Pamela Bourne
Woods & Aitken LLP

The COVID-19 pandemic has drastically impacted our workplaces. With the passing of the Families First Coronavirus Response Act (“FFCRA”) and new guidance from federal agencies on a weekly basis, employers are struggling to keep up with all of the changes and to stay in compliance with federal labor and employment laws. To help, we have compiled a list of the most common questions we have received regarding COVID-19 and the workplace.

Question: Do the paid sick leave and expanded family and medical leave provisions of the FFCRA apply to public agencies?

Yes. Any public agency with one or more employees is a covered employer under the FFCRA. While there is a 500-employee cap for private employers, this does not apply to public agencies, so even large public employers with more than 500 employees must comply with the FFCRA.

Question: What if an employee took leave before April 1? What if schools remain closed past December 31?

The FFCRA’s paid leave provisions took effect on April 1 and apply to all covered leave taken between April 1 and December 31. Therefore, any leave taken before April 1 is not covered by the FFCRA and the employee would still be entitled to the newly imposed leave requirements.

Likewise, the FFCRA expires on December 31. In the event the pandemic persists, and social distancing efforts remain in place past December 31, employers would not be obligated to provide paid leave under the FFCRA past December 31, and any unused leave available to an employee under the FFCRA would be forfeited.

Question: What types of paid leave are provided for in the FFCRA?

The FFCRA provides for two new types of paid leave—the Emergency Paid Sick Leave Act (“EPSLA”) and the Emergency Family and Medical Leave Expansion Act (“EFMLEA”).

The EPSLA requires covered employers to provide two weeks of paid leave to any employee who is unable to work (or telework) due to:

  1. Being subject to a federal, state, or local quarantine or isolation order related to COVID-19;
  2. Being advised by a health care provider to self-quarantine due to COVID-19 related concerns;
  3. Experiencing COVID-19 symptoms and seeking a diagnosis;
  4. Caring for an individual subject to a federal, state, or local COVID-19 quarantine or isolation order, or an individual that has been advised to self-quarantine by a health care provider due to COVID-19 related concerns;
  5. Caring for their own child because the child’s school or place of care closed, or their childcare provider being unavailable, due to COVID-19 concerns; and
  6. Experiencing any substantially similar conditions specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Employees will receive their regular rate of pay (up to a maximum of $511/day or $5,110 total) if they need leave because of reasons (1)-(3). Employees eligible for leave under categories (4)-(6) are to be compensated at a rate of 2/3 their regular rate of pay up to $200 per day or $2,000 total.

The EFMLEA allows employees who have been employed by the employer for at least 30 days to take up to 12 weeks of leave if they are unable to work (or telework) because they need to care for their own minor child whose school or place of care is closed due to COVID-19. The first two weeks (usually ten workdays) of EFMLEA is unpaid. However, employees may choose to use their EPSLA benefits or any other applicable paid leave during that time. After the first two weeks, employers must provide employees with paid leave at a rate of 2/3 the employees’ regular rate at the number of hours employees normally would be scheduled to work. Paid leave cannot exceed $200 in one day or $10,000 total.

Importantly, an employee is only entitled to a total of 12 weeks of leave under the EFMLEA and traditional FMLA during a 12-month period. For example, if an employee had taken 3 weeks FMLA leave in March 2020 for a knee surgery, that employee would have a maximum of 9 weeks remaining to use under EFMLEA to care for his child whose school is closed. Employees are entitled to paid sick leave under EPSLA regardless of how much leave has previously been taken under the FMLA.

Question: A County employee has tested positive for COVID-19. What should the County do now?

First, stay calm and do not make any knee-jerk reactions. Review guidance from the CDC and talk to your local health department to get current advice. Then, you will want to identify those employees who recently came in close contact with the infected employee, as they may need to be removed from the worksite, self-quarantined, and encouraged to seek medical advice. Next, evaluate the worksite, tools, and equipment. Employers will need to thoroughly clean the physical areas and objects that the employee used. Finally, think about who needs to know. Review your contracts and any notice requirements (e.g., OSHA Form 300). When providing notice, remember that the infected employee’s name should remain confidential and the necessary information should only be shared on a need to know basis.

Question: The County employs several emergency personnel like Sheriff deputies and corrections officers. Can the County deny an emergency responder’s leave request under the FFCRA?

Yes. The FFCRA states employers may exclude “health care providers” and “emergency responders” from taking EPSLA and EFMLEA. The County can adopt a policy exempting all employees who fall under these definitions from FFCRA coverage, or it can make the decision on a case-by-case basis, so long as such individual decisions are based on objective, non-discriminatory reasoning. We recommend adopting objective criteria before considering any requests and documenting the reason(s) for any denial.

Question: Budgetary concerns caused the County to furlough several employees who were on paid leave under the FFCRA. Does the County have to continue to pay the EPSLA or EFMLEA benefits?

The FFCRA prohibits an employer from retaliating against an employee for using EPSLA or EFMLEA. Even if the employer faces budgetary restrictions that necessitate a furlough, employers must use legitimate, non-discriminatory criteria that is unrelated to the use of EPSLA, EFMLEA, or other protected activity in selecting employees.

If these employees were lawfully selected for furlough, the answer to the above question is no. As of the date the County closes a worksite or puts workers on furlough, employees are no longer entitled to EPSLA or EFMLEA benefits. The employees will likely be eligible for the new federal unemployment benefits under the Coronavirus Aid, Relief, and Economic Security Act, state unemployment, or some combination of both. Encourage affected employees to apply and direct them to the appropriate resources. If the County is able to bring back furloughed employees before the end of 2020, these employees will be eligible for paid leave benefits under the FFCRA through the end of the year.

Question: An employee is out on EPSLA because her doctor advised her to self-quarantine given that she has COPD and is diabetic. Her 10 days of paid leave under the EPSLA ends tomorrow but returning to work could be dangerous given her pre-existing conditions. If we do not have telework available, what other options does the employee have?

After the employee exhausts her paid leave entitlement under EPSLA, no other leave is available under the FFCRA for an individual advised by a health care provider to self-quarantine due to a pre-existing condition. However, the County may still have obligations under the FMLA and/or ADA. For example, the employee’s COPD or diabetes may qualify as a “serious illness” under the FMLA. While the County should process this request as it would any other FMLA request, we suggest being flexible on health care certifications given the strain on health care resources. Likewise, the County may also need to provide a reasonable accommodation under the ADA, such as temporarily reassigning the employee to a position that is not public facing, providing masks or barriers, allowing the employee to work remotely or place the employee on an unpaid leave of absence.

Question: An employee is out for 12 weeks under EFMLEA due to child-care issues. What if the County doesn’t have a job for the employee when they’re ready to come back (e.g., the County does not have enough work or the County needed to fill the role immediately)?

Generally, employees taking leave under the EPSLA or EFMLEA are entitled to be restored to the same or equivalent position. The FFCRA has specific anti-retaliation language to protect employees that use leave or file a complaint under the FFCRA. However, there are certain situations where a County should not be liable for failing to return an employee to his position.

An employee is not protected from neutral employment actions, such as layoffs, that would have affected the employee regardless of whether he or she took protected leave. The County must be able to show the layoff was due to legitimate business reasons and that the employee would have been laid off even if he or she had not taken leave.

If the County employs less than 25 employees, the County may not be obligated to reinstate an employee if the position no longer exists due to economic conditions, and the County made reasonable efforts to restore to an equivalent position. The County then must make a reasonable effort to contact that employee if an equivalent position opens back up within the next year.

Finally, the County is not obligated to restore a “key employee” taking leave. A key employee is a salaried FMLA-eligible employee who is among the highest paid 10 percent of all employees within 75 miles.

Denying restoration puts the County at risk for legal action and should be discussed with a NIRMA representative or the County’s legal counsel before action is taken.

Question: What documentation should the County be gathering from employees requesting paid leave under the FFCRA?

The IRS recently released guidance on what documentation is required for businesses to receive the tax credits available under the FFCRA. While public agencies are not eligible for these tax credits, NIRMA members should still follow the IRS guidelines for documentation as the DOL has instructed employers not to request any documentation beyond that required by the IRS.

The standard documentation under the FFCRA is a written request by the employee that includes the following:

  • Name;
  • Leave dates requested;
  • A statement of the COVID-19 related reason the employee is requesting leave and written support for such reason; and
  • A statement that the employee is unable to work, including by means of telework, for such reason.

Additional information may be required under the various reasons for leave, such as the child’s name and age along with the school’s name for an employee taking leave to care for a child whose school is closed.

While these examples and answers are not exhaustive of the FFCRA issues facing counties, this hopefully provides a good overview, and a gentle reminder, of our obligations and employees’ rights. We’ve also provided a free webinar to NIRMA members on this topic that can be watched by CLICKING HERE.

If you have any labor or employment-related questions, please contact Pam Bourne using the NIRMA helpline at 1-866-896-6423 (toll free) or 402-898-7423 or email at pbourne@woodsaitken.com or Ashley Connell at aconnell@woodsaitken.com. Woods Aitken has also launched a Coronavirus Resource page that includes valuable information regarding the coronavirus pandemic and all of our publications on COVID-19 at www.woodsaitken.com. Similarly, NIRMA has a COVID-19 page that is being kept up to date with current information at Message to Our Members re:COVID-19. We encourage you to visit this page often for updates as well.

1. The Department of Labor defined “health care provider” and “emergency responder” in its FFCRA regulations. It is up to the employer to determine whether employees fall within the DOL’s definition. Per the DOL’s regulations, an “emergency responder” is any employee necessary for the provision of transport, care, healthcare, comfort and nutrition of such patients, or others needed for the response to COVID-19. This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, child welfare workers and service providers, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency, as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility. It will also include any individual whom the Governor determines is an emergency responder necessary for Nebraska’s response to COVID-19.

2. IRS Guidance on documentation is outlined in questions 44 through 46 of COVID-19-Related Tax Credits for Required Paid Leave Provided by Small and Midsize Businesses FAQs, at: https://www.irs.gov/newsroom/covid-19-related-tax-credits-for-required-paid-leave-provided-by-small-and-midsize-businesses-faqs.

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