UPDATED – Coronavirus and Your Workplace Rights

As schools alternate between in-person, virtual and hybrid models, parents are increasingly facing caregiving challenges. Regardless of whether your child is attending school in person, continuing virtual instruction, or a combination, you may have questions about your workplace rights. Listed below are some of the most common questions and answers to help you navigate through these uncertain times.

My child’s school is operating on an alternate day (or other hybrid-attendance) basis. The school is open each day, but students alternate between days attending school in person and remote learning. They are permitted to attend school only on their allotted in-person attendance days. May I take paid leave under the Families First Coronavirus Response Act (FFCRA) in these circumstances? 

Yes, you are eligible to take paid leave under the FFCRA on days when your child is not permitted to attend school in person and must instead engage in remote learning, as long as you need the leave to actually care for your child during that time and only if no other suitable person is available to do so. For purposes of the FFCRA and its implementing regulations, the school is effectively “closed” to your child on days that he or she cannot attend in person. You may take paid leave under the FFCRA on each of your child’s remote-learning days.

My child’s school is giving me a choice between having my child attend in person or participate in a remote learning program for the fall. I signed up for the remote learning alternative because, for example, I worry that my child might contract COVID-19 and bring it home to the family. Since my child will be at home, may I take paid leave under the FFCRA in these circumstances? 

No, you are not eligible to take paid leave under the FFCRA because your child’s school is not “closed” due to COVID–19 related reasons; it is open for your child to attend. FFCRA leave is not available to take care of a child whose school is open for in-person attendance. However, if, because of COVID-19, your child is under a quarantine order or has been advised by a health care provider to self-isolate or self-quarantine, you may be eligible to take paid leave to care for him or her.

My child’s school began under a remote learning program out of concern for COVID-19, but has announced it will continue to evaluate local circumstances and make a decision about reopening for in-person attendance later in the school year. May I take paid leave under the FFCRA in these circumstances?

Yes, you are eligible to take paid leave under the FFCRA while your child’s school remains closed. If your child’s school reopens, the availability of paid leave under the FFCRA will depend on the particulars of the school’s operations.

  • If you are a Federal employee, you are eligible to take paid sick leave under the Emergency Paid Sick Leave Act.  But only some Federal employees are eligible to take expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act. Your eligibility will depend on whether you are covered under Title I or Title II of the Family Medical Leave Act. Federal employees should consult with their agency regarding their eligibility for expanded family and medical leave.
  • If you are a Federal employee, the State or local minimum wage would be used to calculate the wages owed to you only if the Federal agency that employs you has broad authority to set your compensation and has decided to use the State or local minimum wage.

TELEWORKING

What does it mean to be unable to work, including telework for COVID-19 related reasons?

You are unable to work if your employer has work for you and one of the COVID-19 qualifying reasons set forth in the FFCRA prevents you from being able to perform that work, either under normal circumstances at your normal worksite or by means of telework.

If you and your employer agree that you will work your normal number of hours, but outside of your normally scheduled hours (for instance early in the morning or late at night), then you are able to work and leave is not necessary unless a COVID-19 qualifying reason prevents you from working that schedule.

 

If I am or become unable to telework, am I entitled to paid sick leave or expanded family and medical leave?

If your employer permits teleworking—for example, allows you to perform certain tasks or work a certain number of hours from home or at a location other than your normal workplace—and you are unable to perform those tasks or work the required hours because of one of the qualifying reasons for paid sick leave, then you are entitled to take paid sick leave.

Similarly, if you are unable to perform those teleworking tasks or work the required teleworking hours because you need to care for your child whose school or place of care is closed, or child care provider is unavailable, because of COVID-19 related reasons, then you are entitled to take expanded family and medical leave. To the extent you are able to telework while caring for your child, paid sick leave and expanded family and medical leave is not available.

May I take my paid sick leave or expanded family and medical leave intermittently while teleworking?

Yes, if your employer allows it and if you are unable to telework your normal schedule of hours due to one of the qualifying reasons in the Emergency Paid Sick Leave Act. In that situation, you and your employer may agree that you may take paid sick leave intermittently while teleworking. Similarly, if you are prevented from teleworking your normal schedule of hours because you need to care for your child whose school or place of care is closed, or child care provider is unavailable, because of COVID-19 related reasons, you and your employer may agree that you can take expanded family medical leave intermittently while teleworking.

You may take intermittent leave in any increment, provided that you and your employer agree. For example, if you agree on a 90-minute increment, you could telework from 1:00 PM to 2:30 PM, take leave from 2:30 PM to 4:00 PM, and then return to teleworking.

 

 

 

May I take my paid sick leave intermittently while working at my usual worksite (as opposed to teleworking)?

It depends on why you are taking paid sick leave and whether your employer agrees. Unless you are teleworking, paid sick leave for qualifying reasons related to COVID-19 must be taken in full-day increments. It cannot be taken intermittently if the leave is being taken because:

  • You are subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  • You have been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  • You are experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  • You are caring for an individual who either is subject to a quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or
  • You are experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

 

Unless you are teleworking, once you begin taking paid sick leave for one or more of these qualifying reasons, you must continue to take paid sick leave each day until you either (1) use the full amount of paid sick leave or (2) no longer have a qualifying reason for taking paid sick leave. This limit is imposed because if you are sick or possibly sick with COVID-19, or caring for an individual who is sick or possibly sick with COVID-19, the intent of FFCRA is to provide such paid sick leave as necessary to keep you from spreading the virus to others.

If you no longer have a qualifying reason for taking paid sick leave before you exhaust your paid sick leave, you may take any remaining paid sick leave at a later time, until December 31, 2020, if another qualifying reason occurs.

In contrast, if you and your employer agree, you may take paid sick leave intermittently if you are taking paid sick leave to care for your child whose school or place of care is closed, or whose child care provider is unavailable, because of COVID-19 related reasons. For example, if your child is at home because his or her school or place of care is closed, or child care provider is unavailable, because of COVID-19 related reasons, you may take paid sick leave on Mondays, Wednesdays, and Fridays to care for your child, but work at your normal worksite on Tuesdays and Thursdays.

The Department of Labor encourages employers and employees to collaborate to achieve maximum flexibility. Therefore, if employers and employees agree to intermittent leave on less than a full work day for employees taking paid sick leave to care for their child whose school or place of care is closed, or child care provider is unavailable, because of COVID-19-related reasons, the Department of Labor is supportive of such voluntary arrangements.

May I take my expanded family and medical leave intermittently while my child’s school or place of care is closed, or childcare provider is unavailable, due to COVID-19 related reasons, if I am not teleworking?

Yes, but only with your employer’s permission. Intermittent expanded family and medical leave should be permitted only when you and your employer agree upon such a schedule. For example, if your employer and you agree, you may take expanded family and medical leave on Mondays, Wednesdays, and Fridays, but work Tuesdays and Thursdays, while your child is at home because your child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons, for the duration of your leave.

 

EMERGENCEY QUARATINE-RELATED PAID SICK LEAVE

 

What is Emergency Quarantine-Related Paid Sick Leave? Who is eligible?

The emergency sick leave requirements apply only to certain sick leave needs related to quarantine for the coronavirus. The law applies to public agencies and private entities regardless of size, but provides different rights depending on the size and other characteristics of the employer. All covered employees are protected against retaliation for using their rights under the law and are entitled to return to their jobs following leave. Emergency sick leave is available for immediate use by the employee, regardless of how long the individual has been employed by the employer. Emergency sick leave is separate from and does not count against employee’s accrued sick leave or other accrued paid leave

 

When is the Emergency Quarantine-Related Paid Sick Leave used?

Employees can take time off when they are subject to a specific, personal government-issued mandatory or precautionary order of quarantine or isolation. Those who need to care for a minor child who is subject to a specific, personal government-issued mandatory or precautionary order of quarantine or isolation also have important protections.

Emergency sick leave is issued to people who:

  • Have tested positive for COVID-19, whether or not they are displaying symptoms.
  • Have been in close contact with someone who has tested positive for COVID-19, but is not displaying symptoms.
  • Have been exposed to a person who has tested positive for COVID-19, but have not had direct contact with that person, and are not displaying symptoms

Note: Only these specific orders qualify under New York law. A general order to stay home does not qualify.

 

Employees will be entitled to emergency sick time and pay when they are subject to a mandatory or precautionary order of quarantine as follows:

Employers with 10 or fewer employees (with net annual income of less than $1 million in the last tax year):

  • Unpaid sick leave for the duration of the quarantine/isolation order
  • Special temporary disability insurance (TDI) and paid family leave (PFL) benefits for the duration of the quarantine/isolation, for which employees will need to apply

Employers with 11 to 99 employees and employers of 10 or fewer employees with net annual income of more than $1 million in the last tax year:

  • Paid sick leave for a 5-calendar day period, followed by unpaid sick leave for the remainder of the duration of the quarantine/isolation order
  • Special TDI and PFL benefits for the remainder of the duration of the quarantine/isolation order, for which employees will need to apply

Employers with 100 or more employees:

  • Paid sick leave for a 14-calendar day period during the quarantine/isolation order

Public employers, regardless of size (including school districts):

  • Paid sick leave for a 14-calendar day period during the quarantine/isolation order

Employees eligible for paid sick leave from their employer will receive the amount of pay they would ordinarily have received for the specified period (5 or 14 calendar days).

The law will provide new, special TDI and PFL benefits as follows:

  • Workers subject to a government-issued order of quarantine or isolation due to COVID-19 who cannot work as a result of that order will be eligible for both TDI and PFL benefits simultaneously, for which workers will need to apply. This includes PFL benefits when workers themselves, not a family member, are subject to the quarantine or isolation order.
  • PFL benefits will be available at 60% of pay up to a maximum of $840.70/week.
  • For workers making more than $840.70/week, TDI benefits will be available on top of PFL benefits at 100% of pay for the difference between their PFL benefits and their total pay, up to combined maximum of $2,884.62/week.

For purposes of this provision only, there is no waiting period for TDI benefits. However, workers who are eligible for emergency paid sick leave under this act must exhaust their emergency paid sick leave (not other employer-provided leave) prior to using these TDI/PFL benefits.

Workers who need leave to provide care for a minor dependent child who is subject to a government-issued order of quarantine or isolation due to COVID-19 may be eligible for just emergency PFL benefits (not TDI benefits). PFL benefits will be available at 60% of pay up to a maximum of $840.70/week.

These caregiving benefits are only available when the minor dependent child is subject to a specific, personal government-issued order of quarantine or isolation due to COVID-19 (see criteria above). Although benefits may be available when a school or place of care was closed because of a specific order due to a particular exposure risk to COVID-19, benefits are not available if the only thing that has occurred is that the child’s school or place of care is closed due to a general public health order.

Note: all employees receiving paid family leave are entitled to job protection and to continuation of their health insurance while on leave. 

The special TDI and PFL benefits will be available to all qualifying workers who are currently covered for TDI and PFL, including self-employed workers who have opted in to coverage by purchasing a policy and are eligible for benefits.

The leave and benefits under this act will not be available to workers subject to quarantine who are not sick and can safely continue to work during quarantine or isolation, such as by remote access, or to employees whose quarantine was the result of certain non-work travel to certain countries under certain conditions.

Additionally, benefits under this act will not be available to workers who, after June 25, 2020, travel (for reasons unrelated to work) to a state within the U.S. with a positive COVID-19 test rate higher than 10 per 100,000 residents, or higher than a 10% test positivity rate, over a 7-day rolling average, and which the commissioner of the department of health has designated as meeting the aforementioned conditions.

NEW YORK LAW

Employees who are eligible for coronavirus-related sick leave under federal law (such as the Families First Coronavirus Response Act) are not eligible for sick leave or benefits under New York’s emergency sick leave law except that if New York’s law would provide leave or benefits greater than those under federal law, employees are eligible for the leave or benefits for the difference between what is provided under federal law and New York’s law.

For more information, please contact Kessler Matura atoffice.

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