By Adrienne Catherine H. Beauregard-Rheaume, Esq.
Crazy times, and our collective health should be at the forefront of everyone’s minds. With that as a given (I hope!), I figured it may be useful to check in on one of my favorite areas of law, employment, to see what employers and employees may expect in the coming weeks with all of this uncertainty around us. BTW, pictured is an actual image of my home office and my coworker, Clover, who likes to roll in dead animal carcasses if given the opportunity.
If you are laid off (no expectation of being re-hired) or furloughed (your employer expects to get you back on the books after a period of time and maintains the status quo for health benefits), there is still the availability of applying for and receiving unemployment benefits. But what more is there now in the time of COVID-19?
Congress passed, and Trump signed, the Families First Coronavirus Response Act a few days ago. The Act becomes effective no later than April 2, 2020, and the general idea is to provide employees affected by Corona a little extra cushion to make it through these tough days ahead. There are two distinct parts of the Act: the 12 week leave for child care and the 10 days of sick leave.
12 Weeks Leave for Child Care
Employers with less than 500 employees have to provide employees with up to 12 weeks of leave to care for their kids under the age of 18 whose school or child care provider is closed. The first ten days of the leave does not have to be paid, but you are allowed to use your accrued PTO. The remaining 74 days you have to be paid at least 2/3 your normal pay, but it can’t be more than $200/day or $10,000 total. Employers will be repaid for these partially paid leaves vis-à-vis tax credits, so everyone makes out (except maybe the Feds but who cares).
The Act also has teeth when it comes to making sure your position is there for you when you’re ready to come back. For those familiar with FMLA, it functions in a similar way. If you take the leave and are denied return, it’s time to give your employment lawyer of choice (I hear Beauregard, Burke & Franco is top-notch) a call. There is a carve out though for employers with less than 25 employees. If within a year that the COVID-19 emergency is declared to be at an end or 12 weeks after leave begins the employer made reasonable efforts to restore the employee to her position or an equivalent one AND the position no longer exists due to a change in the economic or operating conditions of the employer, then the employee is out of luck.
10 Days of Sick Leave
The Act also provides employees with ten days of paid sick leave if:
- The employee is required by law to quarantine or isolate because of COVID-19;
- The employee has been told by a health care provider to quarantine because of COVID-19;
- The employee is experiencing COVID-19 symptoms and is seeking a diagnosis;
- The employee is caring for someone who has been quarantined by law or a health care provider because of COVID-19;
- The employee is caring for a child whose child care facility or school has been closed because of COVID-19; or
- The employee is experiencing a substantially similar condition to COVID-19 as defined by government agencies.
The pay that the employee is to receive is a little wonky. If the employee is staying home for her own health issues, then she gets her regular pay, capped at $511/day, $5,110 total. If the employee is staying home to take care of someone else, she gets 2/3 her regular rate, capped at $200/day, $2,000 total. And no shenanigans trying to get the employee to use other PTO – including regular sick time – before this paid sick time. For this leave, the Act leaves open the possibility that the employer will get repaid in tax credits but no guarantee.
Employers take note: the Labor Secretary should have a notice prepared within the next couple days that you have to display along with all of those other employee rights posters that you hopefully already have hanging in a break room.
The Law Offices of Beauregard, Burke & Franco is a civil litigation firm specializing in civil rights, business, malpractice, employment, municipal, and personal injury law. Employment law is our jam, having represented employers and employees alike. This blog is not meant as legal advice, nor should you take it as such. Each situation is unique and the discussion here may not apply to you. If you have an employment law issue that you need to have addressed, you should reach out to an experienced attorney like those here at BBF. Stay healthy, everyone.