Coronavirus And The Reluctant Employee
Coronavirus And The Reluctant Employee

You have a business that is permitted to continue operations and is not subject to a “stay at home” order.  You have informed employees of this fact.  You have even provided employees with a letter setting forth specific information on why they are allowed to continue working and traveling to and from work to show authorities or anyone else who might ask.  Nevertheless, you have one or more employees who do not want to work because of COVID-19 and are asking to stay home.  What do you do?

If you are a business with 500 or fewer employees, you first need to find out why these employees are asking to stay home.  For anyone that has worked for you for at least 30 days, if they are saying they can’t work for any of these six reasons set forth in the Families First Coronavirus Response Act, then they may be eligible for Emergency Paid Sick Leave or Emergency Family and Medical Leave under the FFCRA:

  1. Employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  2. Employee has been advised by a health care provider to self-quarantine related to COVID-19;
  3. Employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
  4. Employee is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
  5. Employee is caring for a child whose school or place of care is closed (or childcare provider is unavailable) for reasons related to COVID-19; or
  6. Employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

Any of these reasons would qualify the employee for two weeks of paid sick leave.  Employees who qualify for any of the above enumerated reasons would be entitled to the number of hours of leave that they work “on average, over a two-week period.” Plus, employees who qualify for reason no. 5 might be eligible for an additional 10-weeks leave, for a total of up to 12-weeks leave, because only reason no. 5 qualifies for expanded FMLA leave.  You should ask for documentation sufficient to support the related tax credit, and in the same manner as any other FMLA type of leave for reason no. 5. 

Of course, employees not eligible for paid leave under the FFCRA can opt to use accrued available paid time off to stay home.  In addition, employees can substitute accrued vacation or other applicable paid sick leave during the paid sick leave available under FFCRA leave in order to receive greater payment amounts.  However, employees may not be forced to use vacation or other paid sick leave time during a FFCRA leave.  Note that FFCRA is not available for employees on “furlough” or layoff who are not working, as the leave payments are based on the regular work schedule which would no longer be in place under such circumstances. 

If you operate a business with more than 500 employees, you must consider whether the employees are subject to city or county required paid leave benefits similar to those required for smaller businesses under the FFCRA.  Officials in Los Angeles, San Jose and San Francisco have already voted to implement this type of ordinance.  In addition, all employers must consider the application of other unpaid leaves that might be available to these employees depending on the circumstances, such as a California Family Rights Act or standard FMLA leave, a pregnancy disability leave or a disability leave. 

If the employee in question is not eligible for any leave of any kind, and has no paid time off, you should explain this to the employee.  You should also explain to the employee all that the business has done to help to prevent the spread of the virus.  Social distancing, deep cleaning, staggered break times, personal protective equipment, washing policies, washing stations and hand sanitizers; employees need to feel that you have done all you can to protect them.  In addition, it may help for the employee to understand just how important their work is—after all, what they are doing is part of the critical infrastructure that state and federal authorities have determined is crucial for our society.

This blog is presented under protest by the law firm of Ervin Cohen & Jessup LLP. It is essentially the random thoughts and opinions of someone who lives in the trenches of the war that often is employment law–he/she may well be a little shell-shocked. So if you are thinking “woohoo, I just landed some free legal advice that will fix all my problems!”, think again. This is commentary, people, a sketchy overview of some current legal issue with a dose of humor, but commentary nonetheless; as if Dennis Miller were a lawyer…and still mildly amusing. No legal advice here; you would have to pay real US currency for that (unless you are my mom, and even then there are limits). But feel free to contact us with your questions and comments—who knows, we might even answer you. And if you want to spread this stuff around, feel free to do so, but please keep it in its present form (‘cause you can’t mess with this kind of poetry). Big news: Copyright 2020. All rights reserved; yep, all of them.

If you have any questions about this article, contact the writers directly, assuming he or she was brave enough to attach their name to it. If you have any questions regarding this blog or your life in general, contact Kelly O. Scott, Esq., commander in chief of this blog and Head Honcho (official legal title) of ECJ’s Employment Law Department.

Tags: COVID-19

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