The Families First Coronvirus Response Act & the Future of Employment Litigation

The Families First Coronavirus Response Act (FFCRA), which expanded sick leave requirements for employers, was signed into law on March 18, 2020. Two weeks later, the U.S. Department of Labor (DOL) issued a set of regulations to implement the act’s provisions into workplaces across the country. At its core, the FFCRA aims to provide American workers with the appropriate paid sick leave to either recover from or help care for a loved one facing COVID-19. But for employers, this means carefully reviewing and adhering to these updated leave requirements or risk putting themselves in jeopardy of future legal action.

Here, we’ve explored what could spark future FFCRA litigation.

Expanded Paid Leave: Who is Eligible?

The FFRCA’s employment-related sections are outlined by the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act—which amends the previous federal Family and Medical Leave Act (FMLA). Beginning April 1, 2020, employers with fewer than 500 employees must provide expanded paid leave—sick, family, and medical—for eligible employees. All employees are entitled to two weeks of fully paid sick leave if the employee is unable to work due to quarantine or if they are experiencing COVID-19 symptoms and are seeking testing. All employees are also entitled to two weeks of paid family leave at two-thirds of their normal pay rate if they are unable to work due to caring for a sick child or children whose schools or childcare facilities have closed due to COVID-19. Employees of at least 30 days are further entitled to up to 10 additional weeks of paid sick and family leave at their two-thirds rate.

These regulations do not apply to companies with more than 500 employees, federal employees—who have their own set of leave regulations—or businesses with fewer than 50 employees. Small businesses—under 50 employees—are exempt only if providing this extended leave to employees would impede the ability of the company to survive.

What Does This Mean for Employers?

The FFRCA was officially enacted on April 1, 2020 and remains in effect until December 31, 2020. For this duration, eligible employers are liable to adhere to all government-sanctioned requirements for expanded paid leave or risk legal retribution. Employers will also receive tax credits for the emergency leave funds given to their employees.

The DOL’s outline of expanded leave measures appears straightforward, however, for many companies there remain many technical aspects to consider. What types of employees count towards the 500-person cap? How do you account for multiple companies owned by the same parent corporation? What’s required for an employee to prove their emergency paid leave eligibility? The DOL has also provided a 79 point question and answer resource to address these lingering areas.

COVID-19 & Employment Litigation

With the flurry of reduced shifts, furloughed employees, and telecommuting teams, many companies are scrambling to establish their new normal flow of operations. However, upon the official federal adoption of the FFRCA, eligible employees are required to adhere to these paid leave regulations or face possible future legal challenges. To establish employee protections, the DOL has provided a hotline for employees who are experiencing refusal from their employer to pay for leave. From here, employees may file an official complaint with the Wage and Hour Division.

The DOL has also laid out discrimination protections for employees returning from either a sick or family paid leave. Employees are entitled to return to work in their same role—or an equivalent position. Employers are prohibited from firing or otherwise penalizing an employee for taking paid leave. These guidelines also extend to protect from retaliation against employees who have filed a “complaint or proceeding relating to [the FFRCA], or have or intend to testify in any such proceeding.”

It’s an employer’s responsibility to honor the paid leave eligibilities for their employees, especially when individuals’ protections are so explicitly laid out. Failure to do so will undoubtedly lead to lawsuits filed against those companies from impacted employees. Legal risks for employers could also take the form of class action lawsuits and multidistrict litigation, especially for those employees who were exposed to coronavirus through their place of work.

Insurance companies also lay in the line of fire for FFRCA-related litigation. As workforces are decimated by COVID-19 and employees take paid leaves, business-interruption policies may come into play on the commercial insurance side. Disease pandemics, such as COVID-19, aren’t explicitly covered, which could result in a legal fight between companies and insurance providers. It will be up to the courts to determine the terms of coverage in such unprecedented circumstances.

Workers compensation claims will also see swift spikes. Similar to business insurance claims, the effects of coronavirus in the context of an insurance claim is uncharted territory. Such claims will likely involve official judgment to decide appropriate compensation.

Expert Witnesses for FFRCA Litigation

As adhering to the new FFRCA is employers’ responsibility, human resources experts must be consulted for any related lawsuits. HR experts may opine on the proper practice of adhering to federal guidelines for employee rights.

Insurance experts will also be key for lawsuits pertaining to business interruption claims. An insurance expert witness can opine on the specifics of policy language and pandemic coverage.

Workers compensation expert witnesses will be important for all workers comp-related litigation. They can speak to the specifics of coronavirus claims and where certain compensation is due.

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Pondering the Post COVID-19 Legal Landscape

Coronavirus has disrupted just about every professional industry. Companies and employees alike wrestle to remain afloat in uncertain times, but despite the choppiness, federal law remains the upmost legal guidepost. Employers must carefully consider their responsibilities under FFCRA and employees must understand their rights and protections. But given the life-altering events, the onset of litigation will likely be quick and widespread once the smoke clears. It will be up to the courts to determine justice for a country rocked by a novel viral pandemic.