With the recent, ever-changing, laws and regulations relating to employers and employees, there is confusion as to what respective duties and obligations, and what options, are available to employers and employees. While the U.S. Department of Labor moved quickly to implement new emergency paid sick leave laws, the speed in which the new federal mandates were put in place may leave employers and employees uncertain as to what to do.
The Families First Coronavirus Response Act (“FFCRA”) created the first-ever federal mandate that employers with fewer than 500 employees provide workers with short-term paid sick time for various reasons tied to COVID-19, and long-term paid leave to care for kids whose schools or childcare facilities are closed.
Under the FFCRA, employers with 500 or fewer employees must provide their employees with up to two weeks of sick leave at full pay up to a $511-per-day cap if they are directly affected by COVID-19, and at partial pay up to $200 a day to care for affected family members.
The law lays out six “qualifying reasons” that let workers use the two-week paid sick leave benefit, including if they can’t work because of a quarantine or isolation order or have COVID-19 symptoms and are seeking a diagnosis.
The law also amends the Family and Medical Leave Act (“FMLA”) to provide workers with up to 10 weeks off at partial pay, up to $200 per day, to care for children whose schools or childcare centers have closed due to the virus, after two unpaid weeks. The FMLA applies to all public agency employers and private companies with more than 50 employees. Employers covered by the law can seek reimbursement of any qualifying FFCRA leave through tax credits.
The emergency paid sick leave allotment can be taken on top of any existing paid leave that an employer already provides and employees can use existing paid leave to top off the amount they are paid under the new law.
Under the FFCRA, businesses with fewer than 50 employees can be exempted from having to provide leave to workers whose kids’ schools or child care providers are closed because of COVID-19, a carve-out that depends on the extent to which workers’ absences would disrupt companies’ operations.
Presently, the Department of Labor has stated that employees will not be able to take advantage of any of the leave options made available in the FFCRA during any period where their employers are closed, whether for lack of business or because of an order by public officials. However, employees in those situations can potentially claim unemployment benefits, according to the Department of Labor.
If a business remains open but furloughs workers, those employees similarly will not be entitled to leave under the FFCRA, but can seek unemployment benefits.
Employers have been or are considering options that will enable them to reserve their workforce while also retaining the flexibility to re-deploy them later. One option is placing employees on unpaid leave; namely, a furlough.
If employees who are placed on furlough perform any work remotely (even phone calls or emails), they are due compensation under applicable law, including the FLSA and State Law. Therefore, if the employer puts in place a furlough, the employer should provide notice informing employees of their furlough (or a furlough policy) which should state that no work is permitted while on furlough.
If exempt employees perform work during a work week while on furlough, it is likely they will need to be paid for the entire week under the FLSA and State Law. Nonexempt employees will need to be compensated for the time they work. While employees must be paid for work that they do without authorization, employers may subject them to disciplinary action for violating the instruction not to work.
Whether paid time off (“PTO”) or vacation pay must be provided to employees on furlough will depend upon the terms of the employer’s policy, handbook, and applicable state and local law. If the right to take time off with pay has not been earned under the terms of the policy and any applicable state or local law, in many jurisdictions, the employer may elect not to make payment to employees who have been furloughed.
The length of time that insurance coverage will continue under group insurance plans, such as health, disability and life, are set out in the terms of the applicable insurance plans and/or policies. Employers should inform employees of when group coverage ends.
Employees should ask their employer about what insurance benefits continue; and who will be responsible for making insurance premium payments. Once health coverage ends due to lack of the requisite hours being worked, employees will be eligible for continuation of coverage under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”). Employers must timely and accurately inform their employees of this right, unless where the group plan is terminated which would result in the termination of any right to continued coverage under COBRA.
Employees should be notified of their right to apply for unemployment compensation. California and many other States have relaxed and expedited the application process and both State and Federal mandates have increased such benefits.
It is critical that both employers and employees regularly access their City, State and Federal websites as to not only their rights, duties and obligations, but also what benefits are or will be available.
Whether you are an employer or an employee, Steinberg Law is here to help and guide you through not only these difficult times, but for all your business, labor and employment issues.