Today is December 10th. I know you don’t need me to tell you today’s date, but I’m going somewhere with it.
The Families First Coronavirus Response Act (FFCRA) will expire in exactly three weeks. Can Congress extend the FFCRA? Sure. There’s no sign that it will do so at the moment, though. Could Congress resurrect the FFCRA once we have a new Administration in Washington? Sure, but in all likelihood that will still leave a gap. So, if the FFCRA expires and there’s no extension, does that mean that employees do not have job-protection or paid leave if they are impacted by the COVID pandemic? Does that mean that you, as an employer, are now off the hook, and don’t have to allow your employees to take time off, or hold their jobs open if they are affected by the pandemic? Not necessarily. A patchwork of other laws may impact your company, and may still require you to provide time off, and job-protection to your employees. Let’s explore a bit, shall we? The COVID-19 pandemic has been with us now for close to a year. That means that state and local governments have had time to respond. Many of them have done so by passing emergency COVID-19 legislation, and some of that legislation gives employees the right to take time off if they or a loved one is impacted by the current crisis. Some states have amended existing laws to address the situation. Some have actually passed new, separate laws. In addition, the FMLA and the ADA may impose obligations in this context.
Starting with FMLA: An employee who has COVID or whose parent, child, or spouse has COVID will qualify for up to 12 weeks’ job-protected leave and continuation of health benefits. In such a situation you will have to comply with all existing, applicable regulations. If you try to stop the employee from going out on leave, or you take adverse employment action against such an employee, or you fail to restore him/her to the same or an equivalent position, you risk being liable for FMLA violations. One thing you will not have to do for an employee on FMLA leave (assuming no other laws apply to them) is pay them, as FMLA leave is unpaid.
An employee with an underlying condition may be entitled to job-protected leave as a reasonable accommodation of a disability under the ADA. Here too, the leave is unpaid. Note that ADA-related leave is generally for an employee’s own condition. Things can get a bit tricky here, though. Your employee might tell you s/he’s afraid to come to work. On the one hand, then “I’m afraid”, without more, generally will not be a basis for employee leave. On the other hand though, if the employee has an underlying medical condition that makes them more vulnerable to COVID–and to complications from COVID–you may have to treat that statement as a reasonable accommodation request. Similarly, if your employee has an anxiety disorder, the pandemic may serve as a catalyst for exacerbating the anxiety–and again, the employee’s statement, “I’m afraid”, might be one you have to treat as a reasonable accommodation request.
As of now, nine (9) States (CA, RI, NJ, NY, CT, WA, CT, OR, CO) have passed some version of Paid Family Leave. Five of those nine State laws could provide employees paid leave now. Some of those laws only provide paid leave to care for a family member with a serious health condition. Most of those laws define “family member” more broadly than the federal FMLA. Some of the more recently-passed laws will allow employees paid leave for their own medical issues. Many other states have passed Family Leave laws providing unpaid leave. These laws tend to be similar to the federal FMLA, with more generous leave time and, in some cases, broader definitions as to who is a “family member”. Whether the leave is paid or not, employees entitled to leave under such laws will generally be entitled to job-protection and will be protected from retaliation. Taking adverse action against an employee seeking leave under these laws, or otherwise attempting to exercise their rights could open you up to significant liability.
Employees working in States or localities that have Paid Sick Leave laws will also get some paid leave, albeit for a shorter time than what’s available under paid family leave laws. Some States have modified existing Paid Sick Leave laws to allow for COVID-related leave. Some have actually passed new emergency COVID-19 legislation, granting specific COVID leave. A number of states and localities are now specifically allowing employees to take time off to care for children whose school or childcare is closed due to the COVID pandemic. CA, NJ, NY, DC, AZ, MI, OR, RI, VT, WA are among the States that either provide Paid Sick Leave (and paid leave for COVID reasons) or otherwise have laws dealing with school closings and related issues that may allow leave time, paid or unpaid. Philadelphia now allows the use of accrued PTO for COVID reasons.Pittsburgh apparently is poised to provide employees with up to 14 days’ leave for COVID issues. Many counties and municipalities also have COVID-related leave laws as well.
The above is NOT by any means intended to be an exhaustive list of states or localities providing COVID-related leave. It is merely intended to make you aware that, just as COVID itself will not be expiring after December 31 (that would be awesome if it did though, right?) your obligations to provide COVID-related leave to your employees are probably not going to disappear either — at least not entirely.
You know what you gotta do then, right? You guessed it — speak with your friendly local employment counsel to determine what you need to do when presented with an employee seeking time off to deal with COVID-related issues.
OK, that’s it for now. See you next time. Stay healthy and safe!
Watch the latest video clip in my series, “Ask the Employer’s Lawyer: My Employee Has Exhausted All Her FMLA Leave Time. What do I do?
Watch my television interview on Stop My Crisis with Vivian Gaspar.
Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
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