Back to School Powerpoint(11646448.1) - Steptoe & Johnson · Thus, the authors and Steptoe & Johnson PLLC cannot be bound either philosophically or as representatives of their various

Back to School – Rights and Responsibilities of Employers and Employees for Fall 2020

Nelva Smith Columbus, OH

Bryan CokeleyCharleston, WV

August 18, 2020

Emergency Paid Sick Leave Act (EPSLA)“Paid Sick Leave”

• Effective: April 2, 2020• Sunset provision: December 31, 2020 (currently)• Up to 80 hours of leave

1. Gov’t quarantine or isolation order covering employee

2. Healthcare provider advises employee to self-quarantine

3. Employee experiencing symptoms and seeking medical diagnosis

Benefits• Full pay, but caps

– $511 per day– $5110 aggregate

EPSLA (con.)4. Caring for an individual under quarantine or isolation per order or

medical advice5. Caring for son or daughter

• School or place of care closed,Or

• Childcare provider unavailable for reasons related to COVID-19

6. Substantially similar conditionBenefits• Caps

‒ $200 per day‒ $2000 aggregate

• Cannot require use of other leave

Emergency Family and Medical Leave (EFMLEA)“Emergency FMLA”• Effective: April 2, 2020

• Sunset provision: December 31, 2020 (currently)• Caring for son or daughter

• School or place of care closedOr

• Childcare provider unavailable for reasons related to COVID-19

• 12 weeks• 2 weeks unpaid• 10 weeks paid• Can run other leave concurrent

• 2/3 rds Pay• Caps

• $200 per day• $10,000 aggregate

•Employer coverage< 500 employees(private employers)

•Employee eligibility• EPSLA (immediate)• EFMLEA (30 days)

Family First Coronavirus Response Act (FFCRA)

Exclusions• “Small employer”

• < 50 employees⁻ Threatens viability of business⁻ Key employee⁻ Insufficient # of employees⁻ Document reasons

• “Healthcare providers”• but …

School Closure• Physically shutdown• Virtual = closed• Hybrid

– Open• No Leave

– Virtual• Leave

• Parental choice– Not a qualifying event– Not eligible for leave

The “Fearful Parent”

• Not a qualifying event– If school or childcare open

• Employer (all employers) may offer:– Vacation, PTO, sick leave– Borrow from future– Unpaid leave (or furlough)– No tax credits

Telework

• At employer’s option– Able to perform the work– Feasible

• Employer and employee may modify work schedule by agreement

• Expense of equipment

“No other suitable person”

• Spouse?• Grandparents?• Relative?• Documentation

– Name of son or daughter– Name of school, place of care, childcare provider– Representation that “No other suitable person will be

caring for child”

Intermittent Leave

• Hybrid ≠ intermittent leave• Per regulation

– Employer & employee must agree– But …

State of New York v. Department of Labor(August 3, 2020)

• Employer may not veto intermittent leave• “Availability of work” struck down• Second (DOL’s) definition of “healthcare provider”

struck down• No documentation needed prior to leave starting• Geographical Scope: ? ? ? ?

Other Considerations

• State and local laws• Collective bargaining agreements• Other laws

– FMLA– ADA– Discrimination

• Gender

These materials are public information and have been prepared solely for educational purposes. These materials reflect only the personal views of the authors and are not individualized legal advice. It is understood that each case is fact-specific, and that the appropriate solution in any case will vary. Therefore, these materials may or may not be relevant to any particular situation. Thus, the authors and Steptoe & Johnson PLLC cannot be bound either philosophically or as representatives of their various present and future clients to the comments expressed in these materials. The presentation of these materials does not establish any form of attorney-client relationship with the authors or Steptoe & Johnson PLLC. While every attempt was made to ensure that these materials are accurate, errors or omissions may be contained therein, for which any liability is disclaimed.

Back to School – Rights and Responsibilities of Employers and Employees for Fall 2020

Nelva Smith 614-456-1656

Bryan Cokeley304-353-8116