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Sick-leave policies have changed for employers, but experts say they're tricky to navigate

Korin Miller

05/06/2020

 

A sign says that Maui Beach Tanning Salon is open on April 24, in Marietta, Ga., where Gov. Brian Kemp announced some "nonessential" businesses could reopen. (Kevin C. Cox/Getty Images)

A sign says that Maui Beach Tanning Salon is open on April 24, in Marietta, Ga., where Gov. Brian Kemp announced some "nonessential" businesses could reopen. (Kevin C. Cox/Getty Images)

Nonessential employees across the United States are slowly returning to a more normal version of work as stay-at-home orders lift. But they’re coming back to changed sick-leave policies.

The Families First Coronavirus Response Act (FFCRA) went into effect on April 1 and requires that qualifying employers provide up to two weeks of fully-paid sick leave for employees who have a confirmed or suspected case of COVID-19. The FFCRA also requires that these companies — which include some public and private employers with fewer than 500 employees — grant employees two weeks of sick leave at two-thirds their normal pay if they’re caring for someone with the virus.

It doesn’t stop there: The FFCRA also requires that employees receive 10 weeks of family and medical leave at two-thirds of pay if their child’s care provider or school is closed because of COVID-19.

Companies with fewer than 50 employees can apply for exemption from the law, but it’s not clear what, exactly, qualifies as an exemption, health care analyst Seth Denson, co-founder and chief strategist at GDP Advisors, tells Yahoo Life. “Effectively they have to show a specific hardship,” he says.

The Family and Medical Leave Act (FMLA), which allows employees to take reasonable medical leave, still applies, and the FFCRA “essentially helps bridge the gap” in coverage for employees, Denson says.

The paid sick leave "must be in addition to any paid time-off benefits employers already were providing to their employees," Liz Petersen, quality manager at the Society for Human Resource Management (SHRM), tells Yahoo Life. 

As of now, the new policy is in effect until the end of 2020, according to the U.S. Department of Labor.

The law sounds good in theory, but employment experts say there is much potential for complications.

“We’re getting a lot of questions from employers about how to make sure people are legitimately allowed to take paid sick leave and then what to do to make sure people legitimately have medical issues,” Larry Stuart, an employment lawyer in the Houston-based law firm Stuart PC and an adjunct professor at the Jones Graduate School of Business at Rice University, tells Yahoo Life. “At the same time, a lot of employees and executives don’t want to go back to work because they don’t think it’s safe.” Others are trying to resist or push back going back to work in order to collect unemployment benefits or benefits under the new legislation, he says.

“There’s a lot of room for fraud and room for mishandling by employers,” Stuart says. 

Denson agrees. “Like most legislation, it has a good foundation, but it needs work to bring clarity,” he says. “I have 40 employees. I have to have clarity to understand what I can and can’t do. Otherwise we get into a potential litigation scenario if perhaps an employee perceives the law one way and I perceive it another.” 

Denson says he has heard from several clients that they’re having trouble getting employees back to work. “As of right now, an employee can ultimately make the determination on their own that they need to shelter in place or if they may have been exposed to COVID-19 — without verification from a medical doctor,” he says. “It’s a very slippery slope.”

Things can also get tricky if an employee falls into what the Centers for Disease Control and Prevention considers a high-risk group for COVID-19, Stuart says. That group includes people over the age of 65 and those with health conditions like diabetes, moderate to severe asthma and severe obesity.

“Normally, employers cannot discriminate against individuals based on age, but the CDC guidance suggests that people over the age of 65 might not be able to work safely in the workplace,” he says. “You can have people who say, ‘I’m over 65. It’s not safe for me to go back to work,’ while employers may say, ‘Unless you have a medical issue, why aren’t you here?’”

Under the FFCRA, if an employer pays an employee for COVID-related sick leave, the company can get a tax credit. But Stuart says that also creates potential issues between workers and companies. “The IRS is likely going to require documentation that the person who received those benefits was, in fact, eligible for them,” Stuart says. But given the lack of COVID-19 testing, he says this can be tough to track. “If someone says, ‘I don’t feel well’ and they think they have COVID-19, do companies require them to get a doctor’s note, to get a test?” Stuart says. “How that gets recorded and documented could impact eligibility for a tax credit.”

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