Updated March 31.2020
Common Questions about time off during the crisis:
Can an employer force an employee to use vacation time during the pandemic?
The short answer is probably yes. Federal law does not require that an employer provide paid vacation leave and therefore, it also does not regulate the terms or conditions of these benefits if offered. So, an employer is typically free to dictate when and how these benefits must be used.
Congress is passing laws to help workers during this crisis (see below). The Families First Coronavirus Response Act (see below) provides for paid sick leave for certain employees. This act prevents employers from requiring employees use other paid leave before utilizing paid sick leave under this act.
However, if the employee does not meet the requirements to take sick leave under this Act and is merely not working due to a closure or slowdown of the business, there is currently no law stating employers cannot require the employee use accrued paid time off during this period.
Can an employer force you to use vacation time before going on short term disability due to coronavirus?
Generally, if an employer offers paid time off, the employer is free to dictate the terms and conditions under which these benefits must be used. However, Congress has passed new legislation, the Families First Coronavirus Response Act (see below), to assist coworkers during this period which includes paid sick leave for certain employees. This act prevents employers from requiring employees use other paid leave before utilizing paid sick leave under this act.
Can a company force you to take vacation time if you’re still working during this Coronavirus?
Can an employee force Leave Without Pay due to COVID 19?
Unfortunately, yes. Currently there is no law requiring that employer pay employees if they are not working due to COVID-19. Congress has passed some relief measures which will provide one-time payments to individuals and children – see Senate Coronavirus Stimulus Bill below. They have also passed paid sick leave for certain employees who are ill or self-quarantining due to the virus or taking care of children because school or the place of care is closed. Any employee who has been put on unpaid leave should consider filing a claim for unemployment benefits with their state department of labor / workforce commission.
If my hours were reduced because of Covid 19, would I still get paid for the days I don’t work?
Hourly, non-exempt, employees do not have to be paid for any hours not worked. For salaried exempt employees, the time may be unpaid only if the employee performs no work during the entire workweek. Any worker who has had their hours substantially reduced should consider filing a claim for unemployment benefits with their state department of labor / workforce commission.
Independent Contractors During COVID 19.
Independent contractors will be able to access some of the COVID-19 relief passed by Congress, including increased access to Medicaid and COVID-19 testing, paid leave tax credits, pandemic unemployment insurance, the paycheck protection program and cash and nutrition assistance.
It is important to note that many workers have been misclassified as independent contractors by their employers, when they are really employees, and should be eligible for the same supports and benefits as other employees. Learn how to tell if you are an independent contractor or an employee.
DOL News Release: Coronavirus-related Paid Leave for Workers
The Department of Labor issued a news release providing guidance to employers on payroll tax credits that will reimburse them for the cost of providing Coronovirus-related leave to employees. See the information below on the Families First Coronavirus Response Act for details on this paid leave.
Legislative Update: Senate Coronavirus Stimulus Bill
The Senate passed a $2 trillion coronavirus stimulus bill on 3/25/20. The bill must be passed by the House and signed by the President before it will take effect.
Some of the major provisions of the bill include:
- One-time direct payments of up to $1,200 for individuals and $2,400 for couples, plus $500 added for every child. Payments will be based on 2019 tax returns for those who filed them and 2018 information if they have not. Payments start to phase out above $75,000 in income for individuals and $150,000 for couples, with no benefits for individuals at or above the $99,000 or couples at or above $198,000. See this page from the Washington Post for estimates on how much your payment may be: https://tinyurl.com/sblyfxz.
- Increasing unemployment insurance by $600 per week for up to four months on top of what normal state benefits. Also expands eligibility to self-employed people and independent contractors.
- Requiring group health plans and insurance providers to cover preventive services related to coronavirus without cost sharing.
- Suspending federal student loan payments through Sept. 30 with no accrual of interest on those loans.
- Tax credits for retaining employees, worth up to 50% of wages paid during the crisis, for businesses forced to suspend operations or that have seen gross receipts fall by 50% from the previous year.
- Delay of payroll tax for employers, requiring half of the deferred tax to be paid by the end of 2021 and the other half by the end of 2022.
- $350 billion in loans for small businesses to cover salary, wages and benefits, worth 250% of an employer’s monthly payroll, with a maximum loan of $10 million.
- A $500 billion pool for loans, loan guarantees or investments to or in businesses, states, and municipalities damaged by the crisis.
- $117 billion for hospitals and veterans’ health care.
Legislative Update: Families First Coronavirus Response Act
Effective April 2, 2020 through December 31, 2020, the Families First Coronavirus Response Act introduces expanded family and medical leave and paid sick leave to address the effects of the COVID-19 outbreak.
Expansion of the Family Medical Leave Act (FMLA):
The Emergency FMLA applies to employers with fewer than 500 employees. The traditional FMLA only applies to employers with 50 or more employees.
To be eligible, employees must have been with the company for 30 days prior to the designated leave. This significantly shortens the FMLA eligibility requirement of 12 months of employment before qualifying for leave. Note, the Secretary of Labor has the authority to exempt certain health care providers and emergency responders, and small businesses with fewer than 50 employees if the Act would jeopardize a business’s viability.
Up to 12 weeks of job-protected leave is available to employees who cannot work or telework to allow them to care for a child if the child’s school or place of care is closed due to a public health emergency.
Note, the first 10 days of this leave may be unpaid. During this 10-day period, the employee can elect to substitute accrued paid leave. After the 10-day period, the employer must pay full-time employee’s 2/3rds of the employee’s regular rate for their normally scheduled hours. This paid leave is capped at $200 per day or $10,000 total per employee. Part-time employees would be paid based on the average number of hours they’ve worked for the 6 months prior to taking the leave or the employee’s reasonable expectation of average hours at hiring.
Employers with 25 or more employees, must reinstate an employee returning from expanded FMLA to the same or equivalent position. Employers with fewer than 25 employees must reinstate the returning employee to their position unless the position no longer exists due to economic conditions or other operational changes caused by the public health emergency. In this case, the employer must try to find an equivalent position for the employer or, for at least a year, try to contact the employee if such a position becomes available.
Emergency Paid Sick Leave:
Employers with fewer than 500 employees must provide full-time employees with 80 hours of paid sick leave at the employee’s regular rate (or 2/3rds their rate to care for certain individuals as listed below in 4, 5, and 6). Part-time employees receive the equivalent of the number of hours they would work, on average, during a two-week period.
Paid sick leave is capped at $511 per day up to a total of $5110 per employee for this own use and $200 per day up to a total of $2000 to care for others.
Employers may not require eligible employees first use other paid leave before using paid sick leave under this Act so, this leave is in addition to any other paid time off provided by the employer.
Currently, there are no provisions that permit employers to obtain certification of a worker’s need or qualification for leave, to verify the reasons for the leave if fraudulent use is suspected, or to discipline employees if fraudulent use is confirmed. This may, however, change as real world application of the new law evolves.
The Act allows eligible employees to take paid sick leave for the following reasons:
The employee is subject to a federal, state or local quarantine or isolation order related to COVID-19;
The employee is advised by a health care provider to self-quarantine due to COVID-19 concerns;
The employee is experiencing COVID-19 symptoms and seeking medical diagnosis;
The employee is caring for an individual subject to a federal, state or local quarantine or isolation order or advised by a health care provider to self-quarantine due to COVID-19 concerns;
The employee is caring for the employee’s child if the child’s school or place of care is closed or the child’s care provider is unavailable due to public health emergency; or
The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
For further guidance on this act, see this information from the Department of Labor.
Note, health care providers may be excluded from receiving paid sick leave and/or expanded family and medical leave by their employers. The Department of Labor’s definition of health care provider is very broad. For the full definition, see FFCRA: Questions and Answers from the DOL.
If an employer imposes time off, they generally are not required to pay nonunionized employees if the time is not covered by an available form of employer-paid time off or a form of state or local paid sick leave.
For nonunionized hourly (nonexempt) employees, all time off work could be unpaid.
For salaried (exempt) personnel, however, under federal wage/hour law, the time may be unpaid only if the employee performs no work during the entire workweek that is treated as unpaid.
Many employers are offering relaxed and/or additional paid leave benefits in response to the current situation. Most common is allowing the use of paid sick time to cover time off work due to restrictions against coming onsite for coronavirus prevention purposes. Paid sick time may also be allowed for other coronavirus-related reasons for absence, such as the need to care for children whose schools are closed — and keep in mind that some states, such as New York, require a minimum amount of paid time off each year that may be used for such a purpose.
The following are excerpts from the recently released Question and Answer page published by the U.S. DOL that may be of interest to employees whose job and/or schedule have been impacted by the Covid 19 pandemic.
If you have been laid off and have not received your last paycheck.
Immediate payment may be required by state law (although it is not required by federal law). If your regular payday has passed without payment, contact the DOL’s www.dol.gov/whd or your state labor office.
How many hours is an employer obligated to pay an hourly-paid employee who works a partial week because the employer’s business closed?
The Fair Labor Standards Act (FLSA) generally applies to hours actually worked. It does not require employers who are unable to provide work to non-exempt employees to pay them for hours the employees would have otherwise worked.
How many hours per day or per week can an employee work?
The Fair Labor Standards Act (FLSA) does not limit the number of hours per day or per week that employees aged 16 years and older can be required to work – but employers must pay non-exempt workers at least the minimum wage for all hours worked, and at least time and one half the regular rate of pay for hours worked in excess of 40 in a workweek.
Can an employee be required to perform work outside of the employee’s job description?
Yes. The Fair Labor Standards Act (FLSA) does not limit the types of work employees age 18 and older may be required to perform. However, there are restrictions on what work employees under the age of 18 can do. This is true whether or not the work asked of the employee is listed in the employee’s job description.
May an employer encourage or require employees to telework (i.e., work from an alternative location such as home) as an infection control strategy?
Yes. An employer may encourage or require employees to telework as an infection-control strategy, based on timely information from public health authorities about pandemic conditions. Telework also may be a reasonable accommodation.
Of course, employers must not single out employees either to telework or to continue reporting to the workplace on a basis prohibited by any of the EEO laws.
Do employers have to pay employees their same hourly rate or salary if they work at home?
If telework is being provided as a reasonable accommodation for a qualified individual with a disability, or if required by a union or employment contract, then you must pay the same hourly rate or salary.
If this is not the case and you do not have a union contract or other employment contracts, under the FLSA employers generally have to pay employees only for the hours they actually work, whether at home or at the employer’s office. However, the FLSA requires employers to pay non-exempt workers at least the minimum wage for all hours worked, and at least time and one half the regular rate of pay for hours worked in excess of 40 in a workweek. Salaried exempt employees generally must receive their full salary in any week in which they perform any work, subject to certain very limited exceptions.
Are businesses and other employers required to cover any additional costs that employees may incur if they work from home (DSL line, computer, additional phone line, increased use of electricity, etc.)?
Employers may not require employees who are covered by the Fair Labor Standards Act (FLSA) to pay or reimburse the employer for such items that are business expenses of the employer if doing so reduces the employee’s earnings below the required minimum wage or overtime compensation.
Employers may not require employees to pay or reimburse the employer for such items if telework is being provided to a qualified individual with a disability as a reasonable accommodation under the Americans with Disabilities Act.