USA: Managing Leave for Employees Affected by COVID-19

During the COVID-19 pandemic employers have been faced with difficult decisions regarding their workforce. Businesses across the globe have been grappling with furloughs, layoffs, redundancies, workshare programs and other cost-saving strategies, to ensure the long-term health of their organisation. Now however, as businesses gear up to reopen, an organisation may find itself in a different dilemma – how to respond to employees affected by COVID-19 who cannot return to the worksite.

Below are various scenarios that would require an employer to provide or consider providing leave for an employee:

• The government has advised that the employee stay home because they fall under a vulnerable population category.
• The employee is caring for an elderly parent or lives with someone who falls under a vulnerable population category.
• The employee’s child’s day care (or school) is closed and he/she needs to take care of the child or help with schoolwork.
• The employee has been exposed to COVID-19.
• The employee’s spouse has COVID-19.
• The employee is experiencing COVID-19 symptoms and seeking medical confirmation.
• The employee has COVID-19.

While each jurisdiction will have its own appropriate course of action, the potential dilemmas are universal, and it is important for an organisation to anticipate and prepare for how to respond to these scenarios if and when they arise.

In the United States, employers covered by the Family First Corona Response Act (FFCRA) must provide up to 80 hours of emergency paid sick leave for many of the examples mentioned above. The FFCRA also prohibits employees from being discharged, disciplined or discriminated against for taking (or seeking to take) emergency paid sick leave, filing a complaint or instituting a proceeding to enforce the FFCRA or testifying in such a proceeding.

In France, if confinement is required (and teleworking is impossible due to the nature of the job), or it is necessary take care of a child under 16 affected by a school closure, an employee may be placed on sick leave and compensated.

In Canada, as a result of Bill C-13, the Labour Code now contains a new leave of absence for absences related to COVID-19 that corresponds with CERB (Canada Emergency Response Benefit). Every federally-regulated employee in Canada is now entitled to and shall be granted “Leave Related to COVID-19” of up to 16 weeks if the employee is unable or unavailable to work for reasons related to COVID-19.

Organisations confronted with these unprecedented leave scenarios should consider the following takeaways:

• Update company policies to address requests for COVID-related leave.
• Stay up-to-date on this still evolving area of the law, and make updates to policies when necessary.
• Consider whether an employee is entitled to any form of protected leave or other accommodation under national or local law.
• Ensure HR, legal and any other relevant personnel are trained to handle leave requests, including documentation and providing any required notice.
• Maintain open communication with employees to help ensure the appropriate course of action.
• Consider any privacy and confidentiality implications associated with an employee’s reason for leave.
• Implement safety and health measures in the workplace, to prevent the spread of COVID-19, and in turn the need for any additional leave once an employee is able to return.

Jackson Lewis attorneys are available to assist you with these and other workplace issues. For more information, please contact John Sander (Principal) of Jackson Lewis at john.sander@jacksonlewis.com or visit www.jacksonlewis.com.

For more information please contact Joseph Granato, Communications Manager at L&E Global at joseph.granato@leglobal.org.