We are dipping into the mailbag this week, and with the ongoing crisis and uncertainty taking place with the COVID-19 coronavirus pandemic, our law firm is receiving a lot of questions regarding federal employee rights in the workplace as they relate to COVID-19.
The U.S. Department of Labor (“DOL”)’s new act regarding the coronavirus (“COVID-19”), Families First Coronavirus Response Act (“FFCRA”), went into effect on April 1, 2020.
The FFCRA provides several new benefits to employees impacted by COVID-19, including paid sick leave and expanded family and medical leave.
The DOL’s Wage and Hour Division (“WHD”) issues and enforces the FFCRA’s requirements. The requirements are temporary, in that they will be effective through December 31, 2020.
As concerns regarding the ongoing COVID-19 continue, many employees have questions regarding their employment status and their options moving forward to stay not only healthy, but also financially stable. This new act, FFCRA, may be able to assist.
The following are some frequently asked questions and answers relating to employees’ rights and responsibilities given the circumstances.
Am I a covered employee, and if so, what does the new law, FFCRA, provide for me?
Depending on where you work, you may be covered by the FFCRA.
The FFCRA provides paid sick leave to certain public employees, and private employers with less than five hundred (500) employees through the Emergency Family and Medical Leave Expansion Act (“EFMLEA”) and the Emergency Paid Sick Leave Act (“EPSLA”).
The EFMLEA provision only applies to certain public employers and private employers with less than five hundred (500) employees. This part of the FFRCA, which provides sick leave to an employee who is taking care of a family member who is impacted by COVID-19, does not apply to most federal employees because federal employees are covered by Title II of the Family and Medical Leave Act (“FMLA”), which was not amended by FFCRA.
The FFCRA provides paid leave and for eligible employee, paid expanded family and medical leave:
- Up to two (2) weeks of paid sick leave at your regular pay rate (but no more than $511 a day or $5,100 over the course of the two (2) weeks) if you are unable to work because you are quarantined (and/or experiencing COVID-19 symptoms and seeking a medical diagnosis); or
- Up to two (2) weeks of paid sick leave at two-thirds of your regular pay rate if you need to take time off to care for an individual subject to quarantine or to care for a child whose school or child care is closed for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor; and
- Up to ten (10) weeks of paid expanded family and medical leave at two-thirds of your regular pay (but no more than $200 a day or $10,000 over the course of the ten (10) weeks)for an employee who has worked at least thirty (30) days need to stay home for a child whose school or child care is closed due to COVID-19. The first two (2) weeks of this (the EFMLEA) are unpaid, but you can use other paid time off or personal time that you may have available.
I have been advised to use personal leave for coronavirus related issues and wondered about the Paid Sick Leave in the Families First Coronavirus Response Act: what qualifies for paid sick time under the FFCRA?
You are able to utilize paid sick time under the FFCRA is you are unable to work, or unable to telework, if you:
- Are under a Federal, State, or municipal quarantine or social isolation order was issued related to COVID-19;
- Have been advised by a doctor to self-quarantine due to being exposed to COVID-19;
- Are seeking medical diagnosis due to having COVID-19 symptoms;
- Are caring for someone who has been subject to a quarantine or isolation provision issued by Federal, State, or local laws;
- Are taking are of a child who is out of school or child care because of COVID-19; or
- Are experiencing any other substantially-similar conditions.
What if I do not have COVID-19 and I am not quarantined due to being exposed to COVID-19? I just want to socially isolate to prevent the spread of the virus.
If your agency has not permitted and you have not requested telework already, then you should request to telework. Even if your agency is typically strict about granting telework agreements, recent recommendations from the Office of Management and Budget (hereinafter “OMB”) have urged agencies to be flexible in permitted telework for eligible employees. This is in efforts to balance the need to continue mission-critical work, while also increasing social distancing.
Indeed, teleworking (or “working from home”) allows employees to continue their job without having to come into contact with others. The federal government is doing their best to remain open and operational, while also ensuring the health and safety of their employees.
For approximately one million federal employees, however, telework is not an option whatsoever simply due to the nature of their work. That is, employees who are required to be physically present to perform the essential functions of their job would not have anything to do at home, because they cannot perform their job at home. Air Traffic controllers or government police persons are good examples of this. Moreover, many employees who work with classified information every day are simply unable to telework due to the need to access that material.
The OMB has stated that in order to achieve its goal of continuing work while maximizing social distancing in line with The President’s Coronavirus Guidelines for America, the Government should adjust its operations to minimize physical contact as much as possible.
Your agency may adjust its schedule so that half of your workforce goes in during a designated time. If you have an underlying condition, you may be able to request, as a reasonable accommodation, to perform different duties, such as administrative duties, from home. You may also have to utilize your accrued time off, or request leave without pay (“LWOP”), if you are not comfortable going into work.
How may my status change while working at home? Are there pitfalls to be avoided?
If you are performing the same essential duties of your job at home that you perform in the office, there will be no changes to the status of your employment. You should be receiving the same benefits and rate of pay as you did in the office.
You should, therefore, continue to be as productive working remotely as you were when you were at your desk. Employers may be monitoring even closer now that they are not able to see their employees in person, to ensure that an employee is continuing to work, and not just taking the time off. Avoid being distracted or not responding to emails and phone calls. Thus, by proving that you can work effectively at home, your employer may trust you to do so continuously in the future.
Have my employment options expanded, diminished or remained the same now that I am working from home? Are performance requirements altered?
For individuals performing the same tasks that they perform at home as they did in the office, employment options and requirements have not changed. Your agency still expects you to communicate with employees, contractors, or outside individuals as you regularly would in the office.
Performance requirements should not be altered, however, agency heads may be monitoring productivity more closely than usual to ensure that employees are completing their required tasks. As such, it is important to stay on top of your work and not get distracted by anything in your home that could take you away from your essential tasks.
I am a high risk individual, what are my options if I am required to go into the office?
Many individuals, such as high-risk individuals who suffer from immunocompromised disorders, need to know what their options are if they are required to go into an office.
COVID-19 is not a disability as defined by the Americans with Disabilities (“ADA”), as it is not on “ongoing” medical condition. However, if you have underlying medical conditions that are covered by the ADA, then you may be able to request reasonable accommodations due to your disability. You can request telework, for example, as a reasonable accommodation for your disability (if your agency is not granting it otherwise). As indicated above, telework requests should be liberally granted, per OMB guidance.
If telework is not available due to the nature of your work, then you may need to request to use leave without pay (“LWOP”) or FMLA leave. Under the FMLA, you can choose whether you would like to use any paid time off that you have accrued such as sick or vacation time. If you are not covered by FMLA, or have already used your FMLA for the year, then you can request to use LWOP.
What should I do if my employer is not following the regulations of FFRCA? What should I do if I am fired in retaliation for utilizing the provisions of FFRCA?
It is illegal to withhold paid sick leave for a qualified employee, and illegal for an employer to terminate an employee in retaliation for utilizing FFRCA paid sick leave.
The DOL is responsible for enforcing the rights of employees who receive or are eligible to receive paid leave benefits under the FFCRA. The EPSLA prohibits employers from terminating employees who exert their rights under the EPSLA, including taking paid leave or filing a complaint related to their EPSLA leave. If an employer fires you or if an employer does not issue your paid sick leave, the employer is subject to penalties in Section 16 and 17 of the Fair Labor Standards Act (“FLSA”).
Currently, potential enforcement actions by the DOL for penalties of the FFCRA are on hold during a “temporary non-enforcement period,” but will be subject to these penalties beginning April 18, 2020 (when the grace period ends).
As always, if you have been subject to: disability discrimination, retaliation for requesting a reasonable accommodation, retaliation for utilizing FMLA, or if you have questions about utilizing the new paid sick leave law, FFRC, or believe your employer may have violated one or more of these laws, please contact a an attorney as soon as possible.