INFORMATION ON CORONAVIRUS (COVID-19) PANDEMIC
FOR UNIONS REPRESENTING FIRST RESPONDERS
UPDATED APRIL 17, 2020
Table of Contents
What are the relevant employment laws discussed in this informational bulletin?
- ADA or Americans with Disabilities Act of 1990 is a federal law that prohibits discrimination based on disability.
- FFCRA or Families First Coronavirus Response Act of 2020, generally requires employers with less than 500 employees to provide employees with paid sick leave and paid expanded family and medical leave for specified reasons related to COVID-19, from April 1 to December 31, 2020. It includes the following two laws:
- EPSLA or Emergency Paid Sick Leave Act
- EFMLA or Emergency Family and Medical Leave Expansion Act
- FLSA or Fair Labor Standards Act of 1938 is a federal law which establishes minimum wage, overtime pay eligibility, recordkeeping, and child labor standards.
- FMLA or Family Medical Leave Act of 1993 requires certain employers to provide employees with unpaid, job-protected leave for qualified family and medical reasons.
- OSHA or Occupational Safety and Health Act of 1970 enforces workplace standards that ensure employees are protected from hazards that compromise their safety and health.
Are first responders entitled to workers compensation coverage for medical treatment and lost wages if they are exposed, become symptomatic, or need to be quarantined due to COVID-19?
- First responders employed by the State of Florida. First responders and other public servants on the frontline who are employed by the State of Florida and who contract COVID-19 due to work-related exposure are now entitled to workers compensation coverage pursuant to Florida Department of Financial Services, Chief Financial Officer Directive 2020-05. The following employees of the State of Florida are covered: law enforcement officers, firefighters, emergency medical technicians, paramedics, corrections officers, employees working in the healthcare field whose duties require contact with persons as they are being tested for COVID-19 or otherwise known to be infected with COVID-19, child safety investigators, and members of the Florida National Guard. State of Florida employees who have tested positive for COVID-19 are entitled to have their claims processed, unless the employer, the State of Florida, can show, by preponderance of the evidence, that the employee contracted COVID-19 outside the scope of his or her employment. UPDATED 4/23/2020
- First responders employed by local government. First responders employed by counties and cities whose employers contract with the Florida League of Cities for their Worker’s Compensation Coverage may also receive worker’s compensation benefits if they contract COVID-19 as the League of Cities made the voluntarily decision to extend coverage to include COVID-19. UPDATED 4/23/2020
- Still, each time an employee is exposed to a high-risk patient or individual in the course of duties, the employee should (1) timely file a Notice of Injury Report documenting that exposure with the employer and (2) retain a copy of the Notice of Injury form for the employee’s records. By doing so, the employee will have documented details of their work-related exposures and protected their right to claim workers compensation.
EMERGENCY PAID SICK & FMLA LEAVE (FFCRA)
What is the effective date of the Families First Coronavirus Response Act (FFCRA), and what is its purpose?
- The law is effective on April 1, 2020 and applies to leave taken between April 1 and December 31, 2020. FFCRA is intended to help combat the workplace effects of COVID-19 by providing time-limited paid leave relief and protections to employees who are unable to work due to specified COVID-19 reasons. Employers are reimbursed with tax credits by the government for the costs of providing paid leave under the FFCRA. UPDATED 4/17/2020
Does the FFCRA apply to first responders?
- The law generally applies to employers with less than 500 employees. There are two notable exceptions:
- Employers with less than 50 employees may qualify for exemption only from the requirement to provide paid leave due to school closings or childcare unavailability if the leave requirements would jeopardize the viability of the business as a going concern.
- Health care providers and emergency responders may be excluded by the Department of Labor (DOL) or the employer. For purposes of whether they may be excluded, the DOL has adopted a broad definition of “health care provider” to mean anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, Employer, or entity and to include any individual employed by an entity that contracts with these institutions where the individual’s services support the operation of the facility. The term “emergency responder” is also broadly defined to include police, fire/rescue employees, emergency medical services personnel, physicians, nurses, public health personnel and other support personnel needed in a declared emergency. UPDATED 4/17/2020
- We hope public employers of all sizes will recognize first responders’ high-risk on-duty exposure to COVID-19 and will provide paid leave benefits to first responders that are equal to or better than those provided under the Families First Coronavirus Response Act. It is unfair and punitive to provide first responders lesser benefits, to require first responders use sick and vacation leave to cover their 14-day quarantine periods which are imposed to protect coworkers and members of the public who have not been exposed. This is especially true when the quarantine is caused by high-risk exposure on duty.
What are the paid leave requirements under the FFCRA?
- Emergency Paid Sick Leave Act (EPSLA). All employees, regardless of length of employment, are entitled to up to 2 weeks (80 hours or 10 days) of paid sick leave (PSL). Part-time employees are entitled to the number of hours of paid sick leave equal to the number of hours they work, on average, over a two-week period in the six months prior to the leave.
- PSL is available to employees who cannot work or telework because they:
- Quarantine/Isolation Order. Are subject to government quarantine or isolation order related to COVID-19.
- Self-Quarantine. Have been advised by healthcare providers to self-quarantine due to COVID-19.
- COVID-19 Symptoms. Are experiencing symptoms of COVID-19 and seeking a medical diagnosis.
- Care for Others. Are caring for an individual subject to a quarantine order or self-quarantine as described above.
- School/Childcare Closure. Are caring for children whose school/place of care is closed or caregiver is unavailable because of a public health emergency declared by a federal, state, or local authority.
- Similar Conditions. Are experiencing a substantially similar condition, as specified by the Secretary of Health and Human Services (catch-all).
- Employees who are absent for reasons 1-3, must be paid at the higher rate of (i) their regular rate of pay or (ii) the federal minimum wage or (iii) the local minimum wage. Payments are capped at $511 per day and $5,110 total.
- Employees who are absent for reasons 4-6, are compensated at two-thirds of their regular rate, capped at $200 per day and $2,000 total.
- Emergency Family and Medical Leave Expansion Act (e-FMLA or EFMLEA). Employees who have been working for at least 30 days, are entitled to up to 12 weeks (the first two weeks/10 days of which are unpaid) of job-protected leave to care for their children whose school/place of care is closed or caregiver is unavailable because of a public health emergency declared by a federal, state, or local authority. This is the only reason this form of leave (e-FMLA leave) is available. Employees are paid at two-thirds of their regular rate up to $200 per day and $10,000 total.
May employees take both types of leave—how do they work together?
- Employees may be eligible for both types of leave which may work together to provide a total of 14 weeks of job-protected leave (a total of 12 weeks may be paid). For instance, an employee may take two weeks of paid sick leave to self-quarantine under medical advice and then 12 weeks of leave for childcare, 10 of which must be paid.
- Moreover, employees who are unable to work in order to care for a child whose school is closed may take both paid sick leave (PSL) and e-FMLA leave concurrently, in which case PSL covers the first two weeks (10 days) of unpaid leave under e-FMLA leave. If an employee has exhausted PSL, the employee may substitute any earned or accrued paid leave under the employer’s preexisting policies for these two weeks of unpaid leave. UPDATED 4/17/2020
What if employees have paid leave under the employer’s existing policies which they can use for COVID-19 reasons?
- Paid sick leave under the EPSLA is in addition to whatever sick leave is already offered by employers, and employees cannot be required to first use any other accrued paid leave. In the case of e-FMLA, after the first two weeks, employers may require employees to concurrently take paid leave available (such as personal leave or paid time off) under the employer’s existing policies.
- The law authorizes employers to change their own internal paid leave policies to the extent consistent with the law. UPDATED 4/17/2020 Consistent with the law would include compliance with public sector labor laws and the collective bargaining agreement.
May employees use paid sick leave or e-FMLA leave intermittently with work at the worksite?
- It depends. By agreement, employers may permit employees to take PSL or e-FMLA leave intermittently if the leave is to take care of their child whose school or place of care is closed, or whose childcare provider is unavailable, because of COVID-19 related reasons. PSL must be taken in full day increments and cannot be taken intermittently while the employee is working at the worksite if the leave is taken for COVID-19 reasons related to the employee’s personal health or the care of qualifying individuals who are under quarantine. UPDATED 4/17/2020
May employees take paid sick leave or e-FMLA leave intermittently while teleworking?
- Yes, but only if the employer agrees. Intermittent leave (reduced schedule leave) may be taken in any agreed-upon increment. UPDATED 4/17/2020
Are employees entitled to paid sick leave if they cannot work due to a shelter-in-place or stay-at-home order?
- Yes, if the employer has work that the employee could perform. A government quarantine or isolation order includes “shelter-in-place or stay-at-home orders” issued by a federal, state, or local government authority that cause an employee to be unable to work (or to telework) even though the employer has work that the employee could perform but for the order. This includes when a government authority has advised categories of citizens (e.g., of certain age ranges or of certain medical conditions) to shelter-in-place, stay-at-home, isolate, or quarantine, causing those categories of employees to be unable to work even though their employers have work for them. However, the employee is not eligible if the employer does not have work for the employee as a result of a shelter-in-place or a stay-at home order. UPDATED 4/17/2020
What qualifies as a “substantially similar condition” entitling employees to paid sick leave?
- The U.S. Department of Health and Human Services (HHS) has not yet identified what qualifies as a “substantially similar condition” that would allow an employee to take paid sick leave. UPDATED 4/17/2020
Is an employee who has used some or all of leave under the FMLA still eligible for e-FMLA?
- Employees may take a total of 12 workweeks for FMLA or expanded family and medical leave reasons during a 12-month period. Therefore, for employers who were covered by the FMLA prior to April 1, 2020, if an employee has already taken some FMLA leave, the amount of leave available under e-FMLA is reduced, and an employee who has exhausted FMLA leave is not eligible for more. Employees with COVID-19 qualifying reasons are eligible for paid sick leave under the EPSLA regardless of how much leave they have taken under the FMLA. UPDATED 4/17/2020
Who qualifies as a “son or daughter” for purposes of qualifying for paid leave to provide care to a child due to school closure or unavailability of a caregiver?
- Under the FFCRA, a “son or daughter” is the employee’s own child which includes biological, adopted, or foster child, stepchild, a legal ward, or a child for whom the employee is standing in loco parentis—someone with day-to-day responsibilities to care for or finally support a child. DOR has issued a guidance that an adult child who is 18 or older and has a physical or mental disability that requires care that isn’t available because of COVID-19 shutdowns is included. UPDATED 4/17/2020
Are employees entitled to paid leave to care for any individual who is subject to a quarantine/isolation order or have been advised to self-quarantine?
- No. The individual must be a family member, someone residing in the same household, or someone whom the employee would be expected to care for based on personal relationship with the employee. And, there must be a genuine need for the employee to care for the individual. UPDATED 4/17/2020
What information must the employer collect from employees who request leave under the FFCRA for purpose of federal reimbursement?
- Regardless of whether leave is granted or denied, employers must document:
- the name of the employee requesting leave;
- the date(s) for which leave is requested;
- the reason for leave (including as applicable the name of the government entity issuing the quarantine or isolation order; the name of the health care provider advising self-quarantine; the name of the individual the employee is caring for and relation to the employee); and
- the employee’s statement that he or she is unable to work or telework due to the reason.
- If an employee is requesting leave to care for a child whose school is closed or childcare provider is unavailable, employers must document:
- the name of the child being cared for;
- the name of the school or childcare provider that has closed or become unavailable; and
- a statement from the employee that no other suitable person is available to care for the child.
- Further, if the child is older than 14, the IRS has issued a guidance that the employee must include a statement that special circumstances exist requiring the employee to provide care to the child during daylight hours. The IRS has not defined or given examples of special circumstances which might permit an employee to care for a child age 15 to 17. Documentation is important for employers who intend to claim a tax credit under the FFCRA. Employers should retain all documentation and information provided by employees seeking leave under FFCRA for four years. UPDATED 4/17/2020
Can employers deny leave to employees who do not provide information sufficient to support that leave is for COVID-19 qualifying reason?
- Yes, employers do not have to provide leave to employees who do not supply information sufficient to support the applicable tax credit under FFCRA. UPDATED 4/17/2020
How are employers reimbursed for payments made under the FFCRA?
- The costs of providing for the leave are initially paid by the employer who will be fully reimbursed, dollar-for-dollar including for any health insurance and payroll taxes paid by the employer (or self-employed individual), through payroll tax credits.
- Examples from IRS, Department of Treasury, and Department of Labor
- Example 1: An eligible employer paid $5,000 in sick leave and is otherwise required to deposit $8,000 in payroll taxes, including taxes withheld from all its employees, the employer could use up to $5,000 of taxes it was going to deposit for making qualified leave payments. The employer would only be required under the law to deposit the remaining $3,000 on its next regular deposit date.
- Example 2: If an eligible employer paid $10,000 in sick leave and was required to deposit $8,000 in taxes, the employer could use the entire $8,000 of taxes in order to make qualified leave payments and file a request for an accelerated credit for the remaining $2,000.
What are the penalties for employers who fail comply with EPSLA?
- Employers who fail to provide paid sick leave are considered to have failed to pay minimum wages in violation of the Fair Labor Standards Act (FLSA) and are subject to enforcement proceedings under the FLSA. Employees have the right to bring a private action against employers in federal or state court. UPDATED 4/17/2020
What are the penalties for employers who fail to comply with e-FMLA?
- The same enforcement provisions of the FMLA apply for violations of the e-FMLA. However, a private action is available only against employers who are subject to the FMLA (i.e., has had 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year, within 75 miles of the worksite of the employee who requests the leave). UPDATED 4/17/2020
AMERICANS WITH DISABILITIES ACT (ADA)
During the COVID-19 pandemic, may an employer covered by the ADA send employees home for displaying influenza-like symptoms?
- Yes. An employer may send home an employee with COVID-19 or symptoms associated with it.
During the COVID-19 pandemic, how much information may an ADA-covered employer request from employees who report ill at work or who call in sick?
- Employers may ask such employees questions about their symptoms to determine if they have or may have COVID-19. Currently, these symptoms include, for example, fever, chills, cough, shortness of breath, or sore throat.
During the COVID-19 pandemic, may an ADA-covered employer take its employees’ temperatures to determine whether they have a fever?
- Yes. Because the CDC and other health authorities have acknowledged community spread of COVID-19 and issued attendant precautions as of March 2020, employers may measure employees’ body temperature. As with all medical information, the fact an employee had a fever or other symptoms would be subject to ADA confidentiality requirements.
During the COVID-19 pandemic, may an ADA-covered employer ask employees if they are living with or have been exposed to anyone who has been diagnosed with COVID-19? If so and if the answer is yes, may the employer require the employee to stay away from work for 14 days?
- Yes, an employer may ask employees questions about exposure to COVID-19, specifically about exposure to persons with COVID-19 and travel and may require them to stay away from work for 14 days. If they are subject to an isolation order, have been advised by healthcare provider to self-quarantine, or are suffering symptoms and seeking a diagnosis, they will be entitled to Emergency Paid Sick Leave. Otherwise, whether the employee will be paid depends on the employer’s paid leave policy and whether work can be performed at home and the nature of job classification, exempt or nonexempt. UPDATED 4/17/2020
During the COVID-19 pandemic, when an employee returns from travel, may an employer ask questions about exposure to COVID-19 during the trip?
- Employers may follow the advice of the CDC and state/local public health authorities regarding information needed to permit an employee’s return to the workplace after visiting a specified location, whether for business or personal reasons.
During the COVID-19 pandemic, may the employer ask employees who do not have influenza symptoms to disclose whether they have a medical condition that the CDC says could make them especially vulnerable to complications?
During the COVID-19 pandemic, if an employee voluntarily discloses that that they have a specific medical condition or disability that puts them at increased risk of influenza complications, what should the employer do?
- The employer must keep this information confidential. The employer may ask the employee to describe the type of assistance that the employee thinks is needed (e.g. telework or leave). Employers should not assume that all disabilities increase the risk of influenza complications as many do not (e.g. vision or mobility disabilities). Employers may have sufficient objective information from public-health advisories to reasonably conclude that employees will face a direct threat if they contract pandemic influenza. Only in this circumstance may ADA-covered employers make disability-related inquiries or require medical examinations of asymptomatic employees to identify those at higher risk of influenza complications.
During and after the COVID-19 pandemic, may an ADA-covered employer require employees who have been away from the workplace to provide a doctor’s note certifying fitness to return?
- Yes. Such inquiries are permitted under the ADA either because they would not be disability related or they would be justified under the ADA standards for disability-related inquiries of employees. As a practical matter, however, doctors and other health care practitioners may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an email to certify that an individual does not have COVID-19.
During the COVID-19 pandemic, may employers screen applicants for COVID-19?
- Yes. An employer may screen applicants for symptoms of COVID-19 after making a conditional job offer, if it does so for all employees in the same type of job. The ADA rule allowing post-offer but not pre-offer medical inquiries and exams applies to all applicants, regardless of whether the applicant has a disability.
During the COVID-19 pandemic, may an employer withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or symptoms of it?
- Yes. Based on current CDC guidelines, this individual cannot safely enter the workplace, and therefore the employer may withdraw the job offer.
When can first responders be ordered to quarantine away from work?
- The employer may order a first responder to quarantine away from work for 14 days as a reasonable measure to protect co-workers and the public from potential exposure when the employee:
- has a known on-duty exposure to a high-risk patient or other person.
- has a known off-duty exposure to a high-risk person.
- develops symptoms associated with COVID-19 such as cough, fever, fatigue, and/or respiratory problems.
- tests positive for COVID-19.
- returns from out-of-state or out-of-country travel.
If the employer orders a first responder to quarantine away from work, will the employee be paid?
- Yes, if the first responder is covered under the Families First Coronavirus Response Act as discussed above.
- Employees may also have an argument for coverage under the collective bargaining agreement which should be carefully reviewed. If the issue is not addressed in the agreement, then the union should be proactive and schedule time to meet with department management to address these situations and reach agreement before issues arise in the workplace.
- In many departments, we have learned that the employer is providing paid administrative leave to employees without requiring the employee to use accrued paid time off in cases not involving travel. This approach seems to make sense in these situations as the quarantine has not been brought on by a voluntary decision of the employee.
- Where the employee must quarantine due to travel, approaches before implementation of the Families First Coronavirus Response Act were mixed. Some employers recognized it was unfair to require the employee to use accrued paid leave to quarantine if the employee purchased the tickets which could not be refunded or began traveling before the post-travel quarantine policy was imposed. Many employers required the employee to use their accrued leave where the post-travel quarantine policy was adopted and then the employee made travel arrangements or had sufficient time to cancel, postpone or receive a refund on their travel arrangements but did not do so.
Where should first responders quarantine?
- First responders who quarantine at home protect their coworkers and the public, but unnecessarily expose COVID-19 to their families and roommates. With schools closed and a pandemic situation, quarantining first responders who quarantine at home will most certainly expose their children and often older relatives who are living or sheltering under the same roof.
- The more proactive employers are securing alternate locations where employees can be housed away from both coworkers and family during their 14-day quarantine. At least one fire department has decided to house its quarantined first responders at an unused fire station.
- Where to quarantine is another issue that will be best dealt with through discussions with management before a bargaining unit member faces a mandatory quarantine order.
EFFECT OF EMERGENCY DECLARATION ON CONTRACT
Does the collective bargaining agreement’s emergency declaration clause apply, and if so, what does that mean?
- Most collective bargaining agreements contain a clause that gives the employer authority to suspend certain portions of the agreement if emergency declarations have been made at the local, state or federal level. This clause is often found the management rights article. Review your agreement carefully to see if yours contains such a clause, and if so, what rights the employer may have in this situation. The clause often contains requirements that the employer must met before the agreement may be suspended in whole or in part; determine if these pre-requirements been met.
- Florida public sector labor relations law also recognizes that an employer may implement a unilateral change when exigent circumstances require immediate action. As the employer has more control during declared emergencies and exigent circumstances, you should be proactive and ask to meet with management as early as possible to reach agreement on how issues will be handled for the declared emergency.
- If the employer notifies the union of its intent to exercise its rights under the emergency declarations clause, ask the employer to identify which articles, sections or subsections the employer wants to suspend and to provide a reason for each. Then, work with management to find a way to have the members’ interests addressed in the way each section is to be applied during the suspension.
If the union disagrees with the employer’s action, what should the union do?
- The union should preserve its rights and objections, where appropriate, by timely filing a grievance. The union may want to stay or abate a pending grievance during the declared emergency until a future date or until one party notifies the other party that they are ready to continue the grievance process.