You have watched and read the news about the pandemic. Fortunately, you are still employed. But now that Harris County citizens have been ordered to remain at home, at least until April 30, 2020, can you collect paid leave under the new law that was just passed? Here is a summary of the statute pertaining to paid leave.
Introduction – the Statute
The federal statute, “Families First Coronavirus Response Act” (the FFCRA), which takes effect on April 1, 2020, covers a number of topics, including such things as school lunches. The portions that apply to paid leave of absence are (1) amendments that expand the Family Medical Leave Act (FMLA) and (2) a new “Emergency Paid Sick Leave Act” (the EPSLA). The two sections cover different situations and have different requirements.
Under what circumstances will an employee be entitled to paid leave?
All of the benefits under the new FFCRA are tied to the coronavirus. As stated, two separate scenarios are involved for paid leave. Under the expanded FMLA, only a parent of a school-aged child (up to 18) who cannot work or telework because the child’s school has closed due to the coronavirus is entitled to paid leave. This first section does not relate to being ill.
The second section, the EPSLA, covers an employee who cannot work or telework due to a need for leave because the employee:
- is ordered to self-quarantine, i.e., stay at home, by federal, state, or local authorities,
- has been advised by a health care provider to stay home due to concerns related to the coronavirus,
- has symptoms of COVID-19, the illness caused by the coronavirus, and is seeking a medical diagnosis,
- is caring for an individual who has been ordered or advised to stay home or has symptoms and is seeking a diagnosis,
- must care for a child whose school was closed due to the coronavirus, or
- is experiencing any other condition substantially similar to COVID-19.
Which workers qualify?
The expanded FMLA covers persons who have been employed for at least 30 calendar days and have requested leave from work. The EPSLA covers any employee regardless of how long they have been employed by that employer.
How much does the employee receive in paid leave?
Under the expanded FMLA which is related to school closings due to the coronavirus, an employee receives twelve (12) weeks at 2/3 of the regular wages, although there is no payment during the first ten (10) days. This paid leave is capped at $200 per day or a maximum of $10,000. Under the second section, the EPSLA related to paid sick leave, a full time employee is entitled to 100% of regular wages for up to ten (10) days. For part time employees, the amount is based on the average number of hours worked in the preceding two weeks. The payment stops at the next workshift after the “need” for the sick leave ends. The maximum is $511 per day for paid sick leave and no more than $5,110 total.
Are you entitled to paid leave because of a stay-at-home order?
The DOL issued clarifying FAQ’s, and to answer this question it depends on whether you would be working but for the governmental order. If you are unable to work (or to telework) even though your employer has work for you, then the answer is “yes.” But you may not take paid leave because of the stay-at-home order if your employer does not have work for you as a result of the order.
Are there limits on the employers’ obligations?
Large companies are not subject to the new statute’s mandates at all. The FFCRA applies only the employers with less than 500 employees. This was the result of a political battle with the Republicans drawing a line in the sand, refusing to subject large corporations to paying anything under the statute. Plus, many corporations already provide paid sick leave.
Employers are reimbursed with tax credits of 100% of any outlay for paid leave. Also, the Secretary of Labor has the authority to exempt businesses with fewer than 50 employees if imposing the statute’s requirements would jeopardize the viability of a business. Employers are not required to pay sick leave to certain health care providers and emergency responders.
If an employee returns to work and the job has been filled, the employer is absolved of liability if the employer makes “reasonable” efforts to find the employee an equivalent position within the company but cannot. And as with most statutes of this type, there is an anti-discriminatory provision.
Can employees who do not have school-aged children and are not ill be sent home by the employer because of fear of the coronavirus?
Answer: Under the current CDC guidance on COVID-19, an employer can send home an employee with COVID-19 or symptoms associated with it. Even before this pandemic, based on the Texas Supreme Court opinion in Hathaway v. General Mills, an employer can make changes to employee’s terms and conditions of work so long as the employer gives the employee unequivocal notice of the changes.
Furthermore, employers can and should take precautionary measures to avoid spread of the virus. An employer is required to temporarily close its business if mandated by a governmental disaster declaration, as has occurred in Harris County.
Can an employer fire an employee because the employee has COVID-19 or believes that an employee has the illness?
Answer: This is debatable because the EEOC and other authorities have not issued a definitive answer as to whether COVID-19 is a “disability” protected under the Americans with Disabilities Act (the ADA). At this point, we do not know enough about the disease to make a definitive statement. What we do know is that the ADA, which protects applicants and employees from disability discrimination, is relevant to a pandemic in at least three major ways.
First, the ADA regulates employers’ disability-related inquiries and medical examinations for all applicants and employees, including those who do not have ADA disabilities. Second, the ADA prohibits covered employers from excluding individuals with disabilities from the workplace for health or safety reasons unless they pose a “direct threat” (i.e., a significant risk of substantial harm even with reasonable accommodation). Third, the ADA requires reasonable accommodations for individuals with disabilities (absent undue hardship) during a pandemic.
See Pandemic Preparedness in the Workplace, EEOC website, March 21, 2020 update.
In a practical sense, employers likely will not and should not terminate a valuable employee who contracts COVID-19. This is the very reason for the enactment of the EPSLA, to provide paid leave to the sick employee and then give the employer 100% reimbursement by a tax credit.
The answer to your question above is – “It depends.” As with most legal questions, every situation is based on its own unique facts. If you have a question about your rights under the new FFCRA, we can help. Contact us now.
 This exemption applies only for employees who are parents of children whose schools have closed due to the coronavirus.
 The Harris County Order contains exceptions for “Essential Businesses” and certain other entities.