On March 18, 2020, President Trump signed the Families First Coronavirus Response Act (FFCRA) to respond to the economic impact of the coronavirus pandemic. Among other things, FFCRA establishes and requires Emergency Paid Sick Leave and expands the Family and Medical Leave Act (FMLA) for certain employees. Covered employers with less than 500 employees are required to provide employees with paid sick leave or paid family and medical leave for qualifying reasons related to the coronavirus (COVID-19). FFCRA also provides a tax credit to employers to mitigate the costs of providing the required leave. The Act becomes effective tomorrow, April 1, 2020 and remains in effect through December 31, 2020.
EXCLUSION FOR HEALTH CARE PROVIDERS: Under both the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act, employers of health care providers or emergency responders may elect to exclude such employees from eligibility for the leave. The question remained, however, as to what qualified as a “health care provider” under the Acts. On March 28, 2020, the Department of Labor (“DOL”) answered that question and offered a very broad, sweeping definition of “health care provider” for purposes of the FFCRA. Specifically, the DOL explained that a “health care provider” is anyone employed by any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider. A state governor can also determine who is a “health care provider” necessary for the state’s response to COVID-10. A chiropractor and anyone employed at a chiropractor’s office is a “health care provider” and therefore, it at the practice’s discretion whether to provide employees paid leave under the Act. There is no waiver or any required action necessary to effectuate this exclusion. It is recommended, however, that practices notify employees that, as a health care provider, they are excluded from this paid leave entitlement. It is a good idea to post a notice explaining (a sample is attached).
IMPACT OF PRACTICE CLOSURES: Generally, employees who are not working are not entitled to wages. The Department of Labor has also specifically explained that (even without the health care provider exclusion) employees that are not working due to an office/business closure (including those closures mandated by government order) are also not entitled to paid sick leave under the FFCRA.
REQUIRING EMPLOYEES TO STAY AT HOME OR LEAVE WORK: Employers are permitted to ask employees to seek medical attention and get tested for COVID-19. Employers are also permitted to require employees to leave work (or stay home from work) – even if they refuse. The CDC states that employees who exhibit symptoms of influenza-like illness at work during a pandemic should leave the workplace. Employers cannot, however, require an employee to stay home just because the employee is over 65.
REFUSAL TO COME TO WORK FOR FEAR OF CONTRACTING COVID-19: Employees may only refuse to work if they believe they are in imminent danger. Section 13(a) of the Occupational Safety and Health Act (OSHA) defines “imminent danger” to include “any conditions or practices in any place of employment which are such that a danger exists which can reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.” OSHA describes imminent danger as where there is “threat of death or serious physical harm,” or “a reasonable expectation that toxic substances or other health hazards are present, and exposure to them will shorten life or cause substantial reduction in physical or mental efficiency.” The threat must be immediate or imminent. Most work conditions in the United States, however, do not meet the elements required for an employee to refuse to work.
RETURN TO WORK AFTER INFECTION: If an employee contracted COVID-19 and quarantined in-home, they can cease in-home isolation once they have either been confirmed to be no longer contagious as a result of medical testing by a medical professional, or (1) have been without fever for at least 72 hours, (2) other symptoms – such as a cough or shortness of breath – have improved, and (3) at least 7 days have passed since the symptoms first appeared.
Dena Sokolow is an Employment Shareholder at Baker Donelson, a firm with 70 experienced labor and employment attorneys across 20 offices in seven states and Washington, D.C. The Labor & Employment attorneys are licensed in a total of 14 states and have handled matters in 40 states and the District of Columbia.
Dena has more than 20 years of experience counseling and defending employers on a wide range of labor and employment matters, and litigation experience which includes arbitrations, class/collective actions, single and multiple plaintiff lawsuits, and administrative proceedings. With a practice spanning Florida, Georgia, Alabama and beyond, she has handled virtually every type of discrimination case at either the federal, state or agency level, including sexual harassment, race, sex, pregnancy, disability, religion, age, national origin and retaliation, she is a welcome presenter at FCA events.