on how the law will affect employees and employers. https://www.federalregister.gov/documents/2020/04/06/2020-07237/paid-leave-under-the-families-first-coronavirus-response-act
Can my employer force me to go to work even though I feel it is unsafe due to unreasonable exposure to COVID-19?
Probably. This issue is not addressed in the new FFCRA so employees must look to other laws for protection. One such law is the Occupational Safety and Health (OSH) Act of 1970, 29 USC 654(a)(1), that 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. There are also state OSHA laws and regulations that may apply to this situation. However, an employee would have to demonstrate that their workplace is so inherently dangerous from a potential COVID-19 threat as to make it inherently dangerous affording the employee some protection if he/she did not go to work. It is unclear if the law will be applied in this way during the COVID-19 pandemic. In any event, 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. Finally, 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. You may consider putting a complaint in writing to your employer referencing the NLRA.
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