COVID-19 Alert: Paid Leave and Other Key Workplace Questions

The coronavirus pandemic has wrought sweeping changes in the way we approach every aspect of life. Some of the biggest of these affect the workplace. Various government actions to contain the virus and mitigate both the health and economic impacts have resulted in some new rules – and a lot of questions – for both employers and employees.

The attorneys in Holm & O’Hara LLP’s Labor and Employment Practice have been working to untangle the sometimes-confusing overlap between federal and state laws covering paid leave, as well as answering other questions related to emerging workplace concerns. This alert provides a summary of information we are most asked about.

This information is provided for guidance only and is not intended to substitute for legal advice. In addition, regulatory authorities are still in the process of issuing implementation guidelines, so the landscape continues to change.

COVID-Related Paid Leave & Extended Family and Medical Leave

Both the federal government and New York State have mandated expansion of paid leave for those directly affected by COVID-19 or caring for a family member who is. The provisions and requirements for each are different, with New York’s generally being considerably more generous to employees.

FFCRA affects most private – and some public – employers with 500 or fewer employees
FFCRA is in effect from April 1, 2020 through December 31, 2020
Both full time and part time employees are eligible for paid leave
Part-time employees are eligible for leave for the number of hours they would normally be scheduled to work during the period
Eligibility is capped at two weeks, except when caring for a child whose school or day care is closed due to COVID-19 (capped at 12 weeks)
Pay rates are based on the higher of normal pay rate or the federal minimum wage
A notice must be posted where all employees can see it, either in a prominent location in the workplace or virtually on an internal or external employee website (if employees are telecommuting). The US Department of Labor has provided FAQs on posting the notice

Qualifying Reasons	Pay Rate	Daily Limit	Cumulative Limit
Subject to government-ordered quarantine Advised by health care provider to self-quarantine Experiencing COVID-19 symptoms and seeking a medical diagnosis	100%	$511	$5,110
Caring for an individual subject to a government order or advised to self-quarantine Experiencing a condition defined by US Dept of Health and Human Services as similar	2/3	$200	$2,000
Caring for a child whose school or place of care is unavailable/closed due to COVID-19 related reasons	2/3	$200	$12,000

New York State Emergency Paid Sick Leave

Took effect on March 18, 2020
Covers all private and not-for-profit employers employing at least one person
Expands eligibility for public insurance programs (Paid Family Leave/PFL and Short-Term Disability/STD) to offset costs in some cases
Requires job protections to remain in effect during the duration of leave
Eligibility ranges from 5-14 days, depending upon employer size and/or net income

Holm & O’Hara LLP has prepared this overview infographic to help explain the provisions.

Other Workplace/Employment Issues

Below are some of the questions we have most frequently been asked, along with basic answers. We caution that every situation is different and it may be advisable to consult with legal counsel to discuss your particular circumstances.

Key Questions For Employers

Can I require the employees to have their temperature taken if/when they return to work?
Yes. The EEOC (Equal Employment Opportunity Commission) has provided guidance that this is permissible. There is currently no ruling on the subject of requiring employees to get vaccinated against COVID-19 and similar conditions if a vaccine should become available.
Can I lay people off and still be eligible for the small business loans and forgiveness programs?
Yes, with some caveats. Eligibility for loan forgiveness is based on the average number of employees earning less than $100,000/year that you had in February 2020. Reducing headcount below that number would make you ineligible for loan forgiveness or reduce the amount forgiven; however, you have until at least June 30, 2020 to cure this issue and re-hire workers (the exact deadline is evolving).
Can I reduce employee salaries to save costs?
Yes. You must give notice to employees that you intend to reduce their pay; it is not necessary to gain their permission. Although there is no definitive guidance, it is generally good practice to provide notice of intention to reduce pay well in advance of the first pay period that will be affected.

Key Questions for Employees

What is the difference between a layoff and a furlough?
Fundamentally, a layoff terminates a position – and its associated employer/employee relationship; a furlough maintains both the position and the relationship. If you are furloughed, your job is being put on pause and you can expect to return to work at some indefinite point in the future. For both laid off and furloughed employees, eligibility for unemployment benefits is subject to state requirements.
If I test positive for COVID-19 and inform my employers, can they tell my co-workers?
Not without your written permission; privacy laws remain in effect. Employers have an obligation to inform those with whom you have had direct contact that they may have been exposed to COVID-19, but they may not reveal your name.
If I qualify for unemployment under the laws of my state, am I still eligible for the $600 additional benefit from the federal government?
Yes. It should appear automatically in your unemployment payments with no further action on your part.

The labor and employment attorneys at Holm & O’Hara LLP are ready to assist institutional clients in navigating and resolving issues related to the COVID-19 pandemic, as well as other workplace and employment concerns.