Covid-19: A BALAnCing ACt for empLoyer
Labor & Employment Law Section
Continued from page 42
closures/unavailability, or if the
employee is experiencing any
substantially similar situation. To
assist employers with this newly
imposed burden, the Act provides
tax credits to refund 100 percent
of private employer funds used to
cover emergency paid sick leave.
The Act also effects how the
Family and Medical Leave Act
(“FMLA”) may be implicated for
eligible employee leave. Prior to
the Act, only eligible employees of
covered employers (defined, inter
alia, as employees of employers
who employ 50 or more employees
within 75 miles and all public
employers) could take FMLA leave
to care for an employee’s immediate
family member(s) who has a serious
health condition or for the
employee’s own serious health
condition. The Act amends the
FMLA to require public health
emergency-related leave for certain
employees who work for a private
employer with fewer than 500
employees and employees who
work for a public employer during
a public health emergency (with
exceptions for health care providers
and emergency responders). Under
this amend ment to the FMLA,
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HCBA LAWYER
an eligible employee is defined
as an employee employed for at
least 30 days. Interestingly, the
amend ment only provides leave
for an employee unable to work
or telework due to the need to
care for a child if the school or
childcare provider of the child is
closed/unavailable due to a public
health emergency. While the first
10 days of this new form of leave
are without pay, the amendment
requires covered employers to pay
for up to 10 weeks of leave at a
rate of two-thirds an employee’s
normal compensation (subject to
monetary caps).
So far, Congress has not
enacted any coronavirus legislation
which alters the ADA during
a public health emergency.
Employees with disabilities may
request accommo dations under
the ADA to prevent exposure
to coronavirus. Employers must
then determine whether such
accommodations are reasonable
in light of the circumstances.
For employers who may wish
to test the body temperature of
employees reporting to work, the
Equal Employment Opportunity
Commission (“EEOC”) recently
issued guidance on its website
which permits employers to
engage in such testing due to
the unprecedented emergency
declarations which are currently
in effect across the country.
These issues represent just the
tip of the iceberg of employment
issues now arising due to the
coronavirus pandemic, and
Congress is preparing to enact
additional legislation in the near
future. Accordingly, practitioners
who represent employers should
seek guidance from experienced
labor and employment
practitioners, and plaintiff
attorneys should be prepared to
accurately counsel concerned
employees. n
Pub. L.
116-27, available
at https://
www.congress.
gov/bill/116th-
congress/house-
bill/6201/text.
1
Authors:
Gregory A.
Hearing &
Matthew A.
Bowles -
GrayRobinson,
P.A.
43