Emergency Paid Sick Leave and Other Employment Issues Related to COVID-19

Article Updated 4/30/2020

The Coronavirus disease (COVID-19) has resulted in rapid and unprecedented actions by communities, individuals, and businesses. Businesses have had to make many difficult decisions and react quickly to the recommendations of national and local authorities. This article provides an overview of employment law considerations for businesses.

Families First Coronavirus Response Act (FFCRA)

On Wednesday evening, March 18, President Trump signed into law the Families First Coronavirus Response Act (FFCRA), which will generally be in effect from April 2 through the end of 2020. (Text available here.)

Under FFCRA, all employers with fewer than 500 employees must grant all employees emergency paid sick leave (EPSL) at full pay up to $511/day for up to 10 days if they are unable to work because of a government quarantine order or a health care provider's advice to self-quarantine, or because the employee is experiencing Covid-19 symptoms (typically fever, cough, and shortness of breath) and seeking a medical diagnosis. Full-time employees will be entitled to 80 hours of EPSL; part-time employees' entitlement will be proportional to their normal hours. EPSL is a new category of leave in addition to employers' existing policies, and employees can choose whether to use EPSL or other available paid leave. EPSL is enforced using existing mechanisms under the federal Fair Labor Standards Act (FLSA), which we note may include private collective actions.

Similarly, all employers with fewer than 500 employees must also grant all employees caring for people under quarantine, or for their children who are out of school or daycare because of Covid-19, EPSL at two-thirds pay up to $200/day, also for a period of up to 10 days. Employees who are caring for their children who are out of school or daycare because of Covid-19 will also then be entitled to paid leave at the same rate for up to 10 additional weeks. The 10 additional weeks will be a new category of leave temporarily added to the Family and Medical Leave Act (FMLA), referred to as leave for a "public health emergency." Employees must have been employed for at least 30 days to be eligible for public health emergency leave.

FFCRA refers to public health emergency leave as potentially unpaid for the first 10 days, but that period will be covered by EPSL. This type of leave counts as FMLA leave, and may be unavailable, apparently, where an employee has already used FMLA earlier in the year. Existing provisions of FMLA will remain in effect, and there appears to be no doubt that Covid-19 will qualify as a "serious health condition" under that law. As with EPSL, employees can choose whether to use paid FMLA under FFCRA or other available paid leave.

Both EPSL and paid FMLA required by FFCRA are to be 100% reimbursed by refundable tax credits against quarterly payroll taxes.

Employers with fewer than 50 employees who are generally exempt from FMLA should note that they will nevertheless be required to provide paid FMLA public health emergency leave. The federal Department of Labor (DOL) is granted authority to exempt businesses with fewer than 50 employees from the new FMLA requirement, but only where it would jeopardize their viability as a going concern. Reinstatement rights will not apply where an employer with fewer than 25 employees eliminates a position as a result of a public health emergency and makes "reasonable efforts" to restore the employee for a year after the emergency ends, or a year and 12 weeks after the employee's leave begins. There is also no private right of action to enforce the new FMLA requirement against employers with fewer than 50 employees. Aside from these provisions, there is no lower bound on the size of employers regulated by FFCRA.

Employers of healthcare providers and emergency responders may elect to exclude such employees from both EPSL and the new category of FMLA leave. There is no mechanism prescribed for election. DOL also has authority to exempt such employees by regulation.

American with Disabilities Act

Other employment concerns raised by Coronavirus include Americans with Disabilities Act (ADA) rules limiting medical inquiries of employees. Some restrictions on medical inquiries and examinations will apparently be relaxed for the emergency under EEOC (Equal Employment Opportunity Commission) guidance on Pandemic Preparedness in the Workplace, which was published in 2009 but recently reiterated. (Available here.) On March 18, EEOC published updated guidance indicating that employers may take employees' temperatures, and confirming that the exclusion of employees with symptoms of Covid-19 from the workplace will not violate ADA. (See updated guidance.)

ADA generally requires that information received in response to medical inquiries of employees (and presumably, temperature measurements) be kept confidential, but that requirement may be in tension with employers' responsibilities to provide a safe workplace under OSHA (Occupational Safety and Health Act) general duty requirements and/or personal protective equipment (PPE) standards. (See OSHA COVID-19 Overview; OSHA COVID-19 Standards.)

Businesses that provide health care or are otherwise open to the public face issues of policy that may be closely regulated by laws including the public accommodations provisions of Title III of the ADA. Regulations under that title allow public accommodations to avoid "direct threats" to health and safety, provided that the measures taken are based on accurate and up-to-date scientific information. (See Regulations.)

Fair Labor Standards Act

Any employers who contemplate suspending any operations should be aware that layoffs for salaried exempt employees must usually be done in complete workweek increments, to ensure compliance with salary basis requirements under the federal Fair Labor Standards Act (FLSA). (See Regulations.) However, there are industry- and occupation-specific exceptions, such as business owners, doctors and lawyers, and administrative or professional employees paid on a fee basis.

Keeping informed and up to date

Legal compliance and good business decisions of all kinds may require ongoing current knowledge of epidemic conditions in your areas of operation. The Centers for Disease Control and Prevention (CDC) and the Virginia Department of Health are maintaining websites with daily updated information on case counts and recommendations. (See CDC Coronavirus; CDC Coronoavirus Resources for Businesses and Employers; VDH COVID-19 in Virginia.) We urge all businesses and employers to monitor these agencies' reports and recommendations closely as conditions develop. If we can help your business resolve unclear and/or conflicting legal and business requirements, please reach out to your Spotts Fain contact attorney or feel free to find an appropriate attorney to contact on our website, linked above.

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We plan to write separately next week with more detail about issues under the ADA, the FLSA, and the Worker Adjustment and Retraining Notification Act (WARN), and then have another update in the coming weeks on laws affecting employment recently passed by the Virginia General Assembly. In general, new Virginia laws will take effect on July 1, 2020, if and as signed by Governor Northam.