Legal updates on Coronavirus Employment and Family Medical Leave
The Coronavirus pandemic has created a tricky situation for both employees and employers and raises many employment-related questions. One big question is paid leave during this crisis for employees and employers and how this applies to individuals affected from the Pandemic.
For those that are not aware, the Families First Coronavirus Response Act was passed in March of 2020 that requires employers that qualify under the statute to provide employees to paid sick leave and expand family and medical leave related to COVID-19. The act amends the Family Medical Leave Act through the end of December 2020. Under the section entitled:
“Emergency Family and Medical Leave Act”
a. Family Medical Leave Act
Many indivdiuals may or may not be aware of the Family Medical Leave Act. It is an important protection to employees that are dealing with personal health or ther family issues. The Family Medical Leave Act requires certain employers to allow up to 12 weeks of unpaid medical leave due to a personal or family-related sickness for employees that have worked more than a year. Under the original Family Medical Leave Act, employers that employ more than 50 employees are required to extend the leave to employees. With the Coronavirus issues, the act has been amended through the end of this year to address additional issues that have arisen with Covid-19.
b. Emergency Family Act
The Families First Coronavirus Act amends what a qualified employer is for companies that employ 500 employees or fewer from the original 50 employees or more. The original act included companies that had 500 employees or more and excluded companies with 50 employees or less. The new act now makes it so the Family Medical Leave Act only applies to companies that employees 500 or less. Companies that employ 500 or more are now exempt from the act and has effectively left those employees without Family Medical Leave Protection.
The Families First Coronavirus Act act amends and lowers the Family Medical Leave one-year requirement to instead employees who have worked for the company for 30 days. So you don't have to work more than a year to get the protection now, you just have to work for the company for 30 days.
It does not apply to federal employees. It also can exclude health-care providers and responders. Small businesses less than 50 employees can also be exempt.
The Families First Coronavirus Act the act allows individuals to take time of work for personal or family related health issues and also adds time if an employee cannot work or telework due to the need to care for a child from school or child care closure. If a spouse couple works in the same company, they are allowed paid leave up to 10 days.
The Families First Coronavirus Act also act requires employers to give employees 80 hours of paid sick leave if the employee is unable to work or telework due to experiencing symptoms related to Coronavirus, caring for a family member with symptoms or is under government quarantine quarantine order or if the individual is caring for a child due to school or child-care closure. The original Family Medical Leave Act didn't allow paid sick leave.
However, the amount of paid sick leave cannot exceed $511 per day. Businesses are allowed a tax credit for issuing paid sick leave.
What it all means
A few takeaways here. This Act is good for some employees who have worked for less than a year but more than 30 days as they now qualify for up to 12 weeks of unpaid leave. It also now appears that all employees have been given an additional 80 hours of sick leave equivalent of two work weeks regardless of the size of the business.
It doesn’t seem like the paid sick leave section makes any qualifiers on what businesses do and don’t qualify as it does to the amendments to the Family Medical Leave Act and appears to be its own separate act.
It also now allows individuals to take time off related to child-care under the Family Medical Leave Act. Bottom line, if you work for a company that employs less than 500 people and have worked for the company for less than 30 days, you are allotted 12 weeks unpaid leave related to personal, family or health issues, including issues related to the virus and child-care. Any company that terminates an employee exercising or attempting to exercising these rights may be subject to legal liability.
b. Bigger companies
The downside for employees and upside for some employers is that this act does not apply to businesses more than 500 employees. So the expansion part is a little misleading. It appears that some employees who work for bigger companies that employ more than 500 employees may no longer have access to 12 weeks of unpaid leave.
However, bigger companies may also have other provisions under their own company policies or bargaining agreements that extend or broaden Family Medical Leave rights which could include paid leave. It would be important to know each companies’ specific policies for leave.
c. Legal liability
The Family Medical Leave Act has harsh civil penalties against companies that violate the act when an employee attempts to exercise those rights. It can include lost wages and benefits, any other consequential damages, attorney fee reimbursement and punitive damages up to double the amount of the other damages if the actions were intentional.
Bigger companies would now be exempt from civil liability for terminating individuals who attempt to take unpaid leave. It appears the Act could be an attempt to shield bigger companies from civil liability for terminating individuals that require sick leave and are unable to work. A bigger company could technically terminate a massive amount of employees that are unable to work due to government lock-down orders.
However, companies still could possibly be held liable under other employment sections such as discrimination based on disability if leave is related to other possible health complications concerns or precautions related to Coronavirus exposure such as those that have lower immune responses or pulmonary issues or issues related to age. This would depend on how much the leave is required for these individuals as it relates to what a reasonable accomodation would be for these people.
The actions could also be discriminatory if an individual seeks with health complication concerns or precautions because of an individual’s age. Individual's that are older that are terminated because the company is in fear of them getting the virus could also possibly be held legally liable for discrimination based on age, however, it is an unexplored area with a pandemic and whether or not the rationale is justified.
Companies less than 500 that terminate individuals for taking leave due to child-care, quarantine or other Coronavirus related issues can also now be held legally liable. This puts smaller companies in a legal bind when it comes to the possibility on cutting down on its work-force which is now a very real reality for all companies. It could also hold a company legally liable if it terminates an individual if they start to show or claim they may have symptoms related to Coronavirus.
Overall, the Act bill really isn’t a big of an expansion as it purports and is in many less a cut on employees’ rights under the Family Medical Leave Act. Also looking into the reality of the situation, these provisions also may not properly address the needs of employees and families. If one does contract the virus or is on quarantine because of possible exposure two weeks of unpaid sick leave may not be sufficient to meets the needs of employee.
The other stimulus bill passed by Congress attempts to help families with additional financial relief which may in turn, act as a type of “paid leave” and incentivize companies not to make massive layoffs as well as government relief loans. It still seems though that both Acts fall short to properly expand a protection to employees as they face government and personal issues related to the virus.
Smaller businesses also may not have the proper legal knowledge to inform its employees of their new federal rights. The time the bill was passed and the time it is fully in play may have also been too late to save millions of employees from termination prior.