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COVID-19 AND THE EMPLOYMENT RELATIONSHIP

The rapid spread of COVID-19 has caused significant changes throughout the world and impacted nearly every facet of everyday life. Not surprisingly, there have been extreme changes in the employment context. Employers and Employees are struggling to deal with issues related to safety, payroll, benefits, medical leave, layoffs, terminations, and many others. This is a rapidly changing legal environment where companies and individuals must be vigilant in monitoring changes in the laws and regulations affecting the employment relationship.

It is important to note that the information contained in this article is a fairly high-level analysis of some of the impacts COVID-19 has had on the employment relationship. Companies and individuals are encouraged to speak with an attorney at McDonald & Kloth, LLC to discuss their particular circumstances and questions as these issues are very much case specific. case specific.

The EEOC has issued guidance on various ways COVID-19 impacts the employment relationship under the Americans with Disabilities Act (ADA) and Rehabilitation Act. While the EEOC’s article addresses several very important employment issues, a few of the most noteworthy are listed here:

  • When it is appropriate for an employer to make disability-related inquiries and medical examinations related to COVID-19.
  • When it is appropriate for an employer to send an employee home due to COVD-19 concerns.
  • Whether COVID-19 may be considered a “disability” under the ADA and Rehabilitation Act.
  • Whether an employer may be held liable for discrimination or retaliation under the ADA or Rehabilitation Act related to concerns that an employee has COVID-19.
  • Whether a reasonable accommodation must be granted to an employee where concerns of COVID-19 have been raised.
  • Whether an employer may require employees to work from home or telework.
  • What actions an employer may take during the hiring process related to COVD-19.

The EEOC’s full guidance can be found here: https://www.eeoc.gov/facts/pandemic_flu.html (see also, https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm).

COVID-19 also has impacted several other federal employment laws including, but not limited to, the Fair Labor Standards Act (FLSA), Family and Medical Leave Act (FMLA), and the Families First Coronavirus Response Act (FFCRA). The United States Department of Labor (DOL) has issued updated guidance on the FLSA, FMLA, and FFCRA related to the COVID-19 pandemic. The DOL’s statement on “COVID-19 and the American Workplace” may be found here: https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm.

Act-specific information may be found here:

FLSA: https://www.dol.gov/agencies/whd/flsa/pandemic

FMLA: https://www.dol.gov/agencies/whd/fmla/pandemic

FFCRA: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

It especially important to understand the new obligations created for companies under the FFCRA. This Act went into effect on April 1, 2020 and will remain in effect until December 31, 2020. It applies to all employers who have less than 500 employees. Moreover, unlike similar federal acts governing the employment relationship, the FFCRA does not include a minimum number of employees for its application (compared to the minimum threshold of 15 employees for Title VII, ADA, ADEA, etc.). Accordingly, even the smaller employers must abide be the new obligations found in the FFCRA.

Two of the most significant impacts of the FFCRA are the Paid Sick Leave and the amendments to the Family and Medical Leave Act. The Paid Sick Leave provision requires all employers to provide up to 80 hours of paid sick leave to employees who fall into one of six categories. Those categories are as follows:

  1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  4. The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2);
  5. The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions; and
  6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor. Except that an employer of an employee who is a health care provider or an emergency responder may elect to exclude such employee from the application of this subsection.

The calculation of wages due the employee is outlined in the Act. It is important that you contact an attorney to determine the applicability of this section as well as the proper calculation of wages.

Changes to FMLA. The FFCRA permits eligible employees to take up to 12 weeks of leave for a “qualifying need related to a public health emergency.” This “need” has been defined as a situation where the employee “is unable to work (or telework)” as a result of the need to care for his or her children under the age of 18 if his or her children’s school or care has been closed, or his or her children’s care provider is unavailable, due to a COVID-19 emergency declared by federal, state or local government.

The first 10 days of leave under this section may be unpaid. However, if the employee requires leave beyond the 10-day period, the employer must provide paid leave in an amount of pay not less than two-thirds of the employee’s “regular rate” of pay (as defined by the FLSA) for “the number of hours the employee would otherwise be normally scheduled to work.” There is a cap of $200 per day and $10,000 in the aggregate.

These provisions apply to all employers who employ less than 500 employees. This goes well beyond the FMLA’s minimum threshold of 50 employees and hours-worked requirement. As such, the smallest of employers must comply with these directives.

As noted above, this article is a general description of how COVID-19 has impacted some of the major federal acts governing the employment context. The State-counterparts to these federal laws, such as the Wisconsin Fair Employment Act and Illinois Human Rights Act, have been impacted in much the same way.

This is a fluid situation with new laws being enacted and old laws being revised. Only time will tell how courts will address specific issues raised in litigation involving COVID-19. It is crucial that you obtain the most relevant and up to date information on these changes as they develop. As essential workers, our attorneys at McDonald & Kloth, LLC are ready and available to field any question you may have regarding COVID-19 and its impact on the employment relationship.