HR Issues Amidst COVID-19 Disruptions PART 6: Managing Various COVID-19 Employee Leave Law Scenarios

Imagine the following employee situation. MakeStuff Corporation is a Midwest manufacturer of widgets. MakeStuff employs 75 full-time workers, and you are the company’s Plant Manager. Carl, one of your top performers, walks into your office. Typically, he greets you with a smile and a corny joke. Not today. Carl enters with a confused and concerned look on his face. Carl says, “Sue. I’m scared. I just found out that my daughter is sick, and I do not know if it is COVID-19. I don’t know what to think anymore with all the confusion seen on the news. I think I need to take some time off.” What do you do? What laws apply? Family Medical Leave Act? Emergency Family and Medical Leave Expansion? Emergency Paid Sick Leave? What is the proper course of action? It is possible to understand various employment leave laws and build processes to address them. However, it is more difficult to manage specific situations when they arise. Hopefully, the following scenarios will help you address related employee issues.

Three primary leave laws come into play when considering COVID-19 (see Part 4 of this series to better understand the Families First Coronavirus Response Act). It is important to remember these basic facts for each of these laws.

• Applies to all employers with at least 50 employees within a 75-mile radius of the worksite
• Leave is unpaid
• Employee job protection for up to 12 weeks if the employees has been employed with the company for 12 months and worked at least 1, 250 hours during the 12 months prior to the start of FMLA leave

• Applies to all employers with less than 500 employees
• Leave is unpaid for the first two weeks and then it is paid for the remaining 10 weeks
• Employee job protection for up to 12 weeks (except for employers with less than 25 employees)
• Must be a COVID-19 qualifying reason related to childcare

3. Families First Coronavirus Response Act—Emergency Paid Sick Leave (FFCRA E-PSL)

• Applies to all employers with less than 500 employees
• Leave is paid (differing pay amounts based upon the reason for leave)
• Employee’s job is not protected (unless the reason also falls under E-FMLA or FMLA)
• Must be a COVID-19 qualifying reason

Scenario #1: Employee is scared that s/he may contract COVID-19, but s/he does not have any signs of illness

• FMLA—No. There is no illness that meets the FMLA definition of “serious health condition.” The employee must work for a covered employer to meet eligibility requirements.
• E-FMLA—No. Fear of contracting COVID-19 is not a qualifying reason and this law pertains to childcare. 
• E-PSL—No. Fear of contracting COVID-19 is not a qualifying reason unless a doctor has provided a quarantine notice due to an underlying health condition.

Scenario #2: Employee has symptoms of and/or is ill with COVID-19

• FMLA—Yes. If the illness meets the FMLA’s definition of “serious health condition,” it qualifies for FMLA. The employee must work for a covered employer to meet eligibility requirements.
• E-FMLA—No. The E-FMLA pertains to childcare related COVID-19 reasons. 
• E-PSL—Yes. If the employee is seeking a medical diagnosis or if s/he is advised by a health care provider to self-quarantine, s/he would qualify. 

Scenario #3: Employee is caring for a family member diagnosed with COVID-19

• FMLA—Yes. If the family member’s illness meets the FMLA definition of “serious health condition,” it qualifies for FMLA. The employee must work for a covered employer to meet eligibility requirements.
• E-FMLA—No. The E-FMLA pertains to childcare related COVID-19 reasons. 
• E-PSL—Yes. If the family member is under a governmental quarantine order and/or advised by a health care provider to self-quarantine, s/he would qualify. 

Scenario #4: Schools or daycares are closed or unavailable due to COVID-19, and the employee cannot work because of the need to care for a child

• FMLA—No. There is no illness that meets the FMLA definition of “serious health condition.” The employee must work for a covered employer to meet eligibility requirements.
• E-FMLA—Yes. If there is no other suitable person available to care for the child(ren), s/he would qualify.
• E-PSL—Yes. If there is no other suitable person available to care for the child(ren), s/he would qualify.

Scenario #5: Employer must shut down operations due to a governmental order

• FMLA—No.
• E-FMLA—No.
• E-PSL—No.

Scenario #6: Employer shuts down or reduces available hours due to a slowdown or lack of demand

• FMLA—No.
• E-FMLA—No.
• E-PSL—No.

Scenario #7: Employer has available work or telework for an employee, but s/he does not want to do it.

• FMLA—No.
• E-FMLA—No.
• E-PSL—No.

As you can see, so many scenarios can surface. It is important to understand these laws (who they apply to, who qualifies for them, what they offer), so that they are properly administered. 

Back to Carl…in his situation, it is possible that he qualifies for FMLA and E-PSL. If his daughter’s illness meets the FMLA’s definition of a “serious health condition,” he would be able to obtain 12 weeks of unpaid leave under the Family Medical Leave Act. In addition, if her illness is related to COVID-19, Carl would qualify for two weeks of Emergency Paid Sick Leave. He would not qualify for Emergency Family Leave as there is nothing indicating that his daughter’s school, daycare, or childcare provider is unable to care for her. If that were the case, he would qualify for E-FMLA. Remember, this example states that the employer has at least 50 employees (to qualify for FMLA) and has less than 500 employees (to qualify for E-FMLA and/or E-PSL). 

Wow! Do you see how complex this can get?! Feel free to reach out to me if you need helping to think through whether your employee situations qualify for any of the above laws. 

This series explores HR-related areas needing consideration as leaders deal with the current COVID-19 disruption. Check out parts 1-5:

• HR Issues Amidst COVID-19 Disruptions PART 1: Defining Long-Term Objectives Surrounded by Uncertainty

• HR Issues Amidst COVID-19 Disruptions PART 2: Support Your Employees With Clear Communications

• HR Issues Amidst COVID-19 Disruptions PART 3: Staffing and Business Continuity

• HR Issues Amidst COVID-19 Disruptions PART 4: Understanding The Families First Coronavirus Response Act (FFCRA)

• HR Issues Amidst COVID-19 Disruptions PART 5: Administering The Families First Coronavirus Response Act (FFCRA)

Hang in there! This will pass! We are in this together!

Need assistance with addressing short and long term HR needs for your business? Contact me at steve.black@brixeyandmeyer.com, and we will address them proactively.

Disclaimer: This blog is not legal advice, but merely informed opinion or general information meant for no particular purpose. Issues addressed in this blog often implicate federal, state, and local labor and employment laws. This blog is not intended as a substitute for legal advice. Readers should consult labor and employment counsel to determine whether their particular policies, procedures, decisions, or courses of action comply with such laws.