Last week, West Virginia Governor Jim Justice issued Executive Order 9-20 instructing West Virginia residents to stay at home and ordering all West Virginia businesses not deemed essential to close – and today the Families-First Coronavirus Response Act goes into effect requiring most employers to (1) expand emergency paid leave under the Family and Medical Leave Act (“FMLA”) and (2) to provide Emergency Paid Sick Leave (detail below). Many businesses have been raising questions regarding the interplay between the Families-First Coronavirus Response Act and the standing Executive Order to shelter in place.
1. The Families-First Coronavirus Response Act applies even to essential businesses and operations.
Even though certain businesses are deemed essential under Executive Order 9-20 and are continuing to operate, certain provisions of the Families-First Coronavirus Response Act may still be triggered entitling employees of essential businesses to FMLA or additional paid sick leave. Employers must be mindful of, and follow the provisions of, the Act while still carrying out day-to-day essential operations. The interplay between these two responsibilities may require some businesses to juggle needs of their customers and those of their employees.
2. The Families-First Coronavirus Response Act is effective today.
The Families-First Coronavirus Response Act requires most employers to (1) expand emergency paid leave under FMLA and (2) to provide Emergency Paid Sick Leave. The provisions of the Act are now in effect and must be adhered to by employers (effective April 1, 2020 and expiring on December 31, 2020).
The Act expands provisions of the FMLA in order to provide employees whose child’s school or place of care has closed due to the COVID 19 health crisis with an additional source of paid leave for up to 12 weeks.
In addition to expanding FLMA, the Act also sets forth provisions for up to 80 hours of additional paid sick leave under different pay scales in the following situations:
1) The employee is subject to a federal, state, or local quarantine or isolation due to COVID-19;
2) A health care provider advised the employee to self-quarantine due to concerns related to COVID-19;
3) The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
4) The employee is caring for an individual who is either subject to a federal, state, or local quarantine or isolation due to COVID-19 or has been advised to self-quarantine due to concerns related to COVID-19;
5) The employee is caring for the employee’s child(ren) whose school has been closed or place of care is unavailable due to the COVID-19 health crisis; or
6) The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretaries of Treasury and Labor, as clarified by the Secretary of Health and Human Services at a later date.
3. Balancing essential business operations and the implementation of the Families-First Coronavirus Response Act.
If you are an essential business under Executive Order 9-20 and are continuing to operate, consider some of the following strategies to meet the needs of both your customers and your employees as you balance the roll out of the Families-First Coronavirus Response Act and seek to continue operations:
- Implementing flexible work schedules;
- Allowing indispensable employees to telework from home, if possible;
- Allowing full-time employees to work part-time, if needed;
- Relaxing dress codes for in-person employees (for example, where face-to-face contact with customers has been suspended); and
- Permitting work spaces to be rearranged to allow in-person employees to reduce contact and practice social distancing and feel more comfortable performing their tasks.
These strategies, and others can help you continue to engage with customers while responding to employee concerns in a timely manner.
Feel free to reach out to Lewis Glasser if you have questions or need assistance as you continue business operations during the COVID 19 health crisis or are in need of assistance in understanding and implementing the provisions of the Families-First Coronavirus Response Act, effective today.
Webster J. Arceneaux, III
Lewis Glasser PLLC
(O) 304.345.2000 (ext. 1006) / (D) 304.414-9006
Lori D. Counts-Smith
Lewis Glasser PLLC
(O) 304.345.2000 (ext. 1017) / (C) 304.542-1941
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