Covid-19 – Employment Law Updates

FFCRA UPDATE – PAID SICK LEAVE FOR CHILD CARE

Now that regular school activities have ceased, a question has arisen about eligibility for paid sick leave under the Families First Coronavirus Response Act (“FFCRA”) if an employee must stay home to care for a child who is not able to attend summer camp or similar activities due to their cancellation as a result of the Covid-19 pandemic.  Please see these two blog posts for an explanation of the requirements that must be met for a parent to be entitled to paid sick leave to take care of their child.  The basic requirement is a child’s school or place of care is closed, or child care provider is unavailable, due to the Covid-19 pandemic.

Since school is no longer in session, the question becomes whether summer camp or similar activities qualify as a “place of care.”  In a recent Field Assistance Bulletin issued by the Wage and Hour Division of the U.S. Department of Labor, that question is answered in the affirmative.  The parent of a child who would have normally attended a summer camp or similar activity, which activity will now no longer take place due to the Covid-19 pandemic, is entitled to paid sick leave under the two components of FFCRA, if they satisfy its other requirements.

It is not necessary that the child have already applied for or been enrolled in such a cancelled activity.  It is sufficient if the child had attended the activity in question in the previous year and was eligible to attend this year.  It would also be sufficient if the child had never attended the activity in question, but the parent can prove to the employer’s satisfaction that he or she intended to enroll the child in that activity this year and the child would most likely have been allowed to attend it.

An employer can require the employee to provide a written statement that names the child, the summer camp or similar activity that he or she would likely have attended with supporting documentation, and that the closure of that activity leaves no other suitable person to take care of the child.  As in other situations covered by FFCRA, if the employer has work that could be performed by the employee from home, the employee must show why that cannot be done in the particular situation to be entitled to paid sick leave to take care of their child.

EEOC UPDATE – ANTIBODY TESTING OF EMPLOYEES

The Equal Employment Opportunity Commission (“EEOC”) has recently updated its FAQ page regarding the application of federal employment discrimination laws to the Covid-19 pandemic.  The update concerned whether employers could require employees to be tested for Covid-19 antibodies.  Such a test, if accurate, would reveal whether the employee had been exposed to the Covid-19 virus or had previously contracted it and recovered.  Which of these is the case can’t be determined from the results of this test.

Most likely for this reason, the Centers for Disease Control and Prevention has recommended that an antibody test not be used to determine whether employees can be permitted to return to work.  Acting on that recommendation, the EEOC has determined that employers would be in violation of the Americans with Disabilities Act (“ADA”) if they required their employees to take such a test before they could return to work.   This determination is only important for those agencies and other employers who have 15 or more employees, as the ADA only applies to such employers.

However, the EEOC continues to permit employers to require returning employees to submit to a test to determine if they are currently infected with the Covid-19 virus.  It also continues to permit employers to require employees who have been infected with the virus to submit a doctor’s note certifying the employee is virus free and fit for duty before allowing them to return to work.

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