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EMERGING QUESTIONS FOR EMPLOYERS UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT AND OTHER CORONAVIRUS EMPLOYMENT ISSUES
March 24, 2020


The Families First Coronavirus Response Act (the Response Act) was passed March 18, 2020. Some frequently-emerging questions regarding the Response Act are answered below. For a refresher regarding the basic provisions of the Act, please click here. On or  before April 2, 2020, regulations are expected from the Secretary of Labor clarifying employers’ obligations under the Response Act.  Such regulations may change the answers stated below.

Q:  Do I have to pay an employee the unused sick leave benefit upon termination?

A:  No. Employers do not have to pay out unused sick leave upon termination of employment under the Emergency Paid Sick Leave portion of the Response Act. Section 5107 explicitly states that nothing in the sick leave benefits portion of the Response Act should be construed to require employers to financially reimburse employees for unused sick leave benefits under the sick leave portion of the Response Act upon the employee’s termination, resignation, retirement or other separation from employment. This benefit is not one that an employee “earns” and which might be considered wages under state law. Instead, the benefit is of the type that is immediately available but not “bankable” for the employee.

Additionally, if an employee does not use paid sick leave under the sick leave benefit portion of the Response Act by Dec. 31, 2020, when the Response Act expires, he or she will lose the benefit because the sick leave benefit does not carry over from one year to the next.

Q. Can I require an employee to use PTO before using the sick leave benefits?

A. No. The Response Act explicitly prohibits an employer from requiring an employee to use his or her banked PTO before the federal sick leave benefit is used. An employee who is absent from work for a qualifying reason will immediately receive the sick leave benefits under the Response Act.

Q. Can I require an employee to use PTO during any period of leave under the amendments to the FMLA (for leave to care for a child whose school has been closed or whose day care provider is not available because of COVID—19)?

A. No. An employee may elect to use such leave but cannot be forced to use it by his or her employer.  This is different than the “regular” FMLA under which an employer can force an employee to use accrued, but unused, PTO concurrently with the “regular” FMLA’s 12-week period of unpaid leave.

Q. When does the Response Act apply to me?

A. No later than 15 days after it was enacted, which is April 2, 2020.

Q. What if I put my employee’s on “furlough” after the Response Act becomes effective? Are they eligible for the amended FMLA leave rights to care for a child whose school has been closed or day care provider is no longer available because of COVID-19?

A. Probably not. In order to be eligible for the leave, an employee must be “unable to work (or telework) due to a need for sick leave to care” for his or her child whose school is closed or day care provider is unavailable. If the employee is unable to work for an unrelated reason (the employee has no work to do because of a decline in the employer’s business), then the leave “trigger” has likely not been activated.  This answer is not conclusive and may change after the regulations are issued.  Further, terminating an employee who has requested leave or is on leave invites retaliation lawsuits by affected employees.

Q. What if my company shuts down after April 1, 2020? Do employees still have rights under the Act?

A. Unlikely, but exercise caution. Generally, employees do not have rights under the Act until April 1, 2020. Sick leave under normal circumstances presumes that there is work to be done and an employee is too sick to accomplish the work. If your business is closed and there is no work to be done, then sick leave likely does not apply. Beware that in some states you may need to review the law on wrongful termination and interference claims. Be prepared to document the need for a company shut down and comply with all state laws and employment contracts regarding the timing and payment of final paychecks and unpaid leave. Please also review our article on other laws that may apply.

Q. What if the government shuts down my business after April 1, 2020? Do I still need to pay benefits under the Act?

A. It depends. Local and state laws as well as the specific orders entered in your state and local jurisdiction will likely determine this answer. Under the Act’s paid sick time requirement, an employer is required to provide paid sick time to the extent that the employee is unable to work (or telework) because “[t]he employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.” Federal CDC guidance discussing the definitions of “quarantine” and “isolation” orders would not cover the suggestions from many levels of government used early on during the pandemic to stay home. They were simply guidelines and did not have the force of law. However, states and localities also have police power enforcement powers to order individuals and businesses to close – and whether these qualify under the Act may depend upon state and local definitions of terms, and whether your state or local entity (including public health officials) have issued a “quarantine” or “isolation” order under the Act.

Q. If an employee is teleworking, is he or she eligible for the COVID—19 FMLA leave rights?

A. Yes. If an employee is working from home but must care for a child whose school has closed or whose day care provider is not available due to COVID—19, he or she is entitled to the COVID-19 FMLA leave rights. As drafted, it appears that the Response Act provides COVID—19 FMLA rights even if the employee (who has previously been teleworking) cannot work for just a few minutes or hours to care for a child. Regulations may clarify this issue. Hopefully, the new regulations will address whether intermittent leave will be an option.

Q: Is a manager or officer of a company potentially personally liable for unpaid sick leave benefits?

A. Yes. Under the Emergency Paid Sick Leave portion of the Response Act, an employer “includes any person acting directly or indirectly in the interest of an employer” within the meaning of such phrase under the Fair Labor Standards Act. Such “person” includes officers or managers of a company who have responsibility over employment and payroll matters such as hiring and firing employees, supervising or controlling work schedules and conditions of employment, and/or making pay decisions. Just because someone has an ownership interest in a company or is in a position of authority, however, is not enough to make the individual personally liable.

Q. Is COVID-19 considered a disability under the ADA?

A. Currently, no. COVID-19 itself will likely not be of long enough duration to qualify as an ADA disability. However, an employee may have underlying conditions that may qualify as a disability under the ADA and that are exacerbated by COVID-19. Likewise, complications may arise from COVID019 that may qualify as a disability under the ADA. Under the latter two circumstances, an employer may have certain obligations, such as providing the employee with a reasonable accommodation for the underlying condition or complication, but not for COVID-19 as a disability.

Q. If an employer requires an employee to stay home because he or she possibly has COVID-19, is that a basis for an ADA claim that the employer “regarded the employee as disabled?”

A. Unlikely. COVID-19 itself is transitory and minor condition with an expected duration of six months or less and cannot form the basis of a “regarded as” claim. However, COVID-19 could cause a different permanent or more long-lasting condition which could be considered a disability under the ADA and give rise to a “regarded as disabled” claim.

Q. Can an employer take an employee’s temperature and send the employee home if he or she has an elevated temperature?

A. Yes. The EEOC provided updated guidance on March 18. During the COVID-19 pandemic, an employer may ask employees if they are experiencing symptoms of the pandemic including fever, chills, cough, shortness of breath or sore throat. This information should be maintained as a confidential medical record in compliance with the ADA. During the pandemic, an employer may also measure an employee’s body temperature but should do so in a non-discriminatory manner. Please go to EEOC.gov for more information.

Q. If an employee has already used some or all of their FMLA leave before the Response Act applies, is the employee entitled to an additional 12 weeks of leave?

A. No. The Response Act does not give an employee an additional 12 weeks of leave, but rather provides an additional reason leave may be available. You should continue to track all FMLA leave taken for any qualifying reason.

For questions about this or other employment-related matters, contact: Sean Monson, (801) 536-6714 or email smonson@parsonsbehle.com; Christina Jepson (801) 536-6820 or email cjepson@parsonsbehle.com; Susan Motschiedler at (801) 536-6923 or email smotschiedler@parsonsbehle.com; Liz Mellem at (406) 333-0530 or email lmellem@parsonsbehle.com; Amy Lombardo at (208) 562-4900 or email alombardo@parsonsbehle.com; or Jordan Westgate at (801) 536-6827 or email jwestgate@parsonsbehle.com.