COVID 2.0 – The Resurgence Has Arrived

Who’s tired of 2020? Me! Me! Me! COVID gave us a bit of a reprieve for the summer months, but now seems to be back with a vengeance. New cases are higher than ever across the world. Parts of Europe are shutting down again. US cases and hospitalizations keep going up. You don’t have to read the news to know that cases are increasing … just ask any employer. The number of employees needing quarantine leave because of infection of themselves or their family has skyrocketed. Some companies are facing their first case. Others their 500th. Some employees have never taken a day off. Others have been quarantined three times. They’re all stressful. The challenge is trying to balance being fair with keeping the business afloat.

Employers need to remember what they learned 9 months (years?) ago in March/April 2020. Here are a few refreshers based upon cases that have come across my desk recently:

Employers with Fewer than 500 Employees

  • The Families First Coronavirus Response Act (FFCRA) still applies (at least until 12/31/20).
    • Paid Sick Leave – up to 80 hours
      • If the employee did not use all 80 hours in the spring, they may be entitled to use the remainder now.
      • Don’t forget that leave to care for others or due to school/daycare unavailability is paid at 2/3, but employees may supplement with PTO.
      • Make sure you have good documentation from the employees supporting need for leave. You’ll need it if the IRS comes knocking seeking proof to justify the tax credits.
  • Emergency FMLA – up to 12 weeks
    • Important: Remember that this only applies to employees who need leave due to school/daycare unavailability due to COVID.
      • If the children are quarantined, the EFMLA applies.
      • If the child has the option for in-person schooling and the parents opt for home-based learning, the EFMLA does not apply.
    • Paid out at 2/3 of the employee’s rate, but employees may supplement with PTO.
    • The first two weeks are unpaid … but can be taken in conjunction with Paid Sick Leave (depending upon the circumstances) and the employee can supplement with PTO.
  • It is important to evaluate the circumstances of each case. Things get very dicey for employees who took some leave earlier in the year but now need additional leave.

Employers with 50 or More Employees

  • “Regular” FMLA may apply.
  • A typical case of COVID likely won’t rise to the level of a “serious health condition”, but underlying conditions may create an FMLA situation. If the employee is hospitalized due to COVID, it definitely results in FMLA coverage (assuming that the employee also meets the other requirements for FMLA eligibility).

All Employers

  • Don’t forget about state laws. Many states already had paid sick leave laws on the books. Others passed laws to specifically address COVID.
  • The Americans with Disabilities Act (ADA) creates an obligation for employers to reasonably accommodate individuals with a disability. Although a typical case of COVID does not rise to the level of a disability, employees with underlying health conditions may require an accommodation – often allowing them to work remotely. Most states have an ADA-equivalent law that applies to even very small employers.

Clear as mud, right? The key here is to be smart and be reasonable. Much has changed in the COVID world since March/April. The DOL and EEOC have substantially changed their guidance since that time. Advice that applied in the spring may have changed, so don’t rely on materials from that great webinar you attended in April.

I often say: “Our best clients call us before they get into trouble. Our best paying clients call us after.” That has never been more true. COVID pay and leave issues are confusing, but most can be handled in a single phone call. The cost savings of even daily calls vs. a single lawsuit is exponential. Give us a call. We’re here to help.

Just 2 more months left of 2020. We’ll get there. I promise!

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