Littler Ask the Experts

September 10, 2020

Through a partnership with Littler Mendelson P.C Labor & Employment Law Solutions, we are excited to share the “Ask the Experts” Article. Each week, we will feature a new question from our members related to workplace issues and topics, to be answered by our experts and partners at Littler.

What are the legalities and requirements of paying employees who have been exposed to COVID at work and then test positive? Are Agencies required to pay them while in quarantine?

Answer by Emilie Hammerstein, Shareholder

MLA leave is generally unpaid, but employers may be subject to other paid leave obligations.  Private employers with fewer than 500 employees are covered under the federal Families First Coronavirus Response Act (in effect through December 31, 2020), which includes the Emergency Paid Sick Leave Act (“EPSLA”). The EPSLA provides up to 80 hours of paid sick leave for employees who cannot work or telework for certain COVID-related reasons, including that the employee is subject to a federal, state or local quarantine or isolation order; the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or the employee is experiencing symptoms of COVID-19 and seeking medical diagnosis. If an employee cannot work due to any of these reasons, the employee qualifies for leave paid at 100% of their regular rate, up to a cap of $511 per day or $5,110 in the aggregate. EPSLA leave must be provided in addition to paid leave benefits that an employee already has accrued under an employer’s policy. Although the FFCRA contains a provision that allows employers of “health care providers” (defined broadly by the Department of Labor) to exempt such employees from paid leave entitlements, a recent New York federal court decision creates uncertainty as to whether the “health care provider” exemption can extend to home care agency caregivers. However, we may soon see revised FFCRA regulations from the DOL that will hopefully clarify the scope of the exemption.

Even if an employer is not covered under the federal FFCRA, agencies must be mindful of any paid leave obligations imposed under state or local law. For example, some jurisdictions have enacted public health emergency leave laws that provide emergency paid sick leave for the same or similar reasons as the EPSLA.  Additionally, some states and localities have mandatory paid sick and safe time (PSST) laws that require employers to provide a certain amount of paid leave for employees to use for their own illness, as well as for other purposes). Agencies that have questions regarding the applicability of mandatory paid leave obligations should consult with qualified counsel

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