Q&A About the Families First Coronavirus Response Act: What Employees Need to Know

With the passage of the Families First Coronavirus Response Act (FFCRA), employees have questions about what the law does and doesn’t provide to those impacted by the coronavirus and COVID-19.

In this article we’ll answer 7 of the most pressing questions employees face while the U.S. prepares for (and deals with) this historic contagion.

First and foremost, it’s worth noting that this is an actively evolving situation. The passage of the FFCRA on March 18 is the first, but will definitely not be the last, attempt by the federal government to address the negative fallout of the disease. Jackson Spencer Law will provide updates as we learn them in the coming weeks and months.

1. Can I seek FMLA leave if my child’s school or day care has closed?

The Family First Coronavirus Response Act has expanded upon Family and Medical Leave Act protections with special provisions for coronavirus-related leave “to care for the son or daughter under 18 years of age of the employee if their school or place of care has been closed, or the child care provider is unavailable, due to the public health emergency.” This new protection is in place through December 31, 2020.

In a nutshell, employees can qualify for protected coronavirus-related FMLA leave, even if they or their children are asymptomatic, as long as they are caring for a child that cannot go to school or daycare because of coronavirus-related closings. The protection requires that the employee be reinstated to the same or a substantially equivalent position, and, if a position is no longer available due to the economic effect of the public health emergency, the employer has to notify the employee of equivalent positions that come open within the next year.

This FMLA expansion applies to all employers with up to 500 employees and provides for paid leave. Also, any employee who has been employed by a qualifying employer for at least 30 calendar days is now eligible for this coronavirus-related FMLA leave due to school or day care closings (a significant change from the normal FMLA standard). Also, while the first 10 days of coronavirus-related FMLA leave is not required to be paid leave, an employee can use any accrued paid time off available (including vacation or sick leave). But after those first 10 days, the employer must provide paid leave at the lower of $200 per day or two-thirds of the employee’s regular rate. For now, this paid leave is capped at $10,000 total per employee.

Smaller employers (of fewer than 50 employees) also have to provide the coronavirus related FMLA leave, but they may later be given an exception if it would threaten the ability of the company to stay in business.

2. If my employer says I should take two weeks off, do they have to pay me?

Yes, certain employers (those with fewer than 500 employees who normally are required to pay overtime) must provide up to 10 working days of paid sick leave under the Emergency Paid Sick Leave Act, which is a part of the FFCRA. Specifically, starting April 2, 2020, and through December 31, 2020, the FFCRA requires employers to provide paid sick leave in the following cases:

  1. the employee is required to self-isolate because of a government order;
  2. for an employee to self-isolate upon the advice of a doctor due to the coronavirus;
  3. to obtain a medical diagnosis if they’re experiencing symptoms of coronavirus;
  4. to care for another family member who must self-isolate due to government order or a doctor’s advice; or
  5. to care for a son or daughter whose school or day care has closed due to the coronavirus.

Employers of health-care providers and first responders may elect out of this requirement. Full-time employees are entitled to 80 hours of paid sick time and part-time employees are entitled to the average number of hours they work in a 2-week period.

Unlike the expanded FMLA leave, even new hires are eligible for this emergency paid sick leave. Also, this emergency paid sick leave cannot result in a deduction from an employee’s existing sick-leave bank. Similar to the FMLA, however, an employee cannot be terminated for using this emergency sick leave.

Coronavirus-related emergency paid sick leave must be paid at the employee’s regular rate of pay based on the employee’s normally scheduled hours, but is capped at $511 per day if the employee is under isolation, or $200 per day if the employee is having to care for someone under isolation or for a child whose school or day care closed.

Most smaller employers (of fewer than 50 employees) also have to provide the coronavirus-related emergency paid sick leave, but they may later be given an exception if it would threaten the ability of the company to stay in business. However, starting on April 1, 2020, the Dallas city ordinance requiring employers of six people or more to provide paid sick leave is set to start being enforced. Unless the city or a court stops its enforcement, employees in Dallas are protected by this ordinance from retaliation for using their paid sick leave if they are sick, if they are caring for a family member who is sick, or if they or a family member need to seek medical attention.

3. Does an employer have to notify employees of a coronavirus-related illness within the company?

Employers do have a duty to provide a safe and healthy workplace under the Occupational Safety and Health Act (OSHA). Employers also have an obligation not to put employees in situations likely to cause serious physical harm or death. OSHA has released guidance specifically on this topic. Prompt identification and isolation of “potentially infectious individuals” is an employer’s primary responsibility. They also have a duty to protect workers in close contact with the sick person. However, it’s important to know that employers cannot reveal any employee’s private health information and they could face serious legal repercussions for giving other employees the name of an employee who has tested positive for COVID-19. Fortunately, it is possible to notify employees, and keep them safe, without violating anyone else’s privacy.

4. Do I have the right to refuse work-required employee travel?

The CDC has advised against all non-essential travel to China, Iran, South Korea, and now, all of Europe, Ireland, and the United Kingdom. In fact, many CDC officials are recommending social distancing and reduction of virtually all forms of travel, even to areas that haven’t been explicitly identified. While there aren’t laws explicitly protecting an employee’s right to refuse travel, it’s worth a frank discussion with your employer if you’re being asked to travel during the outbreak. Because travel has been identified as especially high-risk, it could potentially lead to OSHA violations for an employer at the very least.

5. What are my rights regarding using (or exceeding) allotted sick time?

The FFCRA has made several changes regarding paid sick leave. Employers with existing paid sick leave policies are required to make the emergency paid sick time available under the act available to all employees in addition to their existing policies. Starting April 2, 2020, emergency paid sick time is available for immediate use by an employee regardless of how long they have been employed. Any emergency sick time granted by the FFCRA will not carry over from one year to the next.

6. What are my legal obligations to notify clients, customers, and vendors if my business is impacted by the virus?

Employers have a duty to provide a safe, healthy work environment, but may not violate individuals’ right of privacy. Employers should avoid personally identifying employees or disclose their diagnosis. However, they can still take action to isolate potentially infected employees, disinfect the workspace, and prevent transmission of the illness. Employers are being asked to contact their local health agency if they learn an employee has been diagnosed with COVID-19. The local health agency will provide guidance on the specific steps employers must take to protect the health and safety of their workplace.

A note on business continuity and contracts: If COVID-19 interrupts the delivery of services or products, which it most likely will, businesses may have to break contracts. Now that the World Health Organization has declared COVID-19 a global pandemic and countries are declaring national emergencies, businesses may be able to rely on Force Majeure (Superior Force) clauses. Government restrictions on the movement of goods and people typically qualify as a force majeure event under most interpretations of the term.

7. If I am laid off because of COVID-19, how do I collect unemployment benefits?

If you live in Texas, you may be entitled to unemployment benefits if you were laid off, furloughed or put on reduced hours. The state has waived the “waiting week” provision that previously held back one week of benefits until after they found a new job or hit their benefits maximum. The state is also suspending the requirement that unemployed individuals have to register with the state jobs site and show they are actively applying for new jobs. Those seeking unemployment benefits can register online or over the phone by calling 800-939-6631. (Note: the TWC site has been receiving high traffic, so if the link doesn’t work, try at a non-peak hour.)

In addition, the Equal Employment Opportunity Commission (EEOC) has also issued guidance regarding employee rights under the Americans with Disabilities Act (ADA) regarding the COVID-19 pandemic.

If you think your rights as an employee have been violated while our country faces COVID-19, contact our office for more information. We’ve been standing up for employees for years, and we have no intention of stopping now.