Even as the Massachusetts economy reopens in phases, the Covid-19 pandemic continues to wreak havoc on the usual way of life for working individuals, families, businesses and communities. This article will provide useful information for anyone who is out on, or considering, Covid-related medical leave.
The need for paid sick leave or family medical leave has increased dramatically during the pandemic for those who have contracted the disease, are at high-risk to contract the disease, and also for those who are caregivers to high-risk populations. Under the Families First Coronavirus Response Act (FFCRA), as amended by the Coronavirus Aid Relief Economic Security (CARES) Act, certain employees who need to take time off as a result of the COVID-19 pandemic are afforded extended protections to prevent their employer from firing or otherwise retaliating against any employee because they took sick-leave.
The two key provisions of the FFCRA are the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA). These provisions and the FFCRA in its entirety became effective on April 2, 2020 and will last up through December 31, 2020.
If you’d like to get up to speed on the specifics of the EPSLA and EFMLEA provisions and whether you’re eligible for paid leave, click here.
For employees who have taken leave due to COVID-19 concerns either under the EPSLA or the EFMLEA, it is imperative – now more than ever – that you know your rights and how employers may be violating them.
- It Is Illegal for A Qualified Employer to Refuse to Provide Paid Sick Leave to Eligible Employees Under the EPSLA
If a qualified employer fails to provide paid sick leave as required under the EPSLA, then that is the equivalent of the employer failing to pay minimum wage, which is a violation of Section 206 of the Fair Labor Standards Act (FLSA), and employees have the right to file a civil lawsuit. Employers who violate the paid sick leave requirements are also subject to the enforcement proceedings outlined in the Sections 216 and 217 of the FLSA, which can include the following penalties:
- Fines of up to $10,000, or imprisonment up to 6 months;
- Payment of monetary damages in the amount of unpaid wages, unpaid overtime, and/or lost wages, as well as additional liquidated damages in an amount equal to unpaid wages, overtime, and/or lost wages;
- Payment of employee’s attorney’s fees and costs to bring legal action; and
- Injunction proceedings (where Court can force employer to stop violation).
- It Is Illegal for Employers to Retaliate Against Eligible Employees Who Have Taken or Requested Paid Sick Leave Under the EPSLA
If an employee has requested and/or taken emergency paid sick leave pursuant to the EPSLA, then they are legally entitled to be free from retaliation by their employer on that basis. Specifically, the EPSLA prohibits qualified employers from discharging, disciplining, or discriminating against any employee because:
- The employee took emergency paid sick leave;
- The employee initiated a proceeding under or related to paid sick leave; or
- The employee testified or plans to testify in a proceeding related to paid sick leave.
Employers who engage in this kind of unlawful retaliation are considered to be in violation of Section 215(a)(3) of the Fair Labor and Standards Act. Penalties for employers who violate the EPSLA in this manner can include:
- Fines of up to $10,000, or imprisonment up to 6 months;
- Monetary payments in the amount of an employee’s lost wages;
- Additional liquidated damages in a monetary amount equal to employee’s lost wages; and
- Payment of employee’s attorney’s fees and costs to bring legal action.
Employers in violation may also be required to provide “equitable” relief to the employee, which can include employment, reinstatement to prior position, or a promotion.
- It is Unlawful for Qualified Employers to Interfere With An Employee’s Exercise of Their Rights
Under the EFMLEA, qualified employers are subject to the same requirements outlined in Section 2615 of the Family and Medical Leave Act (FMLA). Specifically, if an eligible employee exercises or attempts to exercise their rights under the EFMLEA, then qualified employers are prohibited from engaging in any of the following:
- Interfering with, restraining, or denying an employee of their rights under the EFMLEA;
- Discriminating against an employee who opposes employer practices that are deemed unlawful under the EFMLEA; and
- Interfering with proceedings initiated under the EFMLEA.
Employers who violate these prohibitions are subject to the enforcement provisions outlined in Section 107 of the FMLA, which can include a variety of penalties:
- Monetary damages in the amount of any wages, salary, employment benefits, or other compensation denied or lost to employee by reason of employer violation;
- Monetary damages in the amount of any actual monetary losses sustained by the employee as a direct result of the violation (ex. cost of providing care);
- Payment of interest accrued on amount of monetary damages awarded;
- Additional liquidated damages in an amount equal to lost or denied wages, salary, employment benefits, or other monetary losses described above;
- Additional liquidated damages in an amount equal to the interest accrued on damages described above;
- Payment of employee’s attorney’s fees and costs to bring legal action; and/or
- Equitable relief provided to the employee in the form of employment, reinstatement to prior position, and/or promotion.
- Qualified Employers Cannot Dictate or Influence the Type of Leave Eligible Employees Choose
Under the FFCRA, qualified employers cannot deny eligible employees of emergency paid sick leave or expanded family and medical leave on the basis that the employee has already taken another type of leave, or taken leave from a different source, even if it was related to COVID-19.
When an eligible employee requests paid leave under either the EPSLA or EFMLEA, the employer is obligated to permit the employee to take such leave immediately – regardless of how much other leave the employee took prior or whether different sources of leave are available.
Employers are prohibited from requiring, coercing, or unduly influencing eligible employees from using another source of paid leave before taking leave under the EPSLA or EFMLEA. Eligible employees may choose to use another source of paid leave if they want, but they are not required to and the decision remains up to them – absent from any employer influences or requirements.
- Paid Sick Leave Taken Under the EPSLA Does Not Negatively Impact An Employee’s Other Rights & Employment Benefits
When an eligible employee under the EPSLA uses paid sick leave, or is entitled to such, their qualified employers cannot diminish, reduce, or eliminate that employee’s other rights or benefits to which they are entitled under the law, collective bargaining agreements, or employer policies that were in effect prior to April 1, 2020.
Other types of leave an employee has a right to, has accrued, or has even used already are not impacted by the use of or eligibility for paid sick leave under the EPSLA. Paid leave under the EPSLA serves as an additional resource for eligible employees, and use of or entitlement to such leave cannot be used against an employee’s balance or accrual of other sources of leave available. And employers who do so are considered in violation of the FFCRA.
