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New Federal Laws Support Employees During the COVID-19 Pandemic


April 3, 2020 by Linda Gallagher
Category: Leave Policies , COVID-19

New Federal Laws Support Employees During the COVID-19 Pandemic


Fraudulent Unemployment Benefit Claims

Criminal actors are taking advantage of the Coronavirus and unemployment crisis. Government employees have been targeted and have received what looks like legitimate ESD benefit claimant letters in the mail. Unemployment claims are also being made to their employing organization.

For more information, see our blog post Unemployment Claims Fraud Rises During COVID-19 Pandemic.

Taking care of the health and safety of our local government workers is a top priority during the current COVID-19 pandemic. An important part of this care is to provide financial support for employees through updated paid leave policies and use of new federal and state support measures. This blog provides an overview of these resources.

Families First Coronavirus Response Act 

Enacted March 18, 2020, the Families First Coronavirus Response Act (FFRCA) applies to two types of leave: Emergency Paid Sick Leave and Emergency Paid Expanded Family and Medical Leave. Both types of leave can be taken only for work missed after the FFCRA’s April 1 effective date. This law applies to all public employers and to private employers with less than 500 employees. On March 20, a 30-day non-enforcement period was announced to enable employers to comply with the provisions of FFCRA. According to the U.S. Department of Labor (DOL)’s March 24, 2020 Field Assistance Bulletin 2020-1:

The Department will not bring enforcement actions against any public or private employer for violations of the Act occurring within 30 days of the enactment of the FFCRA, i.e. March 18 through April 17, 2020, provided that the employer has made reasonable, good faith efforts to comply with the Act. 

On April 1 the DOL issued temporary regulations implementing FFCRA in 29 CFR Part 826. The FFCRA expires at the end of the year when, hopefully, we will no longer have a need for COVID-19 related emergency paid leave for employees.

The Emergency Paid Sick Leave component

First, all public employers of any size (as well as private sector employers with less than 500 employees) are required to provide up to two weeks Emergency Paid Sick Leave for employees unable to work because of COVID-19, including because of a quarantine or isolation order or school closures for their minor children. Full-time employees are entitled to up to 80 hours of Emergency Paid Sick Leave. Part-time employees are entitled to the number of hours they typically work over a two-week period. The amount to be paid (and the monetary cap) depends on the reason for the sick leave. The covered reasons for leave and the amounts to be paid are detailed in Summit Law Group’s summary of the FFCRA and via information at the DOL's website, which is being updated frequently.

Other points about FFCRA Emergency Paid Sick Leave are:

  • It is available to all employees starting April 1, regardless of how long they have been employed by the employer;
  • Employers cannot require employees to use other paid leave prior to using Emergency Paid Sick Leave; and
  • Employers may exclude health care providers and emergency responders from Emergency Paid Sick Leave.

The Emergency Paid Expanded Family and Medical Leave component

The second type of paid leave under FFCRA is up to 12 weeks of Expanded Family and Medical Leave for employees who cannot work due to the need to care for a child because of COVID-19 related school closures or unavailability of childcare providers. The first two weeks (10 days) of this leave are unpaid, but the employee must be allowed to use Emergency Paid Sick Leave or other accrued paid leave, if requested, for those two weeks. For leave after the initial two weeks, the employer must pay the employee at least 2/3 of their regular pay. Pay is capped at $200/day and $10,000 in the aggregate. As with Emergency Paid Sick Leave, employers may exclude health care providers and emergency responders from this type of coverage.

Unlike the federal Family Medical Leave Act (FMLA) with unpaid leave requirements, employees are eligible for FFCRA paid family and medical leave even when working for smaller public and private employers with less than 50 employees. According to DOL’s online guidance,

(S)mall businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or childcare unavailability if the leave requirements would jeopardize the viability of the business as a going concern.

This exemption does not apply to public employers. There is financial relief for private employers in the form of tax credits for FFCRA leave paid to employees. For public employers, the new paid leave requirements are not funded by FFCRA.

Employers Must Inform Employees

Employers must post and distribute posters to inform employees of their rights to request FFCRA benefits effective April 1. The DOL has provided temporary regulations and guidance on frequently asked questions related to the model notice and suggests that employers may satisfy the posting requirement “by emailing or direct mailing this notice to employees, or posting this notice on an employee information internal or external website.”

Coronavirus Aid, Relief and Economic Security Act

The Coronavirus Aid, Relief and Economic Security (CARES) Act just became law on Friday, March 27, 2020. This 880-page law provides more than $2 trillion in different types of COVID-19 crisis-related relief for all sectors of the economy. Our understanding is that, unlike the FFCRA, the CARES Act includes significant relief for state and local governments. Direct relief for individuals includes payments from the I.R.S. to taxpayers with incomes up to $75,000, according to their most recently filed tax returns. In addition, unemployment compensation is enhanced with additional time and benefits for unemployment related to the COVID-19 pandemic.

According to the Washington State Employment Security Department’s COVID-19 webpage, the CARES Act includes three provisions that will help many individuals: 

  1. Additional compensation added to unemployment benefits;
  2. An extension of unemployment benefits for up to 13 weeks; and
  3. Unemployment assistance for many individuals who don’t qualify for regular unemployment benefits.

We are reviewing this new law and plan to provide further guidance in the future as it relates to local governments and supporting public employees.

Existing and Expanded State Programs

In addition to the new federal laws passed because of the COVID-19 pandemic, Washington State already has laws supporting both Paid Sick Leave and Paid Family and Medical Leave (PFML) programs. Since 2018 our state’s paid sick leave laws have required employers to provide one hour of paid sick leave to most employees for every 40 hours worked. Paid leave from these sick leave banks and other paid time off (PTO) may be used during the coronavirus pandemic. Employers have been updating their personnel manuals to include when paid leave may be used for COVID-19 related reasons. Please share your revised leave policies with us for our sample documents library.

Here are links to Washington State’s resources for when and how the new PFML benefits program may be used, as well as unemployment benefits for employees who are currently out of work.

In addition, workers compensation benefits, including medical payments and time loss, may also be available for covered on-the-job injuries and occupational diseases related to COVID-19. Here is a link to the state Department of Labor and Industries (DLI) Workers' Compensation Coverage and Coronavirus (COVID-19) Common Questions with answers for businesses, workers, and providers about workers' compensation coverage during the coronavirus outbreak.

Conclusion

Employers continue to encourage and accommodate working from home and telecommuting options for employees during this emergency. Many essential as well as ordinary tasks originally thought to require an in-person presence are now being done via telephone, video conference, or email. Employees who are unable to work even remotely because of COVID-19 now have more support, including options for paid leave. I recommend you consult with your agency’s legal counsel about the available programs.

It may be a matter of weeks or months before our workplaces start to return to normal. Protecting the health and safety of our employees and the public will encourage continued local government success.

Resources

For more suggestions and updates about taking care of public employees, MRSC also offers the following resources:


MRSC is a private nonprofit organization serving local governments in Washington State. Eligible government agencies in Washington State may use our free, one-on-one Ask MRSC service to get answers to legal, policy, or financial questions.

About Linda Gallagher

Linda Gallagher joined MRSC in 2017. She previously served as a Senior Deputy Prosecuting Attorney for King County and as an Assistant Attorney General.

Linda’s municipal law experience includes risk management, torts, civil rights, transit, employment, workers compensation, eminent domain, vehicle licensing, law enforcement, corrections, and public health.

She graduated from the University of Washington School of Law.

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