As employees return to work and resume operations, they may not be ready or able to return to physical workplaces. Workers could be unwilling to return to work because they are sick; are high-risk individuals; are caregivers for sick family members; are caregivers for children if schools or daycare centers are closed; have at-risk people at home, such as immunocompromised family members; or simply afraid to come to work because of fear of possible exposure.
Over the past several months, many employees have faced new reasons to take leave – leaving many employers the challenge of managing an employee’s right to protected leave while ensuring enough staff is available to maintain company operations. Below are the most common pandemic leave considerations employers need to be aware of and Archbright’s answers to frequently asked questions.
Families First Coronavirus Response Act (FFCRA)
The FFCRA, effective on April 1, 2020, and sunsetting on December 31, 2020, applies to private employers with less than 500 employees and all state and local public employers. It contains two significant provisions for employers to be aware of: Emergency Family and Medical Leave Expansion Act (EFMLA) and Emergency Paid Sick Leave Act (EPSL). Employees excluded from EFMLA and EPSL include emergency responders who are necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19.
Emergency Family and Medical Leave Expansion Act (EFMLA)
Employees are eligible for up to 12 weeks of paid emergency family and medical leave if they are unable to work or telework due to a need for leave to care for their child under 18 years old because their child’s school or daycare is closed due to COVID–19
For this one emergency qualifying reason, FFCRA amends and expands the federal FMLA temporarily (through December 31, 2020) for private employers with fewer than 500 employees and all state and local public employers. It lowers the eligibility requirement to extend leave to an employee that has worked for an employer for at least 30 days (instead of 12 months that is typically required under FMLA). EFMLA only adds a qualifying reason to the existing FMLA; it does not mean employees are eligible for an additional 12 weeks of FMLA leave in a 12-month period. If an employee has already taken 12 workweeks of FMLA during the preceding 12-month period, the employee will not be entitled to additional FMLA.
The first ten days of EFMLA are unpaid; however, the employee may use any other available paid leave, including Washington paid sick leave, PTO, and/or Emergency Paid Sick Leave. After ten days, employers are required to pay employees at least 2/3 of their regular pay during the leave, up to a maximum of $200 per day and $10,000 total. Employers may be entitled to a tax credit to offset this expense.
Emergency Paid Sick Leave Act (EPSL)
Emergency Paid Sick Leave will be available for employees regardless of tenure, in addition to any other paid leave to which an employee is already entitled (such as paid sick leave). Employers cannot require employees to use other employer-provided paid leave before taking EPSL. Full-time employees are eligible for up to 80 hours of paid sick leave, and part-time employees are eligible for a prorated amount based on their average hours worked over two weeks.
Employees are eligible for emergency paid sick leave paid at their regular rate of pay, up to $511 per day and $5,110 total, if they:
- Are subject to a federal, state, or local quarantine or isolation order related to COVID-19;
- Have been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or
- Are experiencing symptoms of COVID-19 and are seeking a medical diagnosis.
Employees are eligible for emergency paid sick leave at 2/3 of their regular rate of pay, up to $200 per day and $2,000 total, if they:
- Are caring for an individual subject to quarantine order or advised by a health care provider to self-quarantine due to concerns related to COVID-19 (an “individual” includes an immediate family member or someone who regularly resides in the employee’s home, or if the relationship with the individual creates an expectation that the employee would care for them, and that individual depends on the employee for care);
- Are caring for a child whose school has been closed, or whose childcare provider is unavailable due to COVID-19 precautions; or
- Are experiencing any other “substantially similar condition” specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
Employers may be entitled to a tax credit to offset this expense. Please see the IRS guidance regarding tax credits and consult with your tax advisor with any questions.
Family & Medical Leave Act (FMLA)
Under the federal FMLA, eligible employees may take unpaid leave for up to 12 workweeks in a 12-month period due to their own serious health condition that makes them unable to perform the essential functions of the job or to care for the employee’s spouse, child, or parent who has a serious health condition.
An employee diagnosed with COVID-19 would likely be considered to have a “serious health condition” even if they are not actually sick. However, an employee taking leave to care for a spouse, child, or parent with COVID-19 must be providing caregiving responsibilities to be eligible for FMLA. An employee who simply has a family member test positive would not necessarily be eligible for FMLA unless the employee is providing care for the covered individual.
Washington Paid Family & Medical Leave (PFML)
Under the Washington Paid Family and Medical Leave program, an eligible employee could request paid leave for up to 12 workweeks in a 12-month period due to their own serious health condition that makes them unable to perform the essential functions of the job or to care for their family member who has a serious health condition. PFML defines a family member as a spouse, registered domestic partner, child (biological, adopted, or foster child, a stepchild, a child’s spouse, or a child to whom the employee stands in loco parentis, is a legal guardian, or is a de facto parent, regardless of age or dependency status), grandchild, grandparent (or spouse’s grandparent), parent (or spouse’s parent), and sibling.
Like FMLA, an employee diagnosed with COVID-19 would likely be considered to have a “serious health condition” even if they are not actually sick. However, an employee taking leave to care for a family member with COVID-19 must be providing caregiving responsibilities. An employee with symptoms of COVID-19 or exposed to COVID-19 would likely not be eligible for leave under PFML.
Americans with Disabilities Act (ADA)
Employers must reasonably accommodate employees under the Americans with Disabilities Act (ADA) and state disability laws. The ADA prohibits discrimination by an employer against any “qualified individual with a known disability” regarding job applications, hiring, advancement, termination, compensation, training, or other terms, conditions, or privileges of employment. Employers have an obligation to consider “reasonable accommodation” through what is known as an “interactive discussion” with the employee.
The obligation to reasonably accommodate a known disability has remained in effect during the COVID-19 pandemic. Protections under ADA may include those high risk for the virus, or those with a medical condition that may prevent them from wearing a mask or face covering. The interactive process requires both employer and employee to discuss what options could be considered to allow the employee to perform the essential functions of their job. It is important to document these discussions, and what accommodations have been considered or tried, including what has worked and what hasn’t. The obligation to grant a reasonable accommodation under the ADA continues after an employee exhausts other protected leaves, such as FMLA or FFCRA leave.
Washington Governor’s High-Risk Proclamation
On April 13, 2020, Washington Governor Inslee issued a proclamation temporarily expanding accommodation for employees who are at high risk for COVID-19, which may expand the employer’s obligation under existing disability laws. The proclamation adopts the Centers for Disease and Prevention (CDC) definition for employees considered at higher risk for COVID-19.
The risk for severe illness from COVID-19 increases with age, with those age 65 and higher to be considered at highest risk. People of any age with the following conditions “are at increased risk” of severe illness from COVID-19:
- Chronic kidney disease
- COPD (chronic obstructive pulmonary disease)
- Immunocompromised state (weakened immune system) from solid organ transplant
- Obesity (body mass index [BMI] of 30 or higher)
- Serious heart conditions, such as heart failure, coronary artery disease, or cardiomyopathies
- Sickle cell disease
- Type 2 diabetes mellitus
Employees that meet any of these definitions may seek accommodation from their employer. Accommodations may include alternative work assignments, telework, remote work locations, or when an alternative work arrangement is not feasible – allowing the use of paid time off or unemployment benefits. Also, Governor Inslee’s proclamation requires employers to fully maintain employer-provided health insurance benefits during this leave of absence. Under the Governor’s proclamation, employers may NOT ask for medical verification to support the need for accommodation, including leave, for employees “at-risk” for COVID-19.
People of any age with the conditions identified that “might be at increased risk” for severe illness from COVID-19 may also request an accommodation. Employers must enter the interactive discussion with these employees, which may include medical verification to determine reasonable accommodation.
FAQs: How Do These Leave Considerations Work Together?
Below are some of the most common questions employers have regarding when an employee may be eligible for leave, and which leave(s) may apply.
What If an Employee Has Symptoms of COVID-19?
An employee with symptoms of COVID-19 may or may not be sick with a “serious health condition” that prevents them from working. Therefore, leave under FMLA, or PFML may or may not apply. However, leave under FFCRA would apply if the employee is seeking a diagnosis or has been advised to quarantine.
What Happens If an Employee Tests Positive for COVID-19?
Even if the employee is not ill, an employee who has tested positive for COVID-19 must be directed not to enter any physical workplace. If the employee is able to telework, it is possible an employee could continue to work. Like the question above, an employee who simply tests positive for the virus may or may not have a “serious health condition” that prevents them from working, so FMLA and PFML may or may not apply. However, an employee who tests positive would be required to quarantine, making them eligible for leave under the FFCRA.
What If an Employee Is Afraid to Return to Work?
Under normal circumstances, an employee cannot refuse to work. If an employee refuses to report to work due to COVID-19 but has not tested positive, does not have symptoms, and is not caring for someone with COVID-19, there may not be a legal reason to excuse the employee’s absence – at least on the surface. In addition to employees that have contracted the virus, additional accommodations may be required for employees considered to be “high risk” for contracting the virus, as outlined above. Employers must also keep in mind mental health conditions such as anxiety, PTSD, or being scared or anxious to come to work. It may not appear to be a reasonable fear to the employer, but the ADA equally protects mental health conditions, and reasonable accommodation must be considered.
What If an Employee Cannot Wear a Face Covering Due to a Medical Reason?
If an employee cannot wear a mask or face covering due to a health concern or a disability, accommodations should be considered. Employers should enter the interactive discussion to determine if an accommodation can be made, which may include working remotely or moving to a workstation that may be determined to be “working alone.” It is important to note, however, that not wearing a face-covering in the workplace is not a reasonable accommodation, as employers have a responsibility to protect all employees. If, after exhausting all possibilities, an accommodation is not possible, the employee may be entitled to leave as a reasonable accommodation.
What If an Employee Refuses to Wear a Face Covering?
Employers need first to determine why the employee refuses to wear the face-covering. If they refuse due to a health concern or a disability, accommodations for the employee should be made. If for another reason, employers should seek to understand and address the employee’s concerns. However, employers should enforce the requirement to wear a face-covering just as they would any other required PPE, such as safety glasses or steel-toed shoes, and discipline accordingly.
Can I Require an Employee to Self-Quarantine Because They Have Traveled or Attended a Large Gathering?
It depends. In general, employers may require employees to report if they have traveled to a CDC declared restricted area, and if the employee has had contact with an infected, contagious person to stay home and self-quarantine. In most cases, however, traveling or attending a large gathering will not create the need for protected leave. However, health officials have stated that anyone attending a large gathering where physical distancing (at least 6 feet) hasn’t been followed, and masks haven’t been worn by everyone present should consider themselves exposed to COVID-19. In this case, since this guidance is from a public health official, leave protections under the FFCRA may apply.
For more detailed information about each leave below, KeyNotes and sample policies are available to eligible Archbright members in our HR Toolkit or the COVID Resources page. Archbright members can login and visit our COVID-19 Resources page under Member Home. Eligible members are also encouraged to call the HR Hotline with any additional questions. Non-Members, just complete this form to access our COVID-19 Resources.