The questions keep coming, as more workers
continue to be exposed or diagnosed.
Though it seems that COVID-19 has been top of mind for such a long time, new questions and COVID-19 related scenarios in the workplace keep coming. The Department of Labor (DOL) FAQ page has an extensive list of questions that are often asked.
Some recent questions include the following:
Question: Can we require employees to use their vacation or sick leave before they take emergency paid sick leave (EPSL)?
Answer: No. Paid sick leave under the Emergency Paid Sick Leave Act (EPSLA) is in addition to any form of paid leave that may be available to an employee. Employers may not require employees to use vacation, personal, medical or sick leave available under a company policy, state or local law or applicable collective bargaining agreement before taking leave under EPSLA.
It is important to note that because EPSL is specific to leave necessitated by COVID-19 and is only available through Dec. 31, 2020, employers may not require employees to exhaust more broadly applicable leave before taking EPSL. Additionally, as EPSL is a separate “bucket” of paid leave, employers also may not require paid vacation, personal, medical or sick leave to run concurrently with or cover the same hours as EPSLA.
Question: Can we require an employee to use paid leave while he or she takes expanded family and medical leave (EFMLA)?
Answer: It depends. During the unpaid portion of EFMLA (i.e., the first two weeks), an employee can, but may not be required to, use EPSL or any other employer-provided paid leave. Once the paid portion of EFMLA applies, however, an employer can require company-provided paid leave (e.g., vacation or other paid time off but typically not sick or medical leave) to run concurrently with EFMLA while an employee must care for his or her child whose school or place of care has closed or become unavailable due to a COVID-19-related reason.
EFMLA is paid at two-thirds of the employee’s regular rate of pay, up to the daily and aggregate limits ($200 per day or $10,000 in total). If an employer requires an employee to use any company-provided paid leave concurrently with EFMLA, the employer must provide the employee with full pay until the employee has exhausted available paid leave under the employer’s plan.
While EFMLA and employer-provided paid leave run concurrently, the employer may only obtain EFMLA tax credits for wages paid at two-thirds of the employee’s regular rate of pay. If an employee exhausts company-provided paid leave but has more EFMLA available, the employee will receive any remaining EFMLA in the amounts specified in the EFMLA, subject to the daily and aggregate limits. Additionally, provided both an employer and employee agree, and subject to federal or state law, paid leave provided by an employer may supplement the two-thirds pay under the EFMLA so that the employee may receive the full amount of the employee’s normal compensation.
Stay tuned because as more states and local jurisdictions enact or expand upon various forms of paid leave, it will be critical for employers to understand the interplay between federal, state and local leave laws.
Question: If we have employees who are refusing to return to work because they have a fear of contracting COVID-19, what can we do?
Response: It depends on why your employees are afraid to return to work. If an employee fears contracting COVID-19 because of some underlying disability or serious health condition, the employee may be eligible for leave under the Family and Medical Leave Act (FMLA) or for an accommodation (e.g., remote work) under the Americans with Disabilities Act (ADA).
For example, an employee may have an anxiety disorder that is triggered by being out in public because of the pandemic. Another employee might have a chronic health condition (e.g., asthma or diabetes) that places him or her at high risk for COVID-19 infection. Under either scenario, If the employer is covered by the FMLA and the employee is eligible for FMLA leave, the employer should start the FMLA process for an employee with an underlying health condition by providing the FMLA’s Notice of Eligibility and Rights and Responsibilities forms. The employer also should initiate the ADA’s interactive process to determine if the employee’s condition qualifies as a disability under the ADA and if the employer can provide an accommodation without undue hardship.
According to the Equal Employment Opportunity Commission’s (EEOC’s) COVID-19 guidance:
As with any accommodation request, employers may: ask questions to determine whether the condition is a disability; discuss with the employee how the requested accommodation would assist him and enable him to keep working; explore alternative accommodations that may effectively meet his needs; and request medical documentation if needed.
An employee may also be fearful of returning to work because a family member has a serious health condition that places him or her at high risk for a COVID-19 infection. In these situations, he recommends following your FMLA process to determine if the employee needs leave to care for the family member. However, ADA accommodations will not be required in this situation. According to the EEOC, The ADA does not require that an employer accommodate an employee without a disability based on the disability-related needs of a family member or other person with whom she is associated.
What if you may have an employee who does not have a mental or physical impairment underlying their fear of returning to work—the employee is just generally afraid of COVID, like so many of us? In these situations, the employee will have no federal protection and an employer can compel a return to work, upon threat of discipline. Implement an empathetic approach that alleviates fear, such as educating your employees about the safety standards the company has adopted or providing flexible working arrangements, such as telework, whenever possible.
Do you have other questions in this regard? We suggest a visit to the Department of Labor page of FFCRA questions.
MyHRConcierge can help consult with you about any human resource issue, including issues related to the FFCRA. For a free consultation, please contact us.