Practical Considerations for Employers Dealing with COVID-19 Related Illness and Shutdown

By Carlile Patchen & Murphy LLP

 

 

On March 18, 2020, President Trump signed the Families First Coronavirus Response Act (FFCRA), effective April 2, 2020, bringing extended family medical leave and paid sick leave to many employed by small businesses. So, what now? How does this new legislation impact employers and employees alike, and how do Ohio’s expanded unemployment benefits interact with the FFCRA? Some of the answers to these questions will ultimately depend on your individual business and its workforce, and some will also need to play out a bit in order to understand the FFCRA’s “fine print”. Below are some points to consider, however, as the country enters this new phase of COVID-19 mitigation.

1. Who Gets Paid Sick Leave? Generally speaking and as of April 2nd, any employee of a private employer with fewer than 500 employees, in addition to all public agency employers. An eligible employee is anyone who is employed by a covered employer, and there is no minimum amount of employment requirement, e.g., 30 days of employment. The employee is eligible for and must receive paid sick leave of up to 10 days (80 hours of work for full-time employees and the average number of hours an employee works on a two-week basis for part-time employees), for the following reasons:

a. Employee has been diagnosed with COVID-19 or is required to quarantine (sick leave payment at the employee’s full regular rate but capped at $511 per day or $5,110 total);

b. Employee has been advised by their health care professional to self-quarantine (sick leave payment at the employee’s full regular rate but capped at $511 per day or $5,110 total);

c. Employee is experiencing COVID-19 symptoms and is seeking a diagnosis (sick leave payment at the employee’s full regular rate but capped at $511 per day, or $5,110 total);

d. Employee is caring for an individual who has been quarantined (sick leave payment is 2/3 the employee’s regular rate and capped at $200 per day or $2,000 total);

e. Employee is caring for a son or daughter whose school or place of care has closed due to the outbreak (sick leave payment is 2/3 the employee’s regular rate and capped at $200 per day or $2,000 total); or

f. Employee is experiencing substantially similar conditions as described above and to be specified by the Secretary of Health and Human Services (sick leave payment is 2/3 the employee’s regular rate and capped at $200 per day or $2,000 total).

A key takeaway here is that employers are not permitted to require an employee to utilize their accrued and available PTO or sick leave first before taking this benefit.

The provisions of this law sunset on December 31, 2020 and unused paid sick time does not carry over to another calendar year. For a discussion on the tax credits available to employers that pay employees pursuant to this law, please see the article authored by CPM attorney Jordan Butler, available at “Tax Credits Under The Families First Coronavirus Response Act“.

2. What are the implications for expanded family and medical leave? This benefit is again extended to employees of private employers with fewer than 500 employees, in addition to public agencies. This provision of the law, however, permits an employer to exclude employees who are health care workers or emergency responders, and this benefit requires an employee to have been on payroll for at least 30 days in order to be eligible. The expanded leave allows an eligible employee to use up to 12 weeks of partially paid family leave in order to provide care for a son or daughter under 18 years of age if the child’s school or place of care has been closed, or their childcare provider is unavailable, due to an emergency with respect to COVID-19, as declared by governmental authority.

Leave must be paid to eligible employees as follows:

  • The first 10 days of leave is unpaid (although the employee may qualify for the 10 days of paid sick leave during this time).
  • The remainder of the leave is paid at a rate of not less than 2/3 the employee’s regular rate of pay, but that amount is capped at $200 per day or $10,000 total.

FMLA provides job protected leave to employees, however the provisions of the expanded family medical leave regarding job protection are less stringent and have several exemptions, most notably for employers with 25 or fewer employees.

There are many details that require additional regulation to be issued by the U.S. Department of Labor, which are expected soon. There is also a broad exemption for employers with fewer than 50 employees to be exempt from both the expanded family and medical leave and the paid sick leave obligations if compliance would jeopardize the viability of the business, however how that determination is made and how an employer makes such an application for exemption have not been addressed as of yet. Details will likely be forthcoming but employers need to gear up to adjust their policies to accommodate the new paid leave provisions.

The provisions of this law sunset on December 31, 2020. For a discussion on the tax credits available to employers that pay employees pursuant to this law, please see the article authored by CPM attorney Jordan Butler, available at “Tax Credits Under The Families First Coronavirus Response Act“.

3. The State of Ohio expanded unemployment compensation. BBy Executive Order of Governor DeWine, Ohioans who are unemployed for reasons related to COVID-19 (other than self-imposed quarantine) will be able to file for and receive unemployment compensation without a 7-day waiting period. Employers are asked to have employees complete the form at http://www.odjfs.state.oh.us/forms/num/JFS00671/pdf/, in order to streamline this benefits process. The employee must otherwise be eligible for unemployment compensation in order to receive these benefits, i.e., the employee has worked in covered employment for at least 20 workweeks in the employee’s base period. Employee benefits paid as a result of COVID-19 qualifying event will not be charged to the employer’s experience for purposes of unemployment insurance premiums. In addition, employers should review their group health insurance obligations and determine whether the unemployment for a temporary period requires COBRA eligibility notices to be distributed.

So, where does this leave Ohio employers and employees?

While there are safety nets being thrown to those many feel need it most, only time will tell as to whether they are big enough for employees but not so big that they crush small business. One thing is clear, there is no one-size fits all for every employer affected by these laws. Employers that have never had to contend with FMLA and its regulations or paid leave, have precious little time to get their respective houses in order.

CPM attorneys have represented small and medium-sized business for 53 years in this community and are skilled at providing practical advice for business owners experiencing changing circumstances. If you have specific questions regarding the implementation of these new laws and their affect on your business, we are happy to be a resource for you. If you have any questions please contact your attorney at Carlile Patchen and Murphy or any member of the Employment Law Group.

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