Navigating State and Federal Employee Leave Rights During the Pandemic

Prior to the pandemic, multistate employers already had to grapple with different, and sometimes conflicting, leave laws. The coronavirus crisis has added another layer of complexity as federal, state and local lawmakers continue to issue COVID-19-specific mandates. To complicate matters more, coronavirus-related workplace laws are evolving.

Employees may be entitled to paid leave under coronavirus-related federal emergency laws, such as the Families First Coronavirus Response Act (FFCRA), which provides workers with up to 80 hours of paid sick leave for certain reasons and an additional 10 weeks of partially paid family leave if employees are unable to work because their child’s school or child care provider is closed or unavailable due to the pandemic.

Under the FFCRA, which covers workplaces with fewer than 500 employees, employers are eligible for tax credits to cover the cost of providing paid leave for specified reasons. The legislation sought to “ensure that workers are not forced to choose between their paychecks and the public health measures needed to combat the virus, while at the same time reimbursing businesses,” the U.S. Department of Labor (DOL) said.

Employees may qualify for additional paid leave under state and local laws. Employees also may be eligible for unpaid leave under the Family and Medical Leave Act (FMLA) and similar state laws.

Furthermore, employers with at least 15 employees are covered by the Americans with Disabilities Act (ADA) and may have to provide leave as an accommodation for those whose medical conditions put them at high risk if they contract COVID-19.

Employers should err on the side of caution and grant leave in close-call situations in order to reduce legal risk.

One approach is to stay abreast of all applicable requirements in the jurisdictions where the company has employees and to tailor policies and practices to comply with applicable requirements at each facility. The other approach, which still requires staying up to speed on new laws and changes to existing laws, is to set a companywide policy that complies with the most-generous applicable leave requirements.

Employers should work with the employee on the type of documentation they may submit to prove the absence was COVID-19 related if the employee is having difficulty providing it.

The FFCRA regulations provide specific guidance about what information an employer should document for tax-credit purposes. For example, employees requesting leave for quarantine should provide the name of the government agency or health care provider that ordered the employee to quarantine or self-isolate. Employees who request leave for child care purposes must provide the name of the school or child care provider that has closed or become unavailable due to the pandemic and a statement that no other suitable person is available to care for their child.

Employers are not required to approve FFCRA leave if the employee doesn’t provide sufficient information to support the tax-credit claim, according to the DOL. Notably, however, the FFCRA does not permit an employer to require verification from a health care provider as a condition of approving covered leave.

To the extent that an employee requests to take leave under a state or local law, Coburn said, the employer needs to be mindful of what the applicable law permits or prohibits an employer to require.

Under the Los Angeles COVID-19 emergency leave law, for example, employers can’t require a doctor’s note or other documentation for an employee’s absence.

Many companies are attempting to strike a balance by requesting but not requiring a doctor’s note, he said, while at the same time requiring employees to certify that they meet current U.S. Centers for Disease Control and Prevention guidelines for returning to work after being sick with COVID-19.