Resources for Employees During the COVID-19 Crisis
Families First Coronavirus Response Act
Congress has enacted a new law designed to provide immediate benefits to workers affected by the COVID-19 pandemic. There are two separate and distinct provisions that apply to paid time off from work.
The first provision amends the Family Medical Leave Act with respect to certain terms until December 31, 2020.
THE FAMILY MEDICAL LEAVE ACT AMENDMENTS
To be eligible, you must be employed for at least 30 calendar days by the employer from which you are seeking Emergency Paid Leave.
Your employer must employ fewer than 500 employees for each working day during each of the 20 or more calendar workweeks in the current or preceding calendar year.
You qualify for Public Health Emergency Leave if you are unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency. Therefore, if your city, state or county has declared a public health emergency and your schools and/or day care facilities are closed, you meet this qualification.
PAID LEAVE UNDER THE AMENDED FMLA
The first ten (10) days of Public Health Emergency Leave under the Amended FMLA can be unpaid leave and the employee may elect to use any accrued paid leave (vacation, paid time off, sick leave) in order to be paid for those first ten (10) days off. However, after the initial ten (10) days of leave, the employer must provide paid leave for each day of Public Health Emergency Leave at the rate of an amount that is not less than two-thirds of an employee’s regular rate of pay (as determined under section 7(e) of the Fair Labor Standards Act of 1938 (29 U.S.C. 207(e)); and (II) the number of hours the employee would otherwise be normally scheduled to work. If you work a varied schedule, the employer is directed to the average number of hours that the employee was scheduled per day over the 6-month period ending on the date on which the employee takes such leave. In no event shall such paid leave exceed $200 per day and $10,000 in the aggregate.
Restoration to your job is not mandatory for employers who employs fewer that 25 employees IF: (1) the position no longer exists due to economic conditions or other changes in operating conditions of the employer— (i) that affect employment; and (ii) are caused by a public health emergency during the period of leave. However, an employer must make reasonable efforts to restore you to a position equivalent to your position when you took Public Health Emergency Leave and must make reasonable efforts to contact you if an equivalent position becomes available within a year of your taking leave.
Be aware that the Department of Labor will have the authority to issue regulations for good cause to exclude certain healthcare providers and to exempt small businesses with fewer than 50 employees where the imposition of the requirements under the Emergency Amendments to the FMLA would jeopardize the viability of the business as a going concern. However, employers are presumptively covered by the Emergency Amendments unless they can establish good cause not to comply with the new requirements.
The second provision pertaining to paid time off because of COVID-19 is a completely new law.
EMERGENCY PAID SICK LEAVE
Congress also enacted a separate paid sick leave law for the period of time that you are unable to work (or telework) because:
(1) You are subject to a Federal, State, or local quarantine or isolation order related to COVID–19.
(2) You have been advised by a health care provider to self-quarantine due to concerns related to COVID–19.
(3) You are experiencing symptoms of COVID–19 and are seeking a medical diagnosis.
(4) You are caring for an individual who is subject to an order as described in paragraph (1) or has been advised as described in paragraph (2).
(5) You are 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. (this provision overlaps with the FMLA amendments)
(6) You are 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.
If you are an employee of an employer who is a health care provider or an emergency responder, it may elect to exclude you from the application of this subsection.
The paid sick time benefit is as follows:
(A) For full-time employees, 80 hours.
(B) For part-time employees, a number of hours equal to the number of hours that such employee works, on average, over a 2-week period.
An employer may not require, as a condition of providing paid sick time under this Act, that the employee involved search for or find a replacement employee to cover the hours during which the employee is using paid sick time.
The paid sick time under subsection (a) shall be available for immediate use by the employee for the purposes described in such subsection, regardless of how long the employee has been employed by an employer.
An employee may first use the paid sick time under subsection (a) for the purposes described in such subsection. An employer may not require an employee to use other paid leave provided by the employer to the employee before the employee uses the paid sick time under subsection (a).
You can apply for unemployment benefits if you have been laid off or had your hours reduced due to COVID-19. The state is relaxing certain rules during the COVID-19 crisis, and has eliminated the waiting period for benefits.
The federal government is also planning on providing funding to states with large increases in unemployment benefit applications so it is possible that extended benefits and/or disaster relief benefits will become available even though they are not current available.
It will take diligence and patience to apply for the unemployment benefits you need during this crisis.
Information and answers to commonly asked questions is available at https://twc.texas.gov/news/covid-19-resources-job-seekers.
Applying online is likely your best and easiest option. You can apply online at https://twc.texas.gov/jobseekers/unemployment-benefits-services.
If the main site is down, try this specific link to register online and apply for benefits: https://apps.twc.state.tx.us/UBS/changeLocale.do?language=en&country=US&page=/security/logon.do
The telephone # to apply is 800-939-6631. TWC’s Tele-Center is open from 8 a.m.-6 p.m. Central Time Monday through Friday.
If you apply for benefits and believe you’ve been wrongfully denied, it is critical to meet the deadlines and follow the instructions to file an appeal in the notice you receive from the TWC. If you need help appealing denied benefits or have other legal questions about your own individual eligibility for unemployment, you can call us.
Pay Requirements for Work Performed at Home, Part-Time Work, and/or Over-Time Hours
The Fair Labor Standards Act (FLSA) requires many, but not all, employers to pay at least the minimum wage for all hours a non-exempt employee works and overtime pay for working over 40 hours per week, regardless of whether the employee works those hours on the job or at home.
This law can also provide protection for salaried employees who are either misclassified or who have their salary docked or reduced for not working “full-time” or for working at home.
The Department of Labor provides answers to some common FLSA COVID19 related questions here > https://www.dol.gov/whd/healthcare/flu_FLSA.htm.
If you need individual legal advice, please fill out our overtime questionnaire.
Accommodations for Disabled and Immuno-suppressed Employees
If your employer has more than 15 employees, you can request reasonable accommodations to protect yourself from COVID19 if you have a disability that puts you at a high risk and/or your doctor has advised that you take certain precautions due to your disability. An employer does not have to provide accommodations that would pose an undue hardship to the business. It can be difficult to know when an accommodation is legally required and reasonable versus when an accommodation can be denied because it poses an undue hardship. The employee and employer are, however, always required to work together in good faith to explore and talk about possible accommodations and the employee’s individual disability.
If you need individual legal advice, you can fill out our termination questionnaire.
Family and Medical Leave Act Discrimination & Retaliation
Employers who are covered by the Family and Medical Leave Act cannot discriminate or retaliate against workers for taking Family and Medical Leave. If you need advice about taking Family Medical Leave or retaliation you’ve experienced after taking Family Medical Leave, you can fill out our termination questionnaire.