Few employees and executives have been spared the impacts of the COVID-19 coronavirus. Whether because of illness to themselves or family members, childcare or school closures, or disruption in the workplace, it has been anything but business as usual for the majority of the workforce. However, individuals who find their ability to work impacted because of health concerns or caregiving responsibilities related to the coronavirus may have protections under the law.
The Families First Coronavirus Response Act (FFCRA) allows employees of employers of less than 500 employees to take up to 80 hours of emergency sick leave for qualified reasons, as follows:
- Two weeks (up to 80 hours) of paid sick leave at the employee's regular rate of pay, capped at $511 per day, where the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or
- Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee's regular rate of pay, up to $200 per day, because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor.
Employers of health care providers or emergency responders may elect to exclude employees from eligibility for FFCRA leave, and employers of less than 50 employees may seek an exclusion from the law.
Some companies' policies provide paid leave for those who are forced to take time off in connection with an illness. For those employers, the company policy generally will control the terms of the leave, to the extent that it provides greater benefits than those under the FFCRA. Many employees who work for employers of more than 500 employees are entitled to leave benefits under company policies, but these benefits may be subject to change at the employer's discretion.
State and local laws may also provide protections to employees. For instance, New York State's Paid Family Leave Law also guarantees workers time off to care for a seriously ill family member (including a child, parent, parent-in-law, spouse, domestic partner, grandchild, or grandparent), or to address certain military family needs. The law protects full-time and part-time employees of private employers, regardless of immigration or citizenship status. To be eligible for paid leave, employees must have worked for the employer for six months, or 175 days if an employee works less than 20 hours per week.
In 2020, the law gives up to ten weeks of family leave; in 2021, it will give up to 12 weeks of leave. In 2020, employees can receive 60% of their average weekly pay, up to $840.70. Employees have the right to maintain their healthcare coverage during the leave period and return to work when the leave is over.
In response to the COVID-19 pandemic, New York State enacted a new law that provides a paid leave expansion for workers subject to a government-issued order of quarantine or isolation and physically unable to work remotely, or are parents of minor children subject to a government-ordered quarantine or isolation. Eligible workers must exhaust any emergency sick leave that the employer provides first. The new law requires employers to pay full wages up to $840.70 per week. Workers making more than that may be eligible for additional benefits through a temporary disability insurance program.
While the focus right now is on COVID-19, there may be other reasons an employee needs to take leave, including childbirth or adoption or treatment for other serious medical conditions. Employees continue to be entitled to leave rights under the Family Medical Leave Act and other state and local laws. The federal Family & Medical Leave Act (FMLA) allows a qualified employee to take up to 12 weeks of unpaid leave within a 12-month period if they or an immediate family member requires care for a "serious health condition" or related to childbirth or adoption. The law also entitles a qualified employee to continued health insurance benefits and requires their employer to offer them the same or equivalent position when they return. Qualified employees are those who have worked for at least one year, over 1,250 hours in the prior year, and whose employer has at least 50 employees in a 75-mile radius.
As noted above, local and state laws may provide even greater protections for employees, and additional information regarding protections for employees in California, Illinois, New York, and Washington D.C. is available on Outten & Golden's website.
The attorneys of Outten & Golden's Family Responsibilities and Disability Discrimination Practice Group have decades of experience representing employees who need to take leaves of absence because of pregnancy, caregiving responsibilities, or caregiving responsibilities and are well-equipped to help employees navigate their leave rights during this unprecedented time.