Lessons from the 2020 Pandemic: Navigating Employee Leave, Accommodations, and Preventative Health Measures in Schools
| Publication year | 2020 |
| Pages | 0430 |
COVID-19 has rocked our world and changed the landscape of workplaces everywhere-including in schools. While we've navigated short-term emergency legislation and (we hope) short-term virtual learning arrangements in 2020, we have learned lessons for navigating Family and Medical Leave Act1 ("FMLA") and Americans with Disabilities Act2 ("ADA") issues that will remain useful for years to come. Remote work has become commonplace in 2020 to an extent we have not seen previously, and we can anticipate that employees' expectations to take leave or be accommodated with remote work will increase as well. We are also seeing an uptick in mental health issues and expect that trend to continue when the pandemic has past. Below is an overview of applicable federal legislation and considerations for accommodations.
The Families First Coronavirus Response Act And the Family And Medical Leave Act
The Families First Coronavirus Response Act3 ("FFRCA") took effect April 1, 2020 and will remain effective until December 31, 2020. The FFRCA provides paid, job-protected leave for employees if they are away from work because of specified COVID-19-related reasons. Employers must post a notice issued by the U.S. Department of Labor informing employees of their rights to leave in the workplace (with the other federally-required posters like equal employment opportunity and the FMLA). The FFCRA expressly provides that it does not preempt existing state or local paid sick leave entitlements, and this paid leave is in addition to leave available under existing employer policies. Significantly, employers cannot require employees to exhaust sick or paid time-off benefits before accessing this new paid leave. A violation of the law is considered a minimum wage violation under the Fair Labor Standards Act. With FFCRA-provided leave or traditional FMLA, school boards must generally return employees to the same or substantially equivalent position.
A. Emergency Paid Sick Leave ("EPSL")
Government employers, like school boards, and other employers (including private employers)4 with fewer than 500 employees, must provide full-time employees with up to 10 days (80 hours) of paid sick leave for specific circumstances related to COVID-19. Those reasons generally fall into three categories: (1) the employee has, is quarantined because of, or is experiencing symptoms and seeking a medical diagnosis for COVID-19; (2) the employee is caring for family members who are subject to quarantine requirements or recommendations related to COVID-19; or (3) the employee is caring for children whose school or daycare is closed, or whose childcare provider is unavailable, due to COVID-19. EPSL is available to employees who cannot come to work and cannot work remotely. Whether remote work is an option is up to the employer.
EPSL is available to employees regardless of length of employment. As noted, an employee gets up to 10 days (80 hours) of leave, so someone who works less than a 40-hour workweek gets leave based on his or her workweek. Employees who work irregular schedules get EPSL equal to the number of hours they worked, on a daily average, over the last six months (or if they have not been employed that long, based on the number of hours they would have reasonably expected to work).
The amount the employee is paid depends on the reason for the leave. For absences related to the employee's own condition, EPSL is the greater of the employee's regular rate of pay or the applicable minimum wage, but it is capped at $511 per day ($5,110 total). If, however, the absences are to care for others (either because they are sick or school/childcare is not available because of COVID-19), EPSL is the greater of two-thirds of the employee's regular rate or the applicable minimum wage, not to exceed $200 per day ($2,000 total).
EPSL is not a renewable benefit. Accordingly, an employee who takes 80 hours of EPSL because he tests positive for COVID-19 will not have an EPSL available if a family member later tests positive and needs care. In that case, the employee will have to take other paid or unpaid leave. If, however, the employee later needs leave to care for a child whose school or daycare is closed, there is another type of paid leave available (addressed below).
B. Expanded Family and Medical Leave ("EXFMLA")
The FFCRA created a new, limited paid FMLA that schools and other government employees (and private employers with fewer than 500 employees) must provide. EXFMLA is only available to an employee who needs leave to care for a child whose school, daycare, or childcare is unavailable because of COVID-19. This new paid FMLA is not available for an employee's own sickness or a family member's sickness-only for child-care needs caused by COVID-19. Also, EXFMLA is not in addition to FMLA the employee has already taken. For example, if an employee took four weeks of FMLA in January, she only has eight weeks of FMLA available for the remainder of the year (assuming his employer uses the calendar year for FMLA purposes), whether that is traditional FMLA or EXFMLA.
Employees who need this leave and cannot work remotely can take up to 12 weeks of job-protected EXFMLA. The first 10 days are generally unpaid, but during that period, the employee may use accrued personal or sick leave (including EPSL outlined above), but the employer cannot require employees to do so. After the first 10 days, the employee must be compensated in an amount that is not less than two-thirds of the employee's regular rate of pay for the remaining time of protected leave, capped at $200 per day ($10,000 total). To qualify for this expanded leave, an employee must have worked for the employer for at least 30 calendar days (although there is no minimum number of hours...
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