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COVID-19: What California Employers Ought to Know

Author: Kyle R. Maland

Guest Editor: Kathryn Lee Colgan

March 20, 2020 2:53pm

The federal government just passed the Families First Coronavirus Response Act (the “Act”) to help employees and businesses facing challenges related to the coronavirus. The law becomes effective 15 days after President Trump signs the bill, which will make the bill effective no later than April 2, 2020. In sum, the Act guarantees free coronavirus testing, secures paid emergency leave, expands FMLA leave, and enhances Unemployment Insurance.

The following are some of the key provisions affecting employers across jurisdictions that all should be aware of.

Prohibition Against Discrimination and Retaliation

As an important initial point, the FFCRA makes it unlawful to discharge, discipline, or in any manner discriminate (including retaliation) against any employee who takes leave under the act.  This very likely also includes employees who request leave under the act, who filed a complaint or initiated any proceeding under this act (including a proceeding to enforce this act) or has or is about to testify in any such proceeding.

Given the tumultuous times and lack of current and updated information provided to qualified businesses and employers, we anticipate due to the uncertainty, claims of discrimination and retaliation will arise in response to required actions and inactions based on the new leave requirements and layoffs happening across many sectors of our society.

Emergency Paid Sick Leave

The emergency paid sick leave provision of the act would be the first federal law requiring private employers to provide paid sick leave if the parameters for qualification are met.

Of importance, the bill appears to allow employers who already provide their employees sick leave covering the types of COVID-19 absences described below to apply their existing voluntary sick leave policies to fulfill the mandated emergency leave requirements. For employers who proactively implemented COVID-19 sick leave policies that are equal to, or more generous than, FFCRA, this new bill will serve as the foundation for applying sick leave.

The Act hold employers with fewer than 500 employees and government employers (with at least one (1) employee are required to provide two weeks (80 hours for full time employees and a typical number of hours for a typical two week period for part-time employees) of paid sick leave to any employee who is unable to work, or telework, because of any of the following:

  1. The employee is subject to a Federal, State, or local quarantine or isolation order related to coronavirus;
  2. The employee has been advised by a health care provider to self-quarantine due to concerns related to coronavirus;
  3. The employee is experiencing coronavirus symptoms and seeking a medical diagnosis;
  4. The employee is caring for an individual who is subject to an order as described in reason (a) or has been advised as described in reason (b).
  5. The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the childcare provider of such son or daughter is unavailable, due to the coronavirus.
  6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Employees who go on paid sick leave for reasons outlined in subsection (a), (b), or (c) will be paid at their regular rate of pay. Employees who use their leave for reasons outlined in subsections (d), (e), or (f) will be paid at two-thirds the employee’s regular rate of pay. In no event, however, shall the paid sick leave exceed $511.00 per day and $5,110.00 in the aggregate for reasons outlined in subsection (a), (b), or (c), or $200.00 per day and $2,000.00 in the aggregate for subsections (d), (e), or (f).

Of importance, employers cannot require employees to use other forms of paid leave provided by the employer before using Paid Sick Leave under the Families First Coronavirus Response Act. Employers with existing sick leave policies must provide paid sick leave under the Families First Coronavirus Response Act in addition to the existing leave available. Employers may receive a payroll tax credit for the qualified sick leave wages paid out by the employer, subject to limitations.

The Act also authorizes the Secretary of Labor to exclude certain health care providers and emergency responders from providing the paid sick leave. Businesses employing less than 50 employees may also be excluded if the leave “would jeopardize the viability of the business.” It remains unclear what businesses must do to receive an exemption under this section, however. We expect clarification as to this in the coming days/weeks.

Expanded Family and Medical Leave (FMLA)

The FFCRA also expands certain FMLA leave through the end of the year, December 31, 2020, for employers with fewer than 500 employees, subject to certain requirements. Employees who have been on the job for at least 30 days are eligible for 12 weeks of paid family and medical leave if the employees are unable to work due to a need for leave to care for a child if the child’s school or place of care has been closed or if the child care provider is unavailable, due to the coronavirus.

The first 10 days of the leave may be unpaid. However, employees may choose to use any accrued paid time off, including vacation and/or sick leave, to cover this initial 10-day period. If an employee needs leave beyond the initial 10-day period and continues to meet the requirements for paid leave as previously described, then the employee will be paid no less than two-thirds of the employee’s regular rate of pay for the regular hours worked. In no event, however, shall the paid leave exceed $200.00 per day and $10,000.00 in the aggregate. If an employee’s scheduled hours are uncertain due to variance in weekly hours, the employer should use the average number of hours scheduled over the prior six (6) month period, or the reasonable number of expected hours at the time of hiring, if the employee did not work the prior six months.

Employers will also receive a payroll tax credit for the qualified sick leave wages paid out by the employer, subject to caps based on the reason for the leave and daily maximums.

Employers are required to restore employees to their same or similar position unless:

  1. The employer has fewer than 25 employees;
  2. The position held by the employee no longer exists due to economic or other operating conditions that affect employment and are caused by the public health condition;
  3. The employer attempts to restore the employee to a similar position; or
  4. The attempts to restore to a similar position fail, and the employer contacts the employee if such a position becomes available.

The Act also authorizes the Secretary of Labor to exclude certain health care providers and emergency responders from providing the paid sick leave. Businesses employing less than 50 employees may also be excluded if the leave “would jeopardize the viability of the business.” It remains unclear what businesses must do to receive an exemption under this section. WE will update this section as new information to this end becomes available.

COVID-19 Testing

The FFCRA requires all private health plans to provide coverage for COVID-19 diagnostic testing, including the cost of a provider, urgent care, and emergency room visits in order to receive testing. Coverage for testing must be provided at no cost to the consumer.

Next Steps

The FFCRA’s expansion of the existing FMLA requirements  by guaranteeing the above referenced leave benefits create a number of unanswered questions as to important issues related to required medical certification for school closures and/or quarantining, notice requirements to qualified employees regarding these new/temporary benefits, how other eligible state leave programs are affected by the Act, whether backpay is necessary to employees already on leave, and whether eligible employees who are laid off prior to the effective date of the Act are entitled to leave and/or restoration rights under the Act.

We recommend employers begin implementing protocols for notice to employees as to the above program changes/additions and immediate compliance with these provisions to mitigate against potential abuses as well as lawsuits for discrimination and retaliation down the road. Employers should also closely monitor new developments as this is a rapidly changing area of the law. We will provide updated information and recommendations as the situation as to the above develops.

If you have any questions related to the provisions of the Families First Coronavirus Response Act and/or other State and Federal Leave laws, or questions regarding compliance procedures for layoffs, please contact our Tyson & Mendes’ Labor and Employment attorneys whose information is listed below.

Regina Silva
Director of Employment Practices
rsilva@tysonmendes.com

Kyle R. Maland
Labor & Employment Attorney
kmaland@tysonmendes.com

Kathryn Lee-Colgan
Senior Counsel
klee@tysonmendes.com

Andrew L. Smith
LA Branch Managing Attorney
asmith@tysonmendes.com

Emily C. Meeson
Labor & Employment Attorney
emeeson@tysonmendes.com

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