Life has changed dramatically this year due to the coronavirus pandemic. Companies have been forced to adjust to many new developments, including new staff-related legislation. For example, as a self-storage operator, you may have wondered what happens if an employee has to miss work due to COVID-19, either because he gets sick or has to care for someone in his family who becomes ill.
On March 18, Congress passed the Families First Coronavirus Response Act (FFCRA) to these kinds of questions. The law includes two separate acts related to paid leave. Both are set to expire on Dec. 31, but there’s a chance they’ll be extended. They apply to private companies with fewer than 500 employees, so self-storage operators must understand these provisions and how they impact facility operation.
Emergency Paid Sick Leave Act (EPSLA)
The EPSLA allows an employee to take paid sick leave if he’s unable to work (including telework) because he is:
- Subject to a federal, state or local quarantine or isolation order related to COVID-19
- Advised by a healthcare provider to self-quarantine
- Experiencing COVID-19 symptoms and seeking a medical diagnosis
- Caring for an individual who’s subject to an order or self-quarantine
- Caring for a child whose school, place of care or childcare provider is closed or unavailable due to COVID-19
- Experiencing any other substantially similar condition as specified by the U.S. Secretary of Health and Human Services in consultation with the U.S. Secretary of Labor and the U.S. Secretary of the Treasury
Under EPSLA, all full-time employees are eligible for up to 80 hours of paid sick leave. Part-time employees are entitled to paid time off equal to the number of hours they’ve worked on average over a two-week period.
If an employee takes paid sick leave for reasons one, two or three above, he must be paid at his regular rate of pay or the applicable minimum wage, whichever is higher, with a maximum rate of $511 per day and $5,110 over a two-week period. If he takes paid sick leave for reasons four, five or six, he must be paid two-thirds his regular rate or two-thirds the applicable minimum wage, whichever is higher, with a maximum rate of $200 per day and $2,000 over a two-week period.
A notice containing information about EPSLA must be posted at your worksite. In addition:
- Emergency paid sick leave is available to all employees, regardless of how long they’ve been with the company.
- Paid leave can be taken intermittently if the reason is reason five above (loss of childcare).
- Employers can’t require an employee seeking leave to find a replacement to cover his work hours. That is the employer’s responsibility.
Emergency Family and Medical Leave Expansion Act (EFMLEA)
The EFMLEA allows employees to take emergency leave for certain absences related to COVID-19; but it only applies to those who’ve been employed for at least 30 days. It covers staff who need time off to care for a child because the child’s school or care center has closed, or the childcare provider is unavailable because of a COVID-related emergency.
Eligible employees can receive up to 12 weeks of leave under the EFMLEA. The first 10 days are unpaid, but staff can use other paid leave, including under the EPSLA, for those days. Employees taking leave under the EFMLEA are paid at a rate equal to at least two-thirds of their regular rate multiplied by the number of hours in their average work week, with a maximum rate of $200 per day and $10,000 total.
Staff who take leave under the EFMLEA are generally guaranteed to return to the same or substantially equivalent position with the employer if it has 25 or more employees. If the company has fewer than 25 employees, it doesn’t have to fulfill those obligations if any of the following are true:
- The employee took leave to care for a child whose care was unavailable due to COVID.
- The employee’s position no longer exists due to economic conditions or other changes caused by the pandemic.
- The employer made reasonable efforts to return the employee to an equivalent position. If those efforts failed, the employer must make reasonable efforts for a period of time to contact the employee if an equivalent position becomes available.
Companies with fewer than 50 employees may be exempt from having to provide paid leave under EPSLA or EFMLEA for these reasons:
- Closure of school or loss of childcare due to COVID-19, if the leave would cause the employer’s expenses and financial obligations to exceed available business revenue and cause the company to cease operating at a minimal capacity
- The employee’s absence would pose a substantial risk to the financial health or operational capacity of the employer because of his specialized skills, knowledge of the business or responsibilities
- The employer can’t find enough other workers who are able, willing and qualified, and who’ll be available at the time and place needed to perform the labor or services the employee requesting leave provides, and these labor or services are needed for the employer to operate at a minimal capacity
Employee Refusal to Work
What happens if your self-storage facility is open for business, but an employee doesn’t want to come into work for fear of contracting coronavirus? The first step is to get clarification on why he doesn’t want to return and see if you can alleviate his concerns.
There may also be federal or state law implications from an employee’s refusal to work. For example, the Occupational Safety and Health Act allows an employee to refuse to work if the employee believes he’s in imminent danger and there’s insufficient time for the employer to eliminate it. However, that fear can’t be general; so, a general fear of catching COVID may not be enough. Additionally, compliance with federal, state and local guidance on coronavirus prevention will help thwart an employee claim.
If the employee is part of a higher-risk group with pre-existing medical conditions, he may be entitled to reasonable work accommodations under the Americans With Disabilities Act, such as teleworking, plexiglass separators, or other barriers to ensure minimum distance between customers and co-workers. In these situations, it’s best to be flexible and find a reasonable accommodation to allow the employee to continue working.
The National Labor Relations Act permits non-unionized employees to engage in protected concerted activity, which includes refusing to work due to unsafe conditions. Thus, it protects a group of non-union employees refusing to work due to unsafe conditions—such as not being provided with adequate personal protective equipment—from employer discipline or discharge. However, employees’ refusal to work must be reasonable and in good faith.
For self-storage employers and employees, it’s important to understand the paid-leave rights afforded under these temporary federal laws, along with any applicable state laws. During such odd and unpredictable times, being flexible and understanding toward your staff could go a long way in building and retaining a strong working relationship.
Ashley Oblinger is an attorney in the Atlanta law firm of Weissmann Zucker Euster Morochnik & Garber, P.C., where he specializes in business and self-storage law, advising operators nationwide on all legal matters, including lease preparation, lien enforcement, tenant issues, tenant-claims defense, and employment policies. To reach him, call 404.760.7434; email [email protected].