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AEA Advisory: Employment Rights During COVID-19

March 11, 2020, the World Health Organization declared the coronavirus/COVID-19 outbreak to be a pandemic.
Published: April 8, 2020

On March 11, the World Health Organization declared the coronavirus/COVID-19 outbreak to be a pandemic. On the same date, Governor Ducey declared that a state of emergency exists in Arizona based on the COVID-19 outbreak, authorized the use of state assets, and directed ADHS to coordinate all matters pertaining to the public health emergency response. On March 13, President Trump likewise declared a national emergency based on the coronavirus pandemic. As discussed below, several measures have been passed at the federal and state levels to respond to the coronavirus and to mitigate its impact.

Families First Coronavirus Response Act (FFCRA)

HR 6201, known as the Families First Coronavirus Response Act (FFCRA), applies to all public school districts, regardless of size. This act provides school employees with Emergency Paid Sick Leave and Public Health Emergency Leave, in addition to any other available leave benefits employees may have, as follows:

Emergency Paid Sick Leave:

  • Full-time employees are entitled to 80 hours of paid sick time (the equivalent of 10 eight-hour days).
  • Part-time employees are entitled to the number of hours they ordinarily work on average over a two-week period; for part-time employees with a variable schedule, leave is calculated based on the number of hours the employee was scheduled per day over the previous six-month period.
  • Leave is available for immediate use, regardless of how long the individual employee has been working for the employer.
  • Leave may be used only if the employee is unable to work (or telework) because of any of the following:
  1. Employee is subject to a federal, state, or local quarantine or isolation order related to coronavirus;  

  2. Employee has been advised by a health care provider to self-quarantine due to concerns related to coronavirus; 

  3. Employee is experiencing coronavirus symptoms and seeking a medical diagnosis;

  4. Employee is caring for an individual who is subject to a federal, state, or local quarantine or isolation order related to coronavirus; or who has been advised by a health care provider to self-quarantine due to concerns related to coronavirus; 
         Note: There does not appear to be any particular relationship requirement for this “caring for” provision.

  5. Employee is caring for a son or daughter if a school or place of care has been closed due to coronavirus, or the childcare provider of the son or daughter is unavailable due to coronavirus; 
         Note: “Son or daughter,” as under the FMLA, includes a biological, foster, or adopted child, a stepchild, a child of a domestic partner, a legal ward, or the child of a person standing in loco parentis, under 18 years of age.

  6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of Labor and Secretary of the Treasury.

  • Compensation amounts:
  1. For leave related to the employee’s own quarantine or illness (nos. 1-3 above), compensation is their full rate of pay, up to a maximum of $511 per day and $5,110 total.
  2. For leave related to caring for another individual (nos. 4-6 above), compensation is at two-thirds of the employee’s regular pay, with a cap of $200 per day and $2,000 total.
  • Emergency paid sick leave may be used prior to any existing paid leave. Employers are prohibited from requiring employees to use other paid leave first, and may not modify their existing paid leave policies to avoid being subject to this requirement. However, employees may choose to use other available accrued leave under some circumstances (for example, under the above qualifying reasons 4-6, which only pay two-thirds of an employee’s regular pay up to $200/day) in order to receive full pay.
  • After the first workday in which an employee receives emergency paid sick leave, the employer may require the employee to follow reasonable notice procedures.
  • Employers cannot require, as a condition of providing emergency paid sick leave, that an employee be involved in searching for or finding a replacement worker.
  • Employees are protected from retaliation (including job loss, discipline and discrimination) for using emergency paid sick leave or filing a complaint.
  • Emergency paid sick leave does not carry over from one year to the next, and is not paid out at the termination of employment.

Public Health Emergency Leave (also known as Emergency Family and Medical Leave Expansion Act Leave):

  • This type of leave provides up to 12 weeks of partially-paid, job-protected leave to employees who are unable to work (or telework) due to a need for leave to care for a son or daughter under the age of 18 if the school or place of care has been closed, or the child’s childcare provider is unavailable, due to a public health emergency related to coronavirus (as declared by a federal, state or local authority). This is the only qualifying reason for this type of leave.
    Note: “Son or daughter” includes a biological, foster, or adopted child, a stepchild, a child of a domestic partner, a legal ward, or the child of a person standing in loco parentis (meaning one who is acting and intending to act as a parent, with no requirement of a legal or biological relationship), under 18 years of age.
  • Employees must only have been employed for at least 30 days to access this leave (as opposed to the 12-month employment period for FMLA).
  • At the employee’s option, the first 10 days of this leave may be taken as unpaid leave or the employee may elect to substitute any accrued vacation, personal, or sick leave (including emergency paid sick leave). However, the employer may not require such substitution of paid leave.
  • Leave may be taken for up to 12 weeks, the final 10 weeks of which are paid as public health emergency leave. Ordinarily, FMLA leave is unpaid, so this is a key change.
  • After the first 10 days, leave is paid at an amount not less than two-thirds of the employee’s regular rate of pay, based on the number of hours the employee would otherwise normally be scheduled to work, capped at $200 per day and $10,000 in the aggregate.
  • For part-time workers, pay is equal to the average number of hours per day the employee was scheduled to work over the previous 6-month period.
  • Because caring for a child whose school or place of care is closed due to coronavirus is also a qualifying reason for emergency paid sick leave, it is important to emphasize that an employee who cannot work for this reason could choose to take two weeks of emergency paid sick leave (paid at two-thirds of an employee’s regular rate of pay up to $200/day) followed by another 10 weeks of public health emergency leave (also paid at two-thirds of an employee’s regular rate of pay up to $200/day) -- all without having to use existing leave benefits. However, such leave would not be at full pay.
  • If the need for leave is foreseeable, the employee must provide the employer with notice of leave, as is practicable. Job protection/restoration: As with the FMLA, job restoration is required. Employees who take public health emergency leave are entitled upon return from leave to be restored to their job position or to an equivalent position with equivalent employment benefits, pay, and other terms/conditions of employment.

Coronavirus Aid, Relief, and Economic Security Act (CARES Act)

The CARES Act provides for stimulus payments for individuals. The payments phase out at higher income levels. The payments are based on filing status (married vs. single), income, and number of children. The payments are expected to be made within the coming month or two.

In addition, the CARES Act provides for expanded unemployment eligibility and benefits. Currently, weekly state unemployment benefits are capped at $240 and may last for up to 26 weeks. Under the CARES Act, the federal government is funding up to another $600 in weekly benefits (up to $840 in total benefit) and extended benefits for up to another 13 weeks (for 39 weeks in total). In addition, eligibility for unemployment is being expanded to include self-employed individuals and others who were not previously eligible for unemployment.

Arizona School Closures Act

On March 15, Governor Ducey and State Superintendent of Public Instruction Hoffman jointly announced the closing of all schools statewide until March 27, later extending this to April 10. Prior to the announcement, AEA had already called for students to stay home and dozens of Arizona public school districts had already closed schools, either for some period of time or indefinitely, citing concerns about student and staff safety and the goal of limiting exposure to, and slowing the spread of, the virus. On March 30, Governor Ducey and Superintendent Hoffman announced that schools will be closed through the end of the school year.

The Arizona School Closures Act, House Bill (HB) 2910, addresses a wide range of issues related to public school closures due to the coronavirus pandemic. This act provides for continued pay for school employees during the school closures while employees are committed to being available to work. Under these conditions, school districts may not require employees to use accrued leave in order to receive pay during the closures.

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