Families First Coronavirus Response Act – The Good, The Bad and The Ugly

Intro: 00:00 Human resources, employee relations, the legal department are aligned against you. Your employer has trained for this day, the day you’ve become an expendable number at work. There are robust laws that may protect you, but unlike the company, you’ve not been drilled on how to wield them. You’re playing catch up. There are pitfalls to avoid and countermeasures to deploy that may save your job or puts you in the best position to negotiate a favorable settlement. Minutes matter. Your words and actions matter even more. The Walking Papers podcast offers the first foray into learning how to turn the tables when you’ve been targeted at work. Knowledge is power. Let’s get started.

Robert Ingalls: 00:46 Welcome to the Walking Papers podcast. I’m your host, Robert Ingalls, and today we’re going to be discussing the Families First Coronavirus Response Act. Now a lot has changed in the world in the three weeks since we last discussed Coronavirus on episode seven. Schools are closed, nonessential businesses are closed, companies are laying off employees, and the economic fallout is impacting everyone. Recently passed by Congress, the FFCRA takes effect today and aims to address these issues and more. I’m here with employment attorney, Josh Van Kampen to discuss the good, the bad, and the ugly of the FFCRA. Welcome, Josh.

Josh Van Kampen: 01:28 Ah, thanks. Thanks for doing this.

Robert Ingalls: 01:31 No, absolutely.

Josh Van Kampen: 01:31 [crosstalk 00:01:34.

Robert Ingalls: 01:33 It’s a little different than we usually are. We’re remote today because there’s been a Mecklenburg County and North Carolina also has a stay-at-home for all nonessential businesses, and I don’t think they’ve deemed podcasting essential businesses as far as I’ve heard.

Josh Van Kampen: 01:49 But law offices are apparently.

Robert Ingalls: 01:51 Law offices.

Josh Van Kampen: 01:53 Yeah, and everybody said we lawyers were useless, so that makes me feel pretty good.

Robert Ingalls: 01:58 Hopefully on the other side, you’ll gain some reputation back. So tell me, why are we calling this the good, the bad, and the ugly?

Josh Van Kampen: 02:05 Well, first of all, I’m sitting on my porch this morning and came up with the title and I’m embarrassed to say that I didn’t know the origin of it. So it turns out the good, the bad, and the ugly is actually one of the most iconic, they call them spaghetti westerns that I never saw, but it’s clearly in our culture and also Clint Eastwood’s in it. And in fact, this was a movie in which Clint Eastwood burst onto the scene and into the genre, and he’s somebody I idolized until he talked to an empty chair.

Josh Van Kampen: 02:43 But I put that behind us and we’re still going to use, his movie title as a clip. So why is it the good, the bad and the ugly? Well, it’s because there’s parts of it that are good, there are parts of it that are bad, and there are some ugly parts, too. And it’s important that our listeners know, what good parts of the law may apply to them. Many of our listeners are going to think that they’re covered by this law and probably not be. So we’re going to have everybody to thoroughly understand what rights they might be protected or be able to enjoy under this law and which ones they’re not. And then where the gaps are that need to be addressed moving forward.

Robert Ingalls: 03:24 Perfect, and now we are recording this on April 1st of 2020. So this is going to be information as we understand it today. So, take us through a little bit about what is going on with the Families First Coronavirus Act.

Josh Van Kampen: 03:39 Sure. Well, it got passed in a hurry and a lot of times when laws are passed in a hasty fashion, there can be some problems with it. And the other thing we know about Washington, D.C. is that there are compromises that are made and there are lobbyists that have their hands and tentacles in the drafting of these statutes and as a result, we’ve got some pretty big loopholes in a law that if you read it just as a headline, you would have been doing back flips over, and had been excited to hear about. But the Families First Coronavirus Response Act is actually a massive statute. But as far as employment laws go, there are two acts within that law that are worth discussing.

Josh Van Kampen: 04:26 So, the first is the Emergency Paid Leave Act or EPLA, is what it’s being called now, and really what we should call that is the two weeks paid leave act. So, before anybody gets real excited about how much paid leave you get under the statute, it’s two weeks, nothing to get overly excited about. And then there are restrictions basically, where that law doesn’t apply to a large segment of the workforce. But we’re going to talk about the Emergency Paid Leave Act.

Josh Van Kampen: 04:57 And then the other act within this larger statute is the Family Leave Expansion Act, and so this is an amendment to a law that probably a lot of listeners are familiar with, which is the Family Medical Leave Act. And for the first time under that statute, there’s actually some paid leave that’s provided to some segments of our population. But there’s also huge loopholes with that law as well. So, we’ll get into both of those together today.

Robert Ingalls: 05:28 Now tell me about what is good about these laws.

Josh Van Kampen: 05:32 Sure. Oh, let’s start first with EPLA. So, first of all, so it’s two weeks paid leave. The rate of pay is not minimum wage. The rate of pay is actually whatever your rate of pay is at your employer, subject to some caps. So it’s a cap of $511 per day for most people that are covered by this law and then two thirds your normal pay rate depending on why you’re taking the leave. So first of all, under what circumstances can you take leave under this law? The first is, so most listeners are going to be subject to basically, a state or local impose stay-at-home ordinance. And if that’s the case and you are unable to work because you are subject to that isolation order, you would be entitled to receive paid leave. And that is regardless of whether or not you have a COVID-19 diagnosis or not, just if you’re not in an essential business and you’re required to be at home, then you’re entitled to this two weeks of pay. So that’s the first category.

Josh Van Kampen: 06:41 The second is if you’ve been advised by your medical professional that you have COVID-19, or may, and you’ve been instructed by your medical professional to self-quarantine and you’re unable to work, then you’re entitled to two weeks paid leave for that. And the other is, let’s say you’re experiencing symptoms, but like a lot of folks, you just haven’t been able to get a doctor’s appointment or a test, then you can be entitled to this two weeks leave because as long as you’re actively seeking medical attention at that point. You can also take leave if you’re caring for someone else who has been diagnosed with COVID-19 or is quarantining pursuant to medical advice. So for example, if your son or daughter or spouse or someone like that needed help and you were taking off work, you could get two weeks paid leave for that.

Josh Van Kampen: 07:32 And then finally, a lot of listeners who are parents have kids who are no longer able to physically report to work and so they’re entitled to take two weeks leave for that as well. Now, remember we talked about, there are some instances where you get full pay for the two weeks and then in other instances you only get two thirds pay? You only get two thirds pay if you’re caring for your child at home because the school is closed. In that instance, it’s only two thirds pay or if you’re caring for another person. But in any of the earlier instances that we talked about, you’re entitled to full pay for those two weeks. So that is the good with the Emergency Paid Leave Act.

Josh Van Kampen: 08:18 And then, switching over to the Family Leave Expansion Act. On that one, the good is that you can be entitled to an additional 10 weeks at two thirds of a pay rate for those folks who are at home caring for a child who’s unable to go to school because the school is closed or the daycare is closed. So remember, we talked about this large segment of people that are protected and entitled to two weeks paid leave, well the only segment that continues beyond two weeks and that is eligible to receive two-thirds pay for the next 10 weeks, are the folks who were parents with kids that aren’t able to report to school.

Josh Van Kampen: 09:02 So we just sliced off essentially with the Family Leave Expansion Act, the sick people, and does that make any sense to you or the listeners that the people that actually have been diagnosed or are in the process of being diagnosed would suddenly not need more than two weeks of paid leave, but that was the compromise that was worked out apparently in Washington, D.C.

Robert Ingalls: 09:31 Now we’ve covered the good of these laws. What are we seeing is the bad now?

Josh Van Kampen: 09:37 Yeah. Well, first of all with the Emergency Paid Leave Act, there’s a huge loophole. So, it only covers employers that have 500 or fewer employees. So, I’ve never seen anything like this before where essentially the largest employers in our country are given a free pass and don’t have to provide this two weeks paid leave. But employers with under 500 employees, are required to provide this two weeks paid leave. So, that doesn’t make much sense to me at all but a little sliver of the good for the Emergency Paid Leave Act though is that, let’s say you were only at your new job for one week, but then you end up being unable to report to work for any of the reasons we talked about, you’re still eligible, even though you had just started that job. So that part is good.

Josh Van Kampen: 10:36 But for the listeners who work for large employers, a lot of you guys are going to have, let’s say you work for Bank of America, for example. You probably already get some paid sick leave. You may not get two weeks, but you probably have some paid sick leave in your benefits bank, but let’s say you already used a week of it and so you’re down to only one week of paid leave left. We all know from just learning about COVID-19, these conditions don’t resolve in two weeks and you can’t even get a test in two weeks.

Josh Van Kampen: 11:11 So, you’re going to have people that have paid leave with their employers that would have already used some and have fewer than two weeks. But what really bothers me are, you probably don’t go to the supermarket anymore but I was going to supermarkets a month ago or three weeks ago, and I would see cashiers 18, 19, 20 years old lining up and working. So, if you work for Harris Teeter and Publix, obviously they have more than 500 employees, you’re probably a part-time worker and aren’t entitled to any paid sick time because you’re part-time. But yet you’re left without any protection in terms of being able to get this two weeks paid leave if you’re a part-time worker for a large employer for example, and you’re not eligible. So that really bothers me. I’m sure it bothers your listeners as well.

Josh Van Kampen: 12:06 And then getting back to the Family Leave Emergency Act, even for the people that are covered, so let’s say you’re out of work, you get the two weeks under the Emergency Paid Leave and now you want to get paid for the additional 10 weeks, well guess what? The same issue applies. Depends on how large or small your employer is. So, if you’re working for a company that has more than 500 employees, you’re not able to take that 10 weeks of additional paid leave because your kid is out of school because you would just work for an employer that has too many employees. It’s too big and that doesn’t make any sense to me, and it’s fundamentally unfair. Whereas, let’s say you have a neighborhood supermarket who’s just a mom and pop shop, they’ve got 300 employees, they’re going to have obligations to provide paid leave, but the Harris Teeters and Publix of the world are not. So that’s just fundamentally unfair.

Robert Ingalls: 13:10 All right, now when it comes to that large group of people that are falling between those cracks, what other options do they have?

Josh Van Kampen: 13:16 Well, and that’s where the ugly comes in. There are two laws on the books that are worth discussing, but like we talked in a previous podcast, Rob, these laws were never passed for a pandemic of this kind in mind. So, one is the Family Medical Leave Act. So, that’s not a bad law by any means, but there are restrictions with it. So, Family Medical Leave Act was passed in 1993 under the Clinton administration, well it is not paid leave. So even if you qualify for Family Medical Leave Act after you’ve had your two weeks of paid leave, if you’re covered by the FMLA, those next 10 weeks would be unpaid. So, that’s a problem. The good side, the employer would be obligated to pay your medical benefits while you’re out for those 10 additional weeks. But it’s unpaid leave and obviously, people are going to need that leave to be paid right now it wouldn’t be.

Josh Van Kampen: 14:16 The other bad part of it is, a lot of your listeners are not going to be covered by the Family Medical Leave Act because of some thresholds that are in place. So one is, it only applies to employers with 50 or more employees. So, right off the bat, if you’re working for a small business, you’re unlikely to be covered by the Family Medical Leave Act, and even if you are working for a company with more than 50 employees, you still may not be covered unless you have worked for that company for a year. So you have to have worked for that company for a solid year and you also would have been obligated to have worked at least 1250 hours within that year. So if you do the math on that, that averages to about 25 hours a week on average. So if you were only working for that company for 15 hours a week, even if you worked there for more than a year, you may not be eligible because you don’t work enough hours in the year. So, once again, there’s a huge segment of the population who are not covered by the Family Medical Leave Act and it’s not paid leave, which is a problem.

Josh Van Kampen: 15:27 Then the other law that’s on the books, that’s a really robust law if you’re covered by it, is the Americans with Disabilities Act, but you have to be quote unquote disabled under that law, and the Americans with Disabilities Act generally doesn’t apply to conditions that are temporary. There’s no law on the books addressing whether or not COVID-19 would qualify as a disability, but in general, like influenza, the flu is generally not covered by the Americans with Disabilities Act. So one thing that Congress could do and should do, like tomorrow is amend the Americans with Disabilities Act to add COVID-19 as a disability.

Josh Van Kampen: 16:12 Why would we want to do that? One is, anybody who’s covered by the ADA is entitled to a reasonable accommodation, and a reasonable accommodation can include medical leave more than two weeks long. And so under the ADA, if let’s say you needed to be out a full month with a COVID-19 diagnosis, if you were covered by the ADA, you would be entitled to take that leave and also be entitled to be restored to your position. And right now, most employers are going to be pretty aggressive in the court system to try to argue that the ADA doesn’t apply to them, for folks that have COVID-19. So we could literally, Congress could act, write two sentences, add it to the Americans with Disabilities Law and we could fill this gap and protect a whole lot more folks.

Robert Ingalls: 17:02 Do you think that’s something that Congress might be willing to do, depending on how long this goes on

Josh Van Kampen: 17:06 Yeah, I mean, gosh it just seems like there’s so many fires to put out, and I’m sure there are just only so much bandwidth to deal with problems. But one of the reasons why we do these podcasts is to raise awareness about where the gaps are in enforcement. So for everybody who’s stuck at home with a lot of time on your hands, you could email or call your Senator or representative and urge them to amend the Americans with Disabilities Act to add COVID-19 as a disability or same thing while you’re at it, why not ask your Congressman or Senator to further amend the Family Medical Leave Act to provide the 10 weeks paid leave for folks that have COVID-19 or are recovering from COVID-19.

Robert Ingalls: 17:57 Perfect, and we’ll go ahead and link in the blog and in the show notes a resource for finding out who your Congressman or Senator is if you wanted to contact them.

Josh Van Kampen: 18:06 That’d be great, yeah.

Robert Ingalls: 18:08 All right, Josh, well, I appreciate you taking some time with us today and for the listeners, I think it’s important to remember that we are recording this during the middle of a crisis on April 1, 2020. These laws could be changing quickly in real time, and we’re going to do our best to come back here and keep you updated, but there is a chance that these laws, as we’re stating them today can become stale. So remember, never make any decisions before speaking with an attorney. All right, take care.

Outro: 18:36 Congratulations for taking an important initial step in turning the tables at work. But this podcast is just an educational resource. It does not constitute legal advice and is no substitute for consulting an employment attorney about your unique situation before making legal decisions. Visit our website for more online resources and videos at ncemploymentattorneys.com or better yet, call (704) 247-3245 for a free initial intake interview, so Van Kampen Law can evaluate your case. Until next time, keep your head up and your wits about you.