COVID-19 Benefits Related FAQ Part 3
Here is a list of additional Frequently Asked Questions for COVID-19 related benefits issues. This resource will be updated as more questions and answers are available. The complete FAQ can be found at https://pilotrb.com/covid19
My employee has asked for 12 weeks of paid leave under the FFCRA because she has just learned her 9 year old’s summer camp has been canceled due to the pandemic. Is this employee eligible for leave?
If you have fewer than 500 employees and are subject to the FFCRA, a summer camp closure is an eligible reason for up to 12 weeks of leave, paid at ⅔ salary (subject to the $10,000 aggregate cap) under the emergency FMLA for child care provision. The DOL released FAB 2020-4 which states “The Department's existing guidance provides that a closed summer camp or program may be considered to be the place of care for an employee's child if the child was enrolled in the camp or program before the summer camp or other summer program announced closure...”. If an employee had registered their child for a camp program and that program is no longer able to accommodate the child, this is generally an eligible leave under FFCRA. Note the first 2 weeks are unpaid under child care leave, however they would generally be paid under the paid sick leave to care for a family member provision of the FFCRA, so in effect, the employee is paid at ⅔ salary for all 12 weeks.
We had an employee take 80 hours of paid leave under the FFCRA after a positive COVID-19 test result in April. The employee now has a second positive test and has requested additional leave. Is this required?
The FFCRA provides for up to 80 hours of paid leave for the various COVID-19 reasons, including isolation after a positive test result. Once an employee has exhausted all 80 hours, (or the hours they would have worked in a 2 week period) there is not additional time provided by this Act. The employee would be able to use accrued paid sick leave, PTO, or unpaid leave.
Additionally, for employers subject to the New York State paid leave for COVID-19 orders of Quarantine, there is up to 14 days paid leave for individuals with a state order. Once these 14 days have been exhausted, there is not an additional allotment of paid time off under the law. Note that pay for 14 days is measured according to the employee’s usual schedule, so they are paid for days/hours they would have worked over 14 calendar days. However, June 25th guidance creates an exception to this single use rule for ‘health care workers’ and states “The health care employee shall be deemed to be subject to a mandatory order of isolation from the Department of Health and shall be entitled to sick leave as required by New York’s COVID-19 sick leave law, whether or not the health care employee already has received sick leave as required by the law for the first period of quarantine or isolation.”
We are bringing employees back to work, and want to have a proper testing plan in place. Can we choose which employees to test, or exclude high-risk employees from returning?
All employees must be treated similarly with regards to testing and return to work under EEOC guidance. The Age Discrimination in Employment Act (ADEA) prohibits a covered employer from “involuntarily excluding an individual from the workplace based on being 65 or older, even if the employer acted for benevolent reasons such as protecting the employee due to higher risk of severe illness from COVID-19.” The Americans with Disabilities Act (ADA) similarly would not permit employers to require pregnant employees to remain home, unless the accommodation was at the request of the employee.
My employee has asked for 80 hours of paid leave to care for his mother who is ill with COVID-19. Currently, this employee is on furlough. Am I required to pay this employee for 10 days of leave under FFCRA?
The Southern District in New York v. U.S. Department of Labor, et al., ruled that the DOL’s limiting instructions surrounding when an employee may qualify for leave under the FFCRA is not valid. Specifically, the court invalidated the work availability requirement for leave. This means that employees who may be on furlough, can still qualify for paid leave under the FFCRA’s various paid leave provisions. The DOL will likely appeal the decision, however its advisable that employers take note of the currently enforceable court ruling in New York only, and permit leaves under FFCRA for furloughed employees at this time.