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Can you get paid if you miss work for COVID-19/Coronavirus, including a shutdown? An SC lawyer describes a new federal law that protects some employees.

Posted on Mar 23, 2020

A huge question for many employees is whether you qualify for any pay if you miss work related to COVID-19/Coronavirus—whether it’s a government shutdown, you get the disease, a family member gets it who you need to help care for, or your child’s school or daycare closed. Believe it or not, we’ve got an answer for at least some of us, from Congress, of all places! It’s called the Families First Coronavirus Response Act, passed by the House and signed into law by the President on March 18, 2020.

I’m giving it to you in outline form, to make it easier to digest and quicker to find answers.

TYPICAL LAWYER DISCLAIMER: This is complicated stuff, and I haven’t scrutinized the whole law, so for specific guidance for your unique situation, ask your company’s HR department or seek out an employment lawyer. This is my good-faith summary of the law, which I got from an outstanding article on Forbes, which you can read on their website.

Effective Date of the Act

It takes effect on April 2, 2020, and remains effective until December 31, 2020.

Who’s Eligible

The law applies to all employees who work for businesses with less than 500 employees. There’s no minimum tenure requirement to qualify—you’re eligible no matter how long you’ve worked there. However, employers with less than 50 employees might qualify for an exemption if the law jeopardizes the business’s financial ability to survive. The exemption requires approval from the Secretary of Labor, but before that, the government must create regulations governing it.

Employee Paid Sick Leave and Shutdown Benefits for COVID-19/Coronavirus

Under a portion of the Families First Coronavirus Response Act called the Emergency Paid Sick Leave Act, eligible employees can get the following benefits under these situations:

Qualifying Reasons: You can’t work (which includes telework) because:

  1. You are subject to a federal, state, or local quarantine or isolation due to COVID-19 [which seems to cover a government-ordered shutdown or shelter-in-place];
  2. A health care provider advised you self-quarantine due to concerns related to COVID-19 (self-imposed quarantine without medical advice does not qualify under the Act);
  3. You are having symptoms of COVID-19 and are seeking a medical diagnosis;
  4. You are caring for a person (who interestingly might not be limited to family members, but the law’s unclear) who is either subject to a federal, state, or local quarantine or isolation due to COVID-19 or has been advised to self-quarantine due to concerns related to COVID-19;
  5. You are caring for your child whose school has been closed or whose daycare is unavailable due to COVID-19 precautions; or
  6. You are “experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretaries of Treasury and Labor.” We don’t know what that means yet, but the government will tell us.

Benefits you’re eligible for:

  • Hourly basis of benefits. Full-time employees get 80 hours of paid sick leave. Part-time employees get paid for the average number of hours worked in two weeks. If your schedule varies widely from week to week, there’s another calculation method.
  • Paid sick leave limits. For qualifying reasons 1, 2, and 3, a limit of $511 per day and $5,110 total. For qualifying reasons 4, 5, and 6, you receive two-thirds of your regular rate, with a limit of $200 per day and $2,000 total. Paid sick leave does not carry over from one year to the next, and paid sick time ends at your next scheduled work shift immediately following termination of the qualifying reason for paid sick time.

There’s something for employers, too. They can seek reimbursement for paid sick leave through tax credits.

Using benefits:

  • Paid sick time eligibility starts on April 2.
  • Employers cannot require you to use other paid leave first. As such, this leave is in addition to any paid sick leave or paid time off (PTO) currently provided by employers.
  • Employers cannot require you to provide advance notice before the first workday you take paid sick leave under the Act.

Benefits When Your Child’s School or Daycare Closed

The Families First Act also includes the Emergency Family and Medical Leave Expansion Act (FMLA Expansion Act). As indicated by the name, this aspect of the law expands FMLA to include all employers with fewer than 500 employees, and cover all employees who have worked for these employers at least 30 days. Again, the Secretary of Labor can create exemptions for certain health care providers and emergency responders, plus businesses with fewer than 50 employees if the Act jeopardizes a business’s viability.

Here's how these benefits work:

  • Qualifying Reason. You are unable to work (including telework) because you must care for your child (defined as under 18) whose school or daycare closed due to COVID-19.
  • Benefit. Up to 12 weeks of leave. The initial 10 days are unpaid, but you can use paid sick leave and/or paid vacation time for that. After that, you can receive two-thirds of your normal wages for the number of hours you’re regularly scheduled to work, up to a maximum of $200 per day and $10,000 in total.
  • Restoration to Position for employees returning from expanded FMLA leave. For employers with 25 or more employees, an employee is reinstated to the same or an equivalent position. For employers with fewer than 25 employees, an employee is reinstated to the same position unless it doesn’t exist due to economic conditions or other changes in operating conditions caused by the public health emergency. If so, the employer must make reasonable efforts to restore the employee to an equivalent position, and if that can’t be done, make reasonable effort for at least a year to contact the employee if an equivalent position becomes available.
  • Use. Benefit eligibility starts on April 2. If the necessity for leave is foreseeable, you must provide the employer with “such notice of leave as is practicable.”

Hang in There!

Folks, I hope you’re all well and safe. My prayer for us all is the biggest challenge we face continues to be the stress of uncertainty and just not knowing when things will return to normal. Find peace in knowing it’s when, and not if.

Rob Usry
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Rob is a Spartanburg personal injury lawyer. Rob also practices as a criminal defense attorney.