As schools begin to reopen, it is critical that employers and employees adhere to federal regulations regarding labor and develop strategies to ensure the safety of students, faculty, and staff. Recently, Michelle Craig, our Founding Partner, spoke and presented to the Louisiana Charter School Association about the intersection of the leave laws, the CDC guidelines, and including the Families First Coronavirus Relief Act and the Americans With Disabilities Act and how they affect the employer-employee relationship. 

Prior to opening, schools should work to develop comprehensive “Return to School” policies that take into consideration the legal requirements and health guidelines presented by local, state, and federal governments. It’s important to communicate this policy with Staff and clarify uncertain provisions and address concerns. Most importantly, however, administrators and schools’ leaders should be flexible. This global pandemic has disrupted much of our routines and plans. This is a first for many of us, and therefore, it is crucial to be adaptable and open to adjustments to plans. 

What does the Families First Coronavirus Relief Act do?

The Families First Coronavirus Relief was created to provide assistance to employees during the pandemic by expanding family and medical leave and sick leave. There are two important sections to the Act: 

  • Division C: The Emergency Family and Medical Leave Expansion Act (EFMLEA)
  • Division E: The Emergency Paid Sick Leave Act. 

Who does the EFMLEA apply to?

The EFMLEA applies when the employee is unable to work because he or she has to care for a minor child because the child’s school or place of childcare is unavailable due to a public health emergency. The EFMLEA provides the 12-weeks of leave normally provided by the Family and Medical Leave Act (FMLA) to allow an employee to care for a child subject to the above circumstances. The first 10 days are unpaid, the net ten weeks an employee can be paid a portion of his or her salary. 

EPSLA Gives Employees More Sick Leave 

The Emergency Paid Sick Leave Act (EPSLA) kicks in when an employee takes time off due to the six reasons listed in the act. They include:

  1. The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19; 
  2. The employee has been advised by a health care provider to self-quarantine because of COVID-19; 
  3. The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis; 
  4. The employee is caring for an individual subject or advised to quarantine or isolation; 
  5. The employee is caring for a son or daughter whose school or place of care is closed, or childcare provider is unavailable, due to COVID- 19; or 
  6. The employee is experiencing substantially similar conditions as specified by the Secretary of HHS.

It grants the employee 80 hours of paid sick leave in addition to any paid leave already provided by the employer. Unlike the EFMLEA, employers cannot require employees to exhaust their paid time off before using EPSLA.  If the employee is a full-time employee, then they are paid at the regular rate of pay; however, if they are caring for a family member, it is 2/3 their regular rate. Part-time employees, on the other hand, are paid their average number of hours worked over a two-week period. Employers should work with their attorneys to make sure the appropriate reason for leave is documented and the appropriate payments are made. 

The Americans With Disabilities Act (ADA)

The ADA protects employees from discrimination based on a disability and allows employees to request reasonable accommodations. When teachers and staff request accommodations based on a disability related to COVID-19 or other health concerns, the process is not much different from other ADA requests. Engage in the Interactive Process and talk to employees about their requests and review doctor’s notes containing the restrictions. Try your best to determine the safest possible accommodation that works for the school but remember to be flexible. If there are disagreements, try to work through the decision that would maximize the employee’s ability to take the time they need while minimizing the disruption to your organization. With a little planning and a lot of give and take, most accommodation requests can be handled in a supportive, reasonable way.

Because of the nature of the COVID pandemic normal rules related to the ADA have been relaxed. Employers are confused about what they can and cannot do and what they can and cannot ask. Below are some FAQs that many employers have asked about. Others can be found here.

When an employee calls in sick, can we ask for more information about the illness?  Because of the direct threat nature of COVID, employers are allowed to ask for more information. Employers can ask if employees are experiencing influenza-like symptoms, such as fevers or chills, and a cough or sore throat. The Centers for Disease Control and Prevention notes that people with certain conditions put them at higher risk for severe illness from COVID-19. As long as the pandemic is considered a “direct threat” by the CDC and public health officials, employers may ask employees to disclose if they have a medical condition that puts them at higher risk. For more information, see the U.S. Equal Employment Opportunity Commission website.

Do employees need to provide a doctor’s note certifying fitness for duty? Generally, employers can ask employees to provide a doctor’s note, however, as a practical matter, health care professionals may be too busy during and immediately after a pandemic outbreak to provide such documentation. In these cases, employers should be open to other forms of certifications, such as forms from local clinics or an email from the clinic or doctor regarding fitness to return to work. 

Can employees request accommodations if they are concerned about exposing a high-risk family members? No, not under the ADA. The protections provided by the ADA are limited to  employees. However, the requesting employee may be allowed leave under another law. 

Ensuring a Successful School Year

The pandemic has caused many complications, and this type of school year will be a first for everyone. Remember that the goal is to ensure that every student is academically successful in this environment. Parents and teachers must foster a positive, supportive environment for them regardless of whether that environment is virtual, hybrid, or on-campus. One way to ensure that we achieve these goals is to make sure all staff and parental concerns are addressed. Tackle these concerns through early and frequent communication and handle them with compassion and understanding, even when the request is difficult to fulfill. The schools that will make this transition in a way that is most beneficial to the students they serve are the ones that are flexible, creative, and quick to address the adjustments that need to be made to fit their student population.