The Covid-19 pandemic has upended the American workplace in more ways than one. Layoffs, restructuring, new telecommuting arrangements, and enhanced safety protocols are just some of the challenges that American workers have had to face since the beginning of 2020. One of the challenges that many workers have been affected by during the pandemic is the way in which “leave” has been impacted by new Covid-related regulations. Both paid sick leave and protected family and medical leave have been affected by changes to federal law implemented in the Spring of 2020 and clarified in the Autumn of this year.
If your paid sick leave and/or family and medical leave options have been negatively impacted by the pandemic, it is possible that your employer is not adhering to recent changes in federal law. Should you have questions about your work-related rights to leave, don’t hesitate to speak with an experienced employment lawyer about your options. You may be entitled to more time and/or compensation than you’ve been initially led to believe.
The Families First Coronavirus Response Act
At the beginning of April 2020, the U.S. Department of Labor announced a temporary rule issuing regulations pursuant to the Families First Coronavirus Response Act (FFCRA). Both the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act are parts of the FFCRA’s broader effort. Most notably, the FFCRA assists small American companies – that employ fewer than 500 workers – with providing their employees with paid medical and family leave related to the effects of Covid-19. The logic behind the passage of this Act was that if employers were reimbursed dollar-for-dollar, they would incur less financial difficulty if/when their employees needed to take Covid-related family and/or medical leave. Even more importantly, ill workers, workers caring for ill loved ones, and workers grieving the loss of those who have passed away due to Covid are not forced to choose between their family and medical needs and their paychecks as a result of this Act. At present, this regulation is set to expire on December 31, 2020, although it may be extended into 2021.
It is worth noting that many state and local governments have expanded upon the framework and timeline originally outlined by the FFCRA. For example, California recently enacted new emergency temporary standards related to the pandemic. These standards clarify employer obligations related to the Covid-19 outbreak and went into effect on November 30, 2020. Unlike the FFCRA, which will expire at the end of the year unless extended, California’s new regulations will remain in effect (at minimum) until May 30, 2021.
FFCRA Eligibility and Exceptions
If an American worker is eligible for FFCRA protection, they are generally entitled to take up to 80 hours of paid sick leave at their regular pay rate, in the event that they are quarantined pursuant to a government order or a health care provider’s direction and/or are symptomatic and seeking a diagnosis. They may alternatively take up to 80 hours of paid sick leave at two-thirds of their regular pay rate because of a “bona fide need” to care for a family member who is quarantined or a minor child whose school or care provider is unavailable due to Covid-19. Finally, eligible workers are entitled to a maximum of 10 additional weeks of paid expanded medical and family leave at two-thirds of their regular pay rate if they are unable to work due to a “bona fide need” to care for a child whose school or child care provider is unavailable due to Covid-19.
Although most businesses that employ fewer than 500 workers are covered by the FFCRA, there are some exceptions for businesses that employ fewer than 50 workers. Covid-related leave isn’t always foreseeable. However, when it is foreseeable, workers are required to provide reasonable notice to their employers in re: leave. Employers are empowered to enforce reasonable notice procedures (following the first day of paid sick leave) if a worker wishes to continue benefitting from protected paid leave.
FFCRA – Clarification by the Department of Labor
In September of 2020, the U.S. Department of Labor issued some revisions to the FFCRA in an effort to clarify both employer obligations and workers’ rights under the Act. Most notably, these revisions clarified that employees may be required to obtain employer approval if they wish to take any of their protected medical and family leave intermittently. Additionally, the revisions clarified that workers must provide supporting documentation, when requested by their employers, related to their leave and they must provide said documentation as soon as is practicable under the circumstances. Finally, the Department of Labor reaffirmed that FFCRA protection is only available to employees who have work available to them. In the event that an employer has had to initiate layoffs, for example, laid-off workers are not entitled to paid leave under the FFCRA.
Again, it is worth noting that state and local laws may differ in their requirements, eligibility, and enforcement of Covid-related leave protections. As a result, it is generally a good idea to avoid making assumptions about the kind of leave and compensation you are or are not entitled to until you’ve clarified your situation with an experienced employment law attorney.
Legal Assistance Is Available
Too often, workers in need of family and/or medical leave “go without” either because they are unaware of their rights or they are concerned that benefitting from those rights will imperil their job security. It’s important to understand that workers’ rights are codified for a reason. If you are entitled to leave, you should be able to take that leave for an eligible reason, without fear that your job will suffer as a result. If you need to take leave as a result of Covid-19, the birth or adoption of a child, the loss of a loved one, a new medical diagnosis, or another reason protected under the law, don’t be afraid to ask a lawyer about your options. You can either call 800-337-7436 or fill out our firm’s online contact form to speak with a trusted attorney today. Consultations are free and “stings-free.” We look forward to assisting you with your leave-related needs.