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Tag: covid-19

Covid-19 Pandemic Related Caregiver Discrimination

August 26, 2022

For individuals with caregiving responsibilities (“caregivers”), the effects of the Covid-19 coronavirus pandemic go beyond work obligations. While navigating hybrid work schedules and tighter shifts, they must also find time for their duties to spouses, children, and disabled relatives. These individuals may live with children too young to receive the vaccine or relatives who are immunocompromised. As they juggle work and caregiving duties, they may face employment related discrimination because of these pandemic-related caregiving responsibilities. Fortunately, the US Equal Employment Opportunity Commission (EEOC) provides regulations to protect employees from workplace prejudice because of any caregiving obligations they may have to family members and loved ones. This article will summarize those guidelines to assist employers and employees in addressing pandemic-related caregiving discrimination. 

When Does Workplace Caregiver Discrimination Violate US Employment Laws? 

According to the EEOC, employers violate US employment laws when they discriminate against an employee/applicant with caregiver responsibilities based on their sex (sexual orientation and gender identity), pregnancy status, race, age, national origin, religion, disability, or genetic information. It is also unlawful for an employee to discriminate against an employee/applicant based on their association or caregiving responsibilities to people with disabilities or other protected characteristics (race, ethnicity, etcetera). 

What About Caregiving Triggers Discrimination Considerations?

Making employment decisions based on gender stereotypes is also illegal. For example, when the company fails to hire female applicants because they assume they would focus more on caring for their children and elderly relatives than on their work. Even further, EEOC regulations prohibit punishing female employees more harshly than male colleagues for absences or missed deadlines because of pandemic-related caregiving obligations. These regulations apply to discrimination against male employees, as well. It is unlawful to discriminate against male staff who are caregivers based on gender stereotypes that women are caretakers while men are breadwinners. Employers may not deny male employees leave or requests for a flexible schedule to attend to family members or loved ones infected with COVID-19 if they grant such requests to female staff. 

What About LGBTQ Employees and Applicants?

EEOC regulations prohibit discrimination against LGBTQ employees and applicants with caregiving responsibilities because of their sexual orientation. Employers may not deny requests for flexible hours or office leave from these individuals because of their gender identity if they grant permission to such requests from other staff members. They may also not require these employees to grow through rigorous procedures before granting their leave requests if other workers do not go through such processes. 

What About Discrimination Against an Employee With Caregiving Responsibilities Based on Race and Ethnicity?

Discriminating an employee with caregiving obligations because of their race, ethnicity, or national origin is illegal under EEOC laws. 

For instance, managers may not require black or Asian employees to go through burdensome processes to obtain leave or a flexible work schedule to take care of a relative, while others have their requests granted without such procedures. 

Employers may also not deny an employee’s requests for leave to care for a loved one from another country with a COVID-19 infection because a COVID-19 variant was identified in the infected individual’s home nation. 

Caregiver workplace harassment or discrimination based on citizenship or immigration status is also unlawful under Department of Justice laws. 

What About Discrimination Because of Caregiving Responsibilities to an Individual With Disabilities?

Under EEOC regulations, it is illegal to discriminate against an employee who is a caregiver to an individual with disabilities because of their association with the care recipient. Some instances where such discrimination can occur include refusal to: 

  • promote or hire an applicant/employee who is a parent to a child with a mental health disability that escalated during the pandemic because the applicant/staff would not show commitment to their duties due to their caregiving obligations. 
  • hire an applicant who has a spouse with a disability that has a risk of severe illness from COVID-19 infection because the employer wants to avoid the increased health insurance costs when the company includes the ailing spouse in its healthcare plan. 
  • include the applicant’s spouse in the company’s health insurance plan after hiring the applicant because of the disability mentioned above.

Reasonable Accommodation for Caregivers Under US Federal Employment Laws

EEOC regulations do not give US employees a right to workplace accommodations (telework, flexible schedules, overtime, etcetera) because of their caregiving duties. 

However, other US laws make provisions for such employee rights, such as the Family and Medical Leave Act. The act allows workers to request office leave for caregiving purposes. 

Other state and local laws also provide reasonable accommodations for workers with caregiving obligations. That said, employers can grant workplace accommodations to staff who are caregivers at their discretion, as long as they do so in a non-discriminatory manner. 

How Employees Can Respond to Discrimination Based on Covid-19 Related Caregiver Status 

Employees with caregiver status who are victims of discrimination because of their race, gender, sexual orientation, or affiliations with a person with a disability should report the harassment/discrimination to their employers. 

State, local government, and private sector employees should report discrimination incidences to the EEOC, state, or local government agencies responsible for employment discrimination. They may file their complaints with the EEOC within 180 in states without a local EEO agency and 300 days in states with a local EEO agency. 

Federal workers should report discrimination cases to their agency’s EEO office within 45 days. State and local government anti-discrimination agencies also have timelines for state and local government employees to report harassment cases. 

Employers and their staff can obtain further details on caregiver discrimination from the EEOC’s caregiver discrimination policy guidance, associated fact sheet, and employer best practices document. 

To sum it up…

US employment laws prohibit all kinds of workplace discrimination. If you’ve been a victim of workplace harassment because of your caregiver status, you can take steps to protect your rights and those of other employees. At the Law of Office of Sheri Oluyemi, we bring our experience in US employment laws to help employees get justice at work. Reach out to us today to request a free teleconference, and let’s safeguard your right to fair treatment in your workplace.

Vax Compliance: A Guide to OSHA ETS for Private Sector Employers

November 8, 2021

The Occupational Safety and Health Administration (OSHA) has released its COVID-19 mandatory vaccine mandate by the federal government for the private sector under the Emergency Temporary Standard (ETS). This article will take a quick look at the OSHA ETS and what it means for your company. 

What Does the Policy Say? 

According to the ETS, employers with a workforce of 100 or more employees are to put in place a mandatory vaccine or weekly testing and mask policy. 

Generally, these COVID-19 company policies should comply with the ETS, OSHA’s prohibition against retaliation for reporting workplace illnesses or injuries, the Centers for Disease Control and Prevention’s “Key Things to Know About COVID-19 Vaccines, and the criminal penalties associated with knowingly supplying false statements or documentation.

Which Companies Aren’t Covered? 

While employers with 100 or more employees must meet the ETS requirements, some businesses do not fall under the mandatory policy. They include: 

  • Employers/employees under the Safer Workforce Task Force COVID-19 Workplace Safety

  • Healthcare workers already under the existing healthcare ETS

  • Employees working from home or exclusively outdoor 

What Are the Effective Dates of the ETS?

The ETS mandates that employees must complete all the policy requirements aside from the testing for employees who have not completed their primary vaccination doses within 30 days of its publication. 

Also, company management must begin testing of staff members who have not completed the primary doses of their vaccination 60 days after the policy’s publication. 

Are There Any Vaccination Exemptions? 

While every private-sector employer must enforce mandatory vaccinations for all employees under the ETS policy, some members of a workforce may qualify for exemptions. Examples of such individuals include:

  • Workers who have a medical condition that makes it necessary to delay a vaccination

  • Employees who qualify for a reasonable accommodation under US civil rights laws because of religious beliefs, disabilities, etc

  • Staff members who have illnesses with a diagnosis that suggest that they should not receive the vaccine 

What About Paid Time Off for Vaccinations 

The ETS also requires employers to provide paid time off for members of their workforce to get vaccinated and recover from any effects the vaccine may cause.

The stated timeline is four (4) hours at the standard pay rate to get each dose of the vaccine. For the side effects of the vaccination, the OSHA ETS mandates every employer in the private sector to provide a reasonable timeframe and paid sick leave to enable a full recovery. 

Masking and Testing Requirements 

Employees who have not completed their vaccine doses must undergo weekly testing according to the ETS. The policy also does not require employers to pay for the tests. 

Also, a staff member must immediately notify their employer after a positive COVID-19 test and cannot resume work until they meet the return requirements. 

The ETS also requests employees who are not fully vaccinated to wear face masks indoors or whenever they’re in a vehicle with a colleague unless it interferes with work operations. 

Vaccination Records 

According to the ETS, employees must have the following documents on file: 

  • Records of vaccination for each employee regardless of whether they’re fully or partially vaccinated

  • Records of test results provided by each employee

However, businesses who have acquired this information before the ETS policy are not required to do so all over again. Note that these are medical records and should be treated as confidential under the ADA.

Get Legal Help For Your Company

Have questions? Contact us.

How to Reduce Risk of Litigation: Mandatory Covid-19 Vaccine Religious Exemption

September 9, 2021

As we attempt to escape the dark days of the COVID-19 pandemic, thanks in no small part to the availability of a vaccine, new changes are still being made in offices across the United States and the world to make that exit a reality. In the US, several  employers require staff members to take vaccinations to keep the office safe and free from health scares.

But one size does not fit all — several employees are requesting an exemption from compulsory vaccinations on various grounds, including religious reasons. But is this a conversation worth having? And what does US federal law say about the rights of individuals to exempt themselves from compulsory vaccinations on religious grounds? Let’s find out.

Understanding Title VII of the Civil Rights Act of 1964

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees based on religious beliefs or practices. In the case of the mandatory COVID-19 vaccinations, this law requires small business owners to accommodate a staff member’s request to be exempted from compulsory vaccinations because of sincerely-held religious beliefs.

Of course, this does not mean employers must accept an employee’s plea not to take the vaccine without question. Based on specific clauses in Title VII, company executives can look into religious objections made by employees to determine whether their requests are legitimate and fall in line with the requirements of the law.

Quickly, let’s look at some clauses in Title VII that may help small business owners handle issues surrounding religious exemptions from COVID-19 vaccinations.

Determining Whether the Employee’s Request is Based on Sincerely Held Religious Beliefs

While US laws require company executives to accommodate a staff member’s sincerely held religious beliefs, it can be tricky to recognize this belief, faith, or practice.

For clarity, Title VII does not recognize philosophical, political, and social ideologies under religious beliefs. As such, employees cannot use those factors as a basis to exempt themselves from vaccinations. Title VII also does not cover personal preferences.

That said, when an employer is not clear on the religious beliefs of a staff member, the employer can request additional information – either through documentary evidence of the tenants and dogma of the faith or one-on-one explanations – to clarify the situation. However, before casting doubt on an employee’s beliefs, the employer must ensure her reservations are objective and not coming from a place of discrimination. To be on the safe side, though, we would recommend companies consult legal help for complete clarity and guidance before making any move to question a team member’s religious objections.

Refusing Appeals for Religious Vaccination Exemptions Because of Undue Hardship

Under Title VII of the Civil Rights Act, employers may deny a staff member’s plea for exemption if granting the request would cause undue business hardship. For better understanding, approving a request for religious accommodation may cause undue hardship if:

●      It will significantly decrease business efficiency and productivity

●      It will infringe the rights and privileges of other members of the workforce

●      It puts staff and  customers at risk of workplace hazards

●      It may require other members of the team to execute more than their quota of hazardous tasks

●      The accommodation is too costly

Accommodations to Consider in the Event of Religious Exemptions from Mandatory COVID-19 Vaccinations

If an employer decides to grant an employees’ requests to be exempted from COVID-19 vaccinations, the employer may need to make some changes around the office to accommodate these individuals. Some of the steps an employer can take for exempted employees may include:

●      Mandatory wearing of face masks

●      Social distancing within office premises

●      Remote working

●      Isolation to a specific workplace

●      Alterations to employee’s work schedule to limit interactions with clients and other members of the workforce

Before putting these measures in place, the employer will need to review company policies on religious accommodation with company executives and managers; discuss with employees the proposed accommodations to be put in place around the office; and, appoint a supervisor to process and respond to all requests for religious accommodations.

Get Legal Help 

Employment laws in the US can be tricky, and when it comes to religious exemptions from COVID-19 vaccinations, small business owners may require the aid of a legal professional to navigate the muddy waters and avoid any potential litigation.

Therefore, if you are in need of an attorney to help you with issues relating to religious exemptions from COVID-19 vaccinations, consider contacting The Law Office of Sheri Oluyemi, LLC. We have an experienced team of professionals who specialize in employment law cases for small businesses, and we can provide your company with the legal counsel to respond to religious accommodations for COVID-19 vaccinations.

Exemption from Mandatory COVID-19 Vaccine for religious employees

July 2, 2021

According to the law and guidelines from the Equal Employment Opportunity Commission (“EEOC”), it is possible for employers to require their employees receive a COVID-19 vaccination in most circumstances. This does not mean that all employers will make this a requirement, of course. But, they have the right to do so as a means to help improve the safety of their other employees, clients and customers.

Yet, there are certain exemptions from these mandatory COVID-19 vaccines that can be applied in certain cases. One of these is a religious exemption. Employee who demonstrate that their faith prohibits vaccination, would not automatically be not required to get a vaccine. The EEOC says employers are required to provide reasonable accommodation to these workers if their sincerely held religious beliefs, practices, or observance prevents vaccination. The only exception would be if the accommodation would create an undue hardship under Title VII of the Civil Rights Act of 1964.

Understanding the Religious Accommodation Standards

As the vaccines are being rolled out, more and more employers will likely start to see objections to getting the vaccine. Therefore, it is important for employers, as well as those who are seeking accommodations, to get a better understanding of what the objections entail.

Title VII requires that employers provide accommodations and exemptions to employees that object to the vaccine due to their religious beliefs. It is important to note the term “sincerely held religious belief” in these instances.

According to the EEOC, the definition of religion can go beyond just membership in a certain church or a belief in God. It could also include moral and ethical beliefs that are sincerely held. An example of this might be someone who has moral beliefs that they should not have certain substances and chemicals injected into them. This increases the potential number of people that might attempt to use religious exemptions as a means to not get the vaccine.

Can Employers Question the Sincerely Held Religious Beliefs of an Employee?

This is a tricky area of the law, and it is important that employers do not attempt to contact someone’s place of worship, and that they don’t question an employee incorrectly. Most of the time, employers will assume that the objection based on religious beliefs is honest.

However, there may be times that an employer has a reason to question whether the employee is being sincere or if it is truly the nature of their religion. It’s best to have legal counsel to help with these matters. If there is an objection to the employee’s beliefs, the employee can provide written materials and forms to provide a further explanation. Again, employers will only want to broach this subject after talking with an attorney.

Options for Reasonable Accommodation 

What are some of the various types of reasonable accommodations that could be provided for the employees? Many options are potentially available. Of course, because there are so many different types of workplaces, there could be many different types of accommodations that could work. This also means that not all reasonable accommodations will work for all work environments.

One of the simplest options that can work for some employers would be to allow the employees to wear masks and continue to socially distance themselves while in the workplace. Another option that could work for some types of work would be remote working. 2020 proved that remote work can be a good option for many types of companies.

Many businesses have already set up these types of systems and have been using them for their employees for months. They could simply allow those who do not want to get the vaccine based on their religious beliefs to continue working from a remote location.

Another option that might work for certain employers would be to provide an isolated area for that employee to work. This can ensure that they do not come into contact with others in the workplace. This solution will not work for all employers, of course.

When employers are coming up with potential reasonable accommodations, they must also make sure that they are legitimate options that will help the employee and their business. They cannot be retaliatory to “punish” an employee for not getting the vaccine.

What is Undue Hardship?

The limit to providing reasonable accommodations would be when those accommodations would present a hardship to the employer under Title VII. Employers cannot simply claim that they would have a hardship, though. They are required to show how making the accommodation for the employee would cause them undue hardship because of an exceedingly high cost or because it would cause problems with the operation of the business. The same would be true if the accommodation would compromise safety in the workplace, or if it infringes on the rights of other employees. If the accommodation requires that other employees do more than their usual share of work in place of the exempt employee, it could be considered undue hardship as well. The same would be true if the efficiency of the workplace decreases because of the accommodations.

The standard of proof for an undue hardship under Title VII does tend to be lower than when trying to meet undue hardship requirements for the Americans with Disabilities Act. Because it can sometimes be difficult to prove whether there is hardship in these cases.

Talk with an Attorney

Those employers who want to make sure they are abiding by the law when it comes to employees requesting reasonable accommodations for religious reasons will want to speak with an attorney.

Employees who worry that an employer is not providing them with reasonable accommodations or who is trying to force a vaccine despit

The Legality of an Employer-Mandated Covid Vaccine

March 28, 2021

Generally, Employers Can Make The Vaccine Mandatory

Since there are COVID-19 vaccines now available, are employers permitted by law to require employees to get vaccinated? The simplified answer is yes, in an employment at will state like Georgia, employers do have the right to mandate that their employees receive the vaccine. Employees who want to continue working at that employer will have to get a vaccine and can be fired, without legal recourse, if they do not.

Employment At-Will

Employment is often at-will, which means it is possible for either the employee to quit and walk away or for the employer to fire them at any time for no reason or for any reason. The employer will set the working conditions, and as long as those conditions meet federal law and guidelines, employees must abide by the employer’s standards, which will include health and safety guidelines and conditions. As we all know, the coronavirus pandemic is a major health and safety issue for every workplace.

A written fixed-term employment agreement, on the other hand, might not accommodate the unilateral inclusion of a mandatory vaccine requirement if this can be construed as a material term.

Civil Rights Legislation

According to guidance from the Equal Employment Opportunity Commission (“EEOC”) which is the federal agency that enforces various civil rights laws regarding discrimination in employment, generally barring specific exceptions, it is legal for employers to require their employees to be vaccinated against covid.

There was initially concern that requiring a vaccine could violate the Americans with Disabilities Act (“ADA”). However, that law prevents employers from conducting certain types of medical examinations, not including requiring vaccines that help to protect against COVID-19. By requiring the vaccine, the employer is not looking for any information about a person’s current health status or impairments, and as such, it does not constitute a medical examination. Therefore, per EEOC guidance at the time of publishing, it is not in violation of the ADA to mandate the vaccine and obtain employee certification of having been vaccinated.

Exemptions For A Mandatory Vaccine.

However, employers still must account for legal nuances. An employee with a disability and who has a medical reason to not get a vaccine will likely qualify for exemption for medical grounds under the ADA. Those who have a sincerely held religious belief that does not allow vaccines could get a religious exemption under Title VII of the Civil Rights Act of 1964 (“Title VII”). Those who fall into either or both of these categories and who cannot be vaccinated will want to seek an exemption based on those grounds.

Upon requesting an exemption, the employer must engage in an interactive conversation with all stakeholders to determine whether a reasonable accommodation exists. Some of these reasonable accommodations might include the use of personal protective equipment, working separately from others, or working from home, for example. As long as there are means to accommodate unvaccinated employees that are not unduly burdensome to the employer, it would be illegal to terminate such an employee.

Generally, Employers Can Decline To Make The Vaccine Mandatory

A common question addresses what would happen if an employer discovers that a worker cannot be vaccinated because of a disability or religion, but this creates a risk in the workplace. In these cases, employers are not allowed to exclude that employee from the job or take any other action unless they do not have any other means of providing reasonable accommodations that could help reduce the risk presented to themselves and that they present to other people.

But what about the employer’s general duty to maintain a safe workplace free from known hazards under the Occupational Health and Safety Act (“OSHA”)? There is no federal mandate that requires all employers to make their workers get vaccinated. They can decide on a case-by-case basis. Employers will have to determine what makes the most sense of them and their employees. The location and type of work that is being done will often factor into whether an employer should require vaccination. Those companies that are public-facing and have regular in-person interactions will be more likely to require vaccination from the employees. It provides added safety, and it is something that many of the customers and clients will expect. Those that do not necessarily have face-to-face encounters might not require vaccination.

Potential Pitfalls Requiring Other Vaccine Considerations

If an employer is requiring that employees receive vaccines, they may want to consider paying the employees for the time it takes to get the vaccine. Often, people have to take time out of their day to wait in line for the vaccine.

Federal law entitles employees to compensable work time for these waits if the employer requires it. If the employers do not provide payment for the time that it takes to get the vaccine, they would violate the law, which can carry heavy penalties. If there is a union involved, there could also be other collective bargaining agreements or further obligations the employer would have to meet.

Some employers might want to reduce the wait time by having a third party administer the vaccine at their workplace. They can schedule the appointments, and it could reduce the amount of time that it takes to get everyone vaccinated. However, they will want to determine if any supposed injuries from getting the vaccine might trigger their worker’s compensation insurance liability coverage. Employers should check with their insurance company prior to making a decision.

* * *

As more places start to open, and as more people go back to in-person work with the vaccines readily available, employers should seek counsel about what they can do within the confines of the law in their unique workplace.

DOL Revisions to FFCRA Regulations: What You Need to Know

September 25, 2020

The Families First Coronavirus Response Act (FFCRA) Regulations were promulgated by the US Department of Labor to implement the FFRCA. Our Employment Law Blawg summary of the FFCRA is here. In response to a ruling from the U.S. District Court in the Southern District of New York, the initial regulations effective on April 1, 2020 were replaced effective, September 16, 2020. Here’s what you need to know about the revisions.

Changes to the regs were deemed necessary to improve the process of taking and requesting paid leave, including the availability of leave and related terms. The DOL aimed to achieve consistency and clarity throughout the regs, and in that vein, the new revisions were outlined to provide the following:

  • Reaffirmation that employees can only take FFCRA leave if and when work is available to them. That is, if someone is on a work reduction layoff, they cannot claim FFCRA leave because there is no work available at the moment.

  • Reaffirmation that employer approval is required for all intermittent leave taken under FFCRA. Failure to seek employer approval will result in denial of FFCRA leave benefits.

  • Clarification that supporting documentation should be provided as soon as possible. Employees must do their due diligence to provide employers with paperwork substantiating their eligibility for leave as quickly as they can when requesting FFCRA leave.

  • Correction of inconsistencies on the circumstances in which employees are required to notify or request permission from employers for FFCRA leave, or any leave related to expanded family and medical needs.

  • Revision of the definition of the term “health care provider”to be defined as “only employees who meet the definition of that term under the Family and Medical Leave Act regulations or who are employed to provide diagnostic services, preventative services, treatment services or other services that are integrated with and necessary to the provision of patient care which, if not provided, would adversely impact patient care.”

In sum, the newly revised FFCRA regs now defines the parameters for which employees have to request leave, or whether they can take leave without substantiated requests. It also clarifies some of the definitions outlined in the previous publication and it corrects inconsistencies to provide clearer guidelines for employers to follow when handling employee leave related to the coronavirus pandemic.

As the world has begun to reopen and the economy to rebound, employment laws must keep pace. However, it is a constant battle of finding balance, so future updates are to be expected as things continue to evolve.

Currently, employers and employees alike need concise, clear policies manage the public health crisis’ impact on their day-to-day operations, including staffing. The new regs are a good place to start with developing those policies for your organization today.

FAQ Series: Is Covid-19 A Disability?

May 11, 2020

As of May 11, 2020, the Equal Employment Opportunity Commission (EEOC) has not stated that covid-19 is a disability under the Americans with Disabilities Act (ADA).

Therefore, an employee who contracts covid-19 is not entitled to protections under the ADA including reasonable accommodations, freedom from discrimination, harassment and retaliation on that basis alone unless that employee also has a disability or is part of another protected class under other federal or state statutes.

Summary of the Families First Coronavirus Response Act (FFCRA) Paid Time Off

April 20, 2020

The federal Families First Coronavirus Response Act was signed into law on March 18, 2020 by President Donald J. Trump. It became effective on April 1, 2020 and is set to expire on December 31, 2020. The Act amends the federal Family Medical Leave Act to create two types of leave which did not exist previously. The law cannot be applied retroactively, thus it is applicable only to leave that was taken on or after its effective date.

The Act applies only to private businesses who employ less than 500 persons in the United States of America. While employers are to be granted tax credits which will provide reimbursement for wages paid and the cost of continuing health and medical benefits during the leave periods, employers of fewer than 50 persons can obtain an exemption if complying with the Act would jeopardize their continuation as a “going concern”.

Federal Paid Sick Leave Act (FPSLA)

First, the Act creates the Federal Paid Sick Leave Act (FPSLA). This FPSLA provides up to two (2) weeks paid sick leave for employees who have been employed for any duration of time and require leave for the qualifying covid-19 related reasons. Leave would be paid at full wages for one’s own mandatory quarantine, health care official recommended self-quarantine, and presence of covid-19 symptoms. Also, leave would be paid at partial wages for caring for a family member or roommate who is quarantined, undergoing a health care official recommended self-quarantine, caring for children under the age of 18 (or over the age of 18 but unable to care for self due to disability) whose caregiver or school is unavailable due to the pandemic, or similar condition.

Full pay is defined as the employee’s regular rate of pay up to $511 per day and $5,110 in the aggregate. And, partial pay is defined as two-thirds of the employee’s regular rate, up to $200 per day and $2,000 in the aggregate. Part time employees refer to employees who work anything less than forty (40) hours in a work week. For those who have variable schedules, an employer may use the daily average over the prior six (6) months to compute the average. 

Employers are prohibited from requiring an employee to use other forms of paid leave or from altering their existing paid leave, before granting an employee leave under the Act. EPSLA leave can be taken in addition to any paid leave program a covered employer may already have in place, as well as any paid sick leave benefits an employee may be entitled to under any other federal, state, or local law, or a collective bargaining agreement. Employers are also prohibited from requiring the employee to provide another employee to fulfil their job duties in their absence. Lastly, employers are also prohibited from all forms of retaliation or discrimination against an employee for having exercised their rights under the Act. Penalties for failure to provide this paid leave is viewed by the US DOL as a failure to pay minimum wages.

 Employers are required to post or email the notice of the rights poster under the Act. Employer are not required to pay out any unused leave upon separation. 

Emergency Family and Medical Leave Expansion Act (EFMLEA)

Secondly, the Act creates a new qualifying reason which is the Public Health Emergency Leave to situations where an employee is unable to work because the employee must care for his or her son or daughter (as defined under the FMLA) whose school is closed or whose childcare provider is unavailable due to a public health emergency; the Emergency Family and Medical Leave Expansion Act (EFMLEA). This law provides up to twelve (12) weeks of leave paid time off work. The first two (2) weeks of leave would be unpaid, then the following ten (10) weeks of leave would be paid at partial pay which is two-thirds the employee’s regular rate of pay based on hours regularly scheduled to work. EPSLA as described above may be used for first two otherwise unpaid weeks of leave. An employee may elect to use accrued leave for this two week period, but the employer cannot require its use.

EFMLEA is available for employees who have been on the employer’s payroll for 30 of the prior 60 days. However, this leave time may be denied to health care workers and emergency responders, regardless of their tenure. EFMLEA can be used on an intermittent basis.

Employers may require or elect that other types of leave run concurrently. For instance, EFMLEA leave time counts towards the old FMLA leave time. However, if concurrent with other types of leave, then the employer must pay the greater of the two rates of leave. Wages are capped at $200 per day and $10,000 in the aggregate, for a total of no more than $12,000 when combined with two weeks of paid leave taken under the EPSLA. 

Employees are entitled to job protection under the Act, meaning that employers are required to return employees to the same or similar position they occupied prior to taking leave. However, employers may qualify for an exemption from reinstatement if the employer has fewer than 25 employees. 

Similar with the EPLSA, employers are prohibited from interference with this right and prohibited from retaliation or discrimination against any employee for exercising these rights.

The Act does not provide an individual right of action to include civil damages in a lawsuit against employers with fewer than 50 employees in 75 mile radius.  

Employees are required to provide notice to the employer of the need for leave, as soon as is possible. However, they are not required to utilized DOL forms. For various reasons, including in order to obtain the promised tax credits, however, employers should retain some documentation to support the circumstances warranting leave and its granting of same.

In closing, two frequently asked questions are worthy of note:

  1. Telework is work – it is not leave. Thus, all accounted for teleworking hours must be compensated. 

  2. The FFCRA applies to circumstances which make the employee unable to work, whether or not there is work available. The determinative question is: would the employee would be able to work or telework “but for” being required to comply with a quarantine or isolation order for themselves, their child, etc. 

Read all the regulations, fact sheets and updates as they happen here.