Covid-19: A BALAnCing ACt for empLoyers
Labor & Employment Law Section
Chairs: Amanda Biondolino – Sass Law Firm and Jason Pill – Phelps Dunbar, LLC
these issues represent just the
tip of the iceberg of employment
issues now arising due to the
A
s the World Health
Organization has
declared COVID-19
(“coronavirus”) a
pandemic and President Trump
has declared a national emergency,
employers and employees have
begun to accept that they face
major workplace challenges.
Indeed, employers need to protect
their employees as well as follow
government directives, all the
while considering their bottom
line so they can afford to pay their
employees. Attorneys should be
prepared to respond to labor
and employment law inquiries
regarding the coronavirus
pandemic from employers and
employees alike.
As the virus spreads, an
assortment of labor and
employment issues have arisen.
Restrictions and limitations on
employee travel is top of mind.
A recent decision from the
Eleventh Circuit is pertinent to
that topic. In E.E.O.C. v. STME,
LLC, the Eleventh Circuit held
that an employer did not engage
in associational or regarded as
discrimination in violation of the
Americans with Disabilities Act
(“ADA”) when it terminated an
employee who refused to cancel her
trip to West Africa during an Ebola
outbreak. E.E.O.C. v. STME, LLC,
938 F.3d 1305 (11th Cir. 2019).
The employer had instructed the
42
coronavirus pandemic.
employee not to travel to West
Africa because it feared that
the employee might come into
contact with unknown individuals
infected with the Ebola virus and
bring the virus back to Florida.
Sound familiar?
Some employers are requiring
employees to stay home. In such
situations, questions arise about
employee compensation. Prior
to the Families First Coronavirus
Response Act, the answer for
all employers subject to the
requirements of the Fair Labor
Standards Act (“FLSA”) was it
depends on whether employees
are exempt or non-exempt under
the FLSA and/or whether the
employees are covered by a
collective bargaining agreement.
For instance, an employer must
compensate exempt employees
for forced business closures of less
than one week but not for more
than one week. Also, employers
must always compensate exempt
employees for a full day of work
if the employee engages in any
amount of work on a particular
given day, including checking
work-related emails. Employees
covered by a union contract may
be due wages due to an unforeseen
work stoppage.
The Families First Coronavirus
Response Act, H.R. 6201 1 (“the
Act”), which President Trump
signed into law March 18, 2020,
changes the above analysis for
private employers who employ
fewer than 500 employees or
public employers who employ
one or more employees (with
exceptions for health care providers
and emergency responders). Such
employers must provide emergency
paid sick leave (subject to monetary
caps) to full-time employees in an
amount equal to 80 hours at their
regular rate of pay and part-time
hourly employees an amount which
covers the hours an employee
normally would have worked
during a two week period.
Employers must provide such
emergency paid sick leave in
addition to any other sick leave
or leave benefits provided to the
employee. Qualifying circumstances
which require emergency paid
sick leave include an employee
subject to government mandated
quarantine, an employee’s
self-quarantine at the direction
of a health care provider, or an
employee experiencing COVID-19
symptoms and actively seeking a
diagnosis. The Act also provides
for the above paid emergency
sick leave at a reduced two-thirds
rate of compensation when
the employee is caring for an
individual subject to quarantine,
the employee is caring for a child
due to school or child care
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