Loren Kean Law

Loren Kean Law

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Best Practices to Handle Employee Leave During COVID-19 Joshua B. Loren and Bruce E. Loren | Apr 15 2020

The federal government recently enacted the Families First Coronavirus Response Act (“FFCRA”), which provides job-protected paid leave for employees affected by COVID-19. In light of the April 1 guidelines released by the Department of Labor (“DOL”), we have compiled a list of common questions and answers to help employers’ navigate through some of the confusing requirements.

  • Quick Overview of the FFCRA

The FFCRA affects only covered employers and provides a job-protected, paid leave of absence to employees: (1) who has or is expected to have COVID-19 (through a medical diagnosis or quarantine order); (2) who are the caretakers for someone who has or is suspected to have COVID-19; or (3) who care for a child whose school or childcare provider has closed as a result of COVID-19.

More information about which employers are covered under the FFCRA and other benefits it provides can be found in our previous newsletter here.

  • My Business is deemed non-essential and was ordered to close. Do all of my employees receive a protected leave of absence under the FFCRA?

No. The question to ask is whether the employee would be able to work “but for” one of COVID-19 related reasons discussed above. For example, an employee of a retail store who can no longer work because the store was closed is not provided a protected leave of absence under federal law, even if that employee was diagnosed with COVID-19 or is the caretaker for someone who has. When an employee is prevented from working because the business is non-essential, the reason for the inability to work is the business closure, not a COVID-19 diagnosis.

  • My employee has been working remotely for the past several weeks and recently told me they have COVID-19. Does this employee get paid leave under the FFCRA?

Yes, if the employee’s illness prevents them from working the hours they had been working from home. The answer becomes more complicated for employee’s who are asymptomatic. The safe answer would be to provide leave to employees who have been diagnosed with COVID-19 but present no symptoms, even if the employee tells you that they are still able to work. The virus affects different people in different ways, and someone with no symptoms one day can be severely affected the next.

  • My business reduced pay across the board two weeks ago. Can I pay an employee now requesting COVID-19 related leave that new, reduced rate?

No. Payments for leave under the FFCRA use a “lookback approach,” calculated using an average of hours and pay over the six months prior to the leave being taken. Employer’s should take particular care when calculating leave benefits for employees with complex pay structures, such as those based upon commission.

  • Conclusion

Small and medium sized businesses are at particular risk from the current COVID-19 pandemic. The liability for wrongly denying employee leave can be significant, and could include back pay, liquidated damages, and/or attorneys’ fees. The safest option is to take a liberal approach to granting leave under the FFCRA and heavily documenting all decisions to ensure that your business in a strong position to seek relief at the end of this crisis. The laws surrounding these issues are in a constant state of change, please consult with an experienced employment attorney for any specific legal questions.

Joshua B. Loren and Bruce E. Loren of Loren & Kean Law are based in Palm Beach Gardens and Ft. Lauderdale. Loren & Kean Law is a boutique law firm concentrating in construction law and employment law. Mr. Loren focuses his practice on labor and employment law, only representing the interests of employers and business owners. The firm represents businesses in a wide range of disputes, including OSHA investigations and citation contests, DOL investigations, discrimination claims, and state and federal wage litigation. They can be reached at jloren@lorenkeanlaw.com or bloren@lorenkeanlaw.com or 561-615-5701.