As more news breaks of the spread of the Coronavirus and the measures taken by government and private sector institutions in response, one topic that persistently arises is paid sick leave. The CDC has advised employers to encourage sick employees to stay home, to ensure that employees are aware of sick leave policies, and to ensure that their policies are flexible and consistent with public health guidance. In response, companies across the country attempting to deal with the impact of coronavirus have already revisited their existing paid leave policies or implemented new paid leave policies in order to protect their workers. This week, companies like Walmart and Darden Restaurants (parent company of Olive Garden, Longhorn Steakhouse, and other nationwide chains) announced new policies in response to the outbreak.
In Walmart’s case, employees who contract the virus or are subject to mandatory quarantines will receive up to two weeks’ pay (the recommended length of quarantine) and that absences would not be counted against attendance. Even workers who are not sick or quarantined, but are uncomfortable reporting to work during the outbreak, would not be subject to penalties.
Darden announced a policy that should look familiar to Maryland employers – one in which all hourly employees will receive permanent paid sick leave benefits accruing at the rate of 1 hour for every 30 hours worked.
If you have been following these HR Tips over the last two years, you know that the Maryland Healthy Working Families Act became law on February 11, 2018. You would also know that the law requires employers with over 14 employees to provide paid sick and safe leave and employers with 14 employees or less to provide unpaid sick and safe leave, and that a company policy must allow an employee to earn at least 1 hour of paid sick and safe leave for every 30 hours worked (just like the new Darden policy). While the Maryland law allows employers to impose a number of limitations on accrual and use of leave, we know from the CDC guidance that now is the time to be more flexible in the application of your existing policies. What does this mean for Maryland employers?
- If your policy prohibits employees from using leave within the first 106 days of employment, consider waiving that restriction during the state of emergency.
- If your policy requires employees to provide notice and verification from a doctor in order to utilize sick and safe leave, consider waiving this requirement during the state of emergency and allowing the employee to use the leave without penalty even if they do not supply a doctor’s note. On this point, the CDC has advised that employers should “not require a healthcare provider’s note for employees who are sick with acute respiratory illness to validate their illness or to return to work, as healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely way.”
- If you updated your policies in response to the enactment of the Maryland Healthy Working Families Act, make sure your employees are aware of this benefit under Maryland law. With the barrage of news about paid sick leave from around the country, it is important that workers in Maryland know what laws and policies apply to them so they do not get confused with news from other states.
Once an employee has exhausted any paid leave available under your Company’s policies, there is no requirement that they be paid, and you should refer to any unpaid leave policies your Company maintains while keeping in mind the CDC’s recommendation of being flexible with those policies.
Additionally, an employee on leave due to experiencing coronavirus symptoms or caring for an immediate family member with coronavirus symptoms may be entitled to unpaid leave under the Family Medical Leave Act, which provides eligible employees who are incapacitated by a serious health condition (which may include coronavirus or accompanying complications), or who are needed to care for covered family members who are incapacitated by a serious health condition, with 12 weeks of job-protected leave. Leave taken by an employee who does not have a serious health condition or whose immediate family member does not have a serious health condition, but instead for the purpose of avoiding exposure, would not be protected under the FMLA.
On a related note, Maryland employers should also consider the restrictions imposed by the Americans with Disabilities Act and the Maryland Fair Employment Practices Act, which generally prohibit employers from making inquiries regarding an employees’ medical condition. However, the EEOC recently issued guidance as to how the medical inquiry restrictions apply during a pandemic so that employers can navigate the fine lines between the CDC guidance and the ADA. Specifically, the EEOC advises that employees who become ill or symptomatic at work should leave the workplace and employers may ask such employees if they are experiencing influenza-like symptoms such as fever, chills, cough, or sore throat. You may access the EEOC coronavirus guidance here: https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm, and the guidance titled “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act” may be accessed here: https://www.eeoc.gov/facts/pandemic_flu.html.
Adam E. Konstas is an Attorney in PK Law’s Education and Labor Group. He represents local school boards, superintendents, private schools, colleges, and private sector employers before federal and state courts, and federal and state civil rights agencies on a variety of matters, including employment discrimination litigation, teacher and student discipline, collective bargaining, and sexual harassment. Mr. Konstas also advises schools on the design and implementation of policies and procedures regarding student and employee relations, and system-wide policy issues including the use of online instructional tools and cloud computing, student data privacy, anti-discrimination, and website accessibility.
Mr. Konstas is an adjunct professor of school law at McDaniel College, where he completed a class on “Best Practices for Online Teaching and Learning” and is currently teaching an online school law class. He has also lectured on employment law at the University of Baltimore School of Law. Mr. Konstas can be reached at 410-339-5786 or akonstas@pklaw.com.
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