With the landscape of the American workplace changing quickly due to the coronavirus pandemic, a number of new requirements are being placed on businesses and their employees by civil authorities. Working together is vital in understanding and getting ahead of this ever-evolving situation. It’s critical that human resource teams, owners, and managers collaborate to ensure that their businesses remain compliant with federal leave laws, that policies are applied fairly, and that the needs of their employees are being met.

What impact does the Families First Coronavirus Response Act have on leave policies?

In response to the unprecedented number of workers subject to government-issued stay-at-home orders or self-quarantine directives from physicians and those battling COVID-19, the federal Families First Coronavirus Response Act was signed into law and takes effect on April 2, 2020. In response to the threat of coronavirus and its impact on American families, the Act makes several changes to existing paid leave requirements and the Family and Medical Leave Act (FMLA). The specific impacts to various leave policies are discussed in each of the following sections.

In all cases of mandated paid sick leave, the employer will initially pay for the leave and then claim 100% of what is paid out on a quarterly basis through their payroll taxes. If the payments are in excess of your tax liability, this would be treated as an overpayment. The Department of Labor will send out notices to all employers regarding the Act that must be posted in the workplace and employees must be notified of the Act.

Can employees use paid sick time or other paid leave during quarantine or while recovering from coronavirus?

The Families First Coronavirus Response Act mandates that employers with fewer than 500 employees provide paid leave to all workers under quarantine orders or who have coronavirus. Full-time employees are entitled to 80 hours, while part-time employees are entitled to the equivalent of 2 weeks of work, based on their normal hours (i.e. an employee working 20 hours per week is entitled to 40 hours total).

Leave for an individual is paid at 100% of the normal wage and is in addition to any PTO or paid sick leave that the employee has already accrued. The cap for individual paid leave is $511 per day or $5,110 total for the leave period.

An employee may also receive paid sick leave to care for a family member who is subject to a stay-at-home or physician quarantine order, or a child whose school or daycare has closed due to a public health emergency. Family sick leave is paid at 66.67% of the normal wage and is in addition to any PTO or paid sick leave the employee has already accrued. The cap for family paid leave is $200 per day or $2,000 total for the leave period.

Employers with 50 or fewer employees may apply for an exemption from this regulation through the Department of Labor, but specific guidance and instructions for applying for exemption have not yet been announced.

Does coronavirus qualify for FMLA leave?

While traditional FMLA grants eligible workers of employers with 50 or fewer employees the right to take up to 12 weeks of unpaid, job-protected leave per year for family or medical reasons. Under the Families First Coronavirus Response Act, FMLA has been expanded to include all employers with 500 or fewer employees. During the coronavirus pandemic, it’s imperative that your HR team and managers are remaining compliant with these new FMLA regulations.

Any employee suffering from a “serious health condition” is eligible for FMLA if they have 30 days of service. FMLA defines a serious health condition as:

A period of incapacity lasting more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also includes: (i) treatment two or more times by or under the supervision of a health care provider (i.e., in-person visits, the first within 7 days and both within 30 days of the first day of incapacity); or, (ii) one treatment by a health care provider (i.e., an in-person visit within 7 days of the first day of incapacity) with a continuing regimen of treatment (e.g., prescription medication, physical therapy).

Since coronavirus causes severe flu-like symptoms and an extended recovery period, COVID-19 falls under the definition of a serious health condition as outlined.

Does FMLA cover an employee’s absence to care for a family member with coronavirus?

Assuming that an employer is subject to FMLA regulations and the employee is otherwise eligible for FMLA, the employee is eligible to use FMLA to stay home and care for an eligible family member (spouse, child, or parent) while they are recovering from a serious health condition, such as coronavirus. The employee must submit medical certification of the family member’s health condition and the need for care to ensure that their request for FMLA is approved.

The medical certification must include language that stipulates that the employee is “needed to care for” their sick family member, which can encompass both physical and psychological care.

Does FMLA cover leave due to school and daycare closures?

Understanding the unique situation that coronavirus has created in America, the Families First Coronavirus Response Act expands FMLA to cover employee leave due to school and child care provider closures. This allows a parent to provide care for their children from home for up to 12 weeks without fear of losing their job.

Will I be paid if on FMLA due to coronavirus?

Under the Families First Coronavirus Response Act, the first 10 days of FMLA are unpaid, but the employee may opt to use accrued paid sick leave or PTO during this period. The remaining 10 weeks of leave are paid at 66.67% of the employee’s regular salary, up to $200 per day or $10,000 in total.

Do employees with coronavirus qualify for short-term disability benefits?

Short-term disability policies and provisions differ from employer to employer. Most policies have clearly defined parameters for when benefits become available to an employee.

Be sure to check with your short-term disability benefit administrator to confirm whether coronavirus rises to the level of a “short-term disability” under the definition of your policy. If you want to make changes to your short-term disability benefits or expand the coverage of your plan, you should talk to your plan administrator immediately to discuss your options.

Can I require a doctor’s note from an employee before allowing them to return to work after recovering from coronavirus?

Under the EEOC’s pandemic flu guidance, employers may require employees returning to work after recovering from coronavirus to provide a letter from their doctor stating that they have been medically cleared to return to work. For as long as this guidance remains in effect, you may ask employees to submit a letter or email from their physician stating the employee may return to work. If the current situation worsens, medical practices and hospitals may become increasingly busy or operate on limited hours, making it very difficult or impossible for employees to obtain doctor notes. In this case, you may need to be more flexible with this requirement.

We’re in this together

As the coronavirus situation continues to evolve, ensuring that your policies and procedures are compliant with updated employment laws is vital. Sheakley’s Professional Employer Organization (PEO) experts will continue to provide important updates as they are known.

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