HCBA Lawyer Magazine Vol. 30, No. 5 | Page 45

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, M AY - J U N E 2 0 2 0 | 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