COVID-19 is rapidly changing how we conduct business in the United States and in the Commonwealth of Virginia. Change and adaptation are necessary but it is also necessary to know how both the law has changed and how current laws effect the current situation and circumstances moving forward for both employers and employees.
Employers with fewer than 500 employees are considered small businesses. They have options available to them under the recently passed stimulus bill that was signed into law on March 27, 2020 by the President. Small businesses also need to be aware of expanded protections for employees under both the Families First Coronavirus Response Act (“FFCRA”) and the Family Medical Leave Act (“FMLA”).
Families First Coronavirus Response Act
The FFCRA gives employees new protections as a result of the changing world we are experiencing due to the COVID-19. Employees who are unable to work, unable to telework or who do not have daycare options available to them have expanded protection if a public health emergency is declared due to COVID-19. The President has declared a national state of emergency, Virginia Governor Ralph Northam has declared a state of emergency and the Fairfax County Board of Supervisors as well as many, if not all, other localities in Northern Virginia have declared states of emergency. Employers and employees need to be made aware of these new protections and need to have contingency plans for their use and need to understand their potential impact on their business operations and their employment capacity.
The FFCRA permits employees to utilize up to eighty (80) hours of paid sick leave for multiple reasons. An employee can use this paid sick leave for childcare based on the circumstances outlined above.
The FFCRA also provides mandatory paid sick leave of up to eighty (80) hours for, among other reasons, an employee who is caring for the employee’s own child if the child’s school or daycare has been closed or if their daycare provider is unavailable due to the COVID-19 pandemic.
You can find the text of the bill providing these protections, H.R. 6201 at the following link: https://www.congress.gov/bill/116th-congress/house-bill/6201.
Family Medical Leave Act Provisions Changed Through the FFCRA
The expansion to the FMLA protections above only apply to businesses with fewer than five hundred (500) employees and some public employers. Also, businesses with fewer than fifty (50) employees are exempt when the expanded protections would jeopardize the continued viability of your business.
As mentioned above, the FFCRA amends the FMLA to allow an employee who is unable to work or telework/telecommute to take leave due to a need to care for the employee’s child if the child’s school or daycare has been closed due to the states of emergency currently in effect nationally, in Virginia and locally in Northern Virginia as a result of the COVID-19 pandemic.
The FFCRA also provides for paid sick leave. Employers with fewer than 500 employees must immediately make available 80 hours of paid sick leave for full-time employees and the equivalent of the average number of hours over two weeks for part-time employees for any or all of the following reasons:
- The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
- The employee has been advised by a healthcare provider to self-quarantine;
- The employee is experiencing symptoms of COVID-19 and has sought medical care;
- The employee is caring for an individual who has been or potentially has been exposed to COVID-19; and/or
- The employee is caring for their child if their child’s school or daycare has been closed due to COVID-19;
The expanded FMLA provisions under the FFCRA provide that the employer can elect that the first ten (10) days of leave sought by the employee due to school or day care closure be unpaid. If employees have unused personal leave or sick leave it can be used in lieu of the unpaid ten days. After the day ten (10) days expire, payments from the employer to the employee shall be in the amount of 2/3 of the employee’s regular pay rate. The FFCRA does provide a cap for payments. Payments are capped at $200 daily. No employee can receive more than $10,000 in total under the FFCRA for this provision.
The FFCRA offers job protection similarly to the FMLA. The FMLA requires that an employee return to same or equivalent position upon return from FMLA leave. Under the provisions of the FFCRA this protection does not apply to employers with twenty-five (25) or fewer employees if the employees prior position no longer exists as a result of economic damages caused to the employer by the COVID-19 pandemic.
The new FMLA provisions would apply to employees who have been employed for at least thirty (30) calendar days. The paid sick leave requirements would apply to all employees under covered employers.
Unemployment Benefits in Virginia
Governor Northam has already issued an Executive Directive waiving the one-week waiting period usually in place for applying for unemployment benefits. Employees are further eligible to receive unemployment benefits if an employer needed to temporarily close or cease operations due to the COVID-19 pandemic, if an employee has been issued a notice to self-quarantine by a medical or public health official (and is not receiving any other pay or benefit) and/or if the employee must care for a family member with COVID-19.
We are so thankful for the first responders who are responding to this pandemic and literally putting their health and lives on the line to protect us and our families on a daily basis. It is unfortunate when we hear through the media that doctors, nurses and first responders do not have all the necessary Personal Protective Equipment (“PPE”) in order to safely diagnose, treat and care for their patients.
Many of these doctors, nurses and paramedics are employees of hospital or operating as employees of service providers who have contracts with hospitals. As we face a nationwide and local shortage of PPE some medical professionals are still being asked to treat patients under unsafe conditions.
If you feel you are begin asked to operate under unsafe conditions please call us so we can review your contract, discuss and analyze your situation and provide you with options moving forward.
Consult with an Experienced Employment Law Attorney
Our attorneys and staff have been members of our community for over five decades. Our families, our clients and our service to our community is why we practice law and help people. We are here for you during this unique and difficult time. Whether you have a question about being terminated, have a severance package you want reviewed or want to know what options you have with respect to your employees we are here to provide advice and help you. The world around us is changing and has already changed. The attorneys at Surovell Isaacs & Levy are ready to assist you. Give us a call at 703-251-5400 to make an appointment or contact JZellman@surovellfirm.com.
Posted in: Employment Law