April 09, 2020

Although Congress and the U.S. Department of Labor moved fast to put in place an emergency paid leave law designed to help workers weather the coronavirus pandemic, plaintiff-side lawyers say they adopted a flawed approach that falls short of giving people all the help they'll need.

The Families First Coronavirus Response Act, which President Donald Trump signed into law in March, was enacted as part of lawmakers' broader effort to help millions of Americans cope with the COVID-19 pandemic. After the law's passage, the DOL issued a "temporary rule" and several rounds of guidance to help employers and workers understand the nuances of the law, which took effect on April 1 and will expire at the end of the year.

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The new law, which applies to businesses with 500 or fewer employees, includes two key paid leave components: the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act. 

The first of those creates a two-week paid sick time benefit in which workers get full pay up to $511 per day if they're directly affected by COVID-19, or partial pay up to $200 a day to care for affected family members. 

The law also amends the Family and Medical Leave Act to provide workers with up to 10 weeks off at partial pay, up to $200 per day, to care for children whose schools or child care centers have closed due to the virus, after two unpaid weeks. Employers covered by the law can seek reimbursement of any qualifying FFCRA leave through tax credits.

Broad Exclusions 

One potential problem that plaintiffs attorneys see in the law is that it contains carveouts for both the largest and smallest businesses.

The 500-employee threshold means that big companies with expansive workforces aren't covered by the statute. And businesses with fewer than 50 employees can score an exemption from having to provide leave to workers whose kids' schools are closed if the workers' absences "would jeopardize the viability of the business as a going concern."

When taken together, those two provisions potentially leave huge swaths of the workforce unable to take advantage of the law's emergency paid leave entitlements, said Davida Perry of Schwartz Perry & Heller LLP. 

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Shaylyn Cochran, a partner at Cohen Milstein Sellers & Toll PLLC, similarly said that segments of workers will find themselves left out.

"A lot of employees in this country work for large companies, and while some of those companies certainly may have their own paid leave programs in place, it's foreseeable that not all of them will," she said. "And even to the extent that these large companies do have their own programs in place, there's no guarantee that they will necessarily be commensurate with the federal guidelines."

For companies with fewer than 50 workers, Cochran said the businesses will have to make some type of showing that they meet the DOL's criteria to qualify for the exemption and document that analysis. But despite that, it's still possible that people who need to take off for child care purposes may not be able to, she said.

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Uptick in Worker Queries

Given the nuances and intricacies of the new requirements, Cochran said it's paramount for low-wage workers and individuals from racial minorities who have been disproportionately impacted by COVID-19 to receive accurate information about how their rights have been expanded "to ensure that people are able to advocate for themselves on the job."

And workers have increasingly made the effort to get up to speed, with Cochran noting that she's seen a significant uptick in people seeking information about how the new legal terrain affects them. 

"I've gotten a number of inquiries from workers who are not yet infected — and hopefully won't be infected — but are just anticipating something happening to them or someone in their families," she said. "People are being extremely proactive in trying to understand what their rights are in a way that I think is smart. "

With new rules and guidance being issued so quickly, Cochran said the responsibility falls on worker-side lawyers to make sure all relevant information is being communicated.

"There's certainly a concern or at least a challenge in the speed at which all this is happening," she said. "Because we're in uncharted territory, it puts an extra onus on us as plaintiffs attorneys to ensure that we are getting information out to people."

The complete article can be viewed here.