By Vin Gurrieri

Law360 (April 9, 2020, 10:29 PM EDT ) Although Congress and the U.S. Department of Labor moved fast to put in place an emergency paid leave law designed to help workers weather the coronavirus pandemic, plaintiff-side lawyers say they adopted a flawed approach that falls short of giving people all the help they'll need.

The Families First Coronavirus Response Act, which President Donald Trump signed into law in March, was enacted as part of lawmakers' broader effort to help millions of Americans cope with the COVID-19 pandemic. After the law's passage, the DOL issued a "temporary rule" and several rounds of guidance to help employers and workers understand the nuances of the law, which took effect on April 1 and will expire at the end of the year.

While plaintiffs lawyers were happy to see Congress act quickly to lend workers a helping hand, Josh Van Kampen of Van Kampen Law PC said there are "some serious flaws" in the new statute and guidance that he believes "are going to jeopardize the good that they would do."

"If you listen to politicians, there's quite a bit of kumbaya about how we're all going to come together as a country," he said. "But in the workplace, just anecdotally from the calls we're getting, there seems to be quite a bit of desperation and unpreparedness on the part of employers. There's a lot of bad stuff happening."

New Legal Landscape

The new law, which applies to businesses with 500 or fewer employees, includes two key paid leave components: the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act. 

The first of those creates a two-week paid sick time benefit in which workers get full pay up to $511 per day if they're directly affected by COVID-19, or partial pay up to $200 a day to care for affected family members. 

The law also amends the Family and Medical Leave Act to provide workers with up to 10 weeks off at partial pay, up to $200 per day, to care for children whose schools or child care centers have closed due to the virus, after two unpaid weeks. Employers covered by the law can seek reimbursement of any qualifying FFCRA leave through tax credits.

Broad Exclusions 

One potential problem that plaintiffs attorneys see in the law is that it contains carveouts for both the largest and smallest businesses.

The 500-employee threshold means that big companies with expansive workforces aren't covered by the statute. And businesses with fewer than 50 employees can score an exemption from having to provide leave to workers whose kids' schools are closed if the workers' absences "would jeopardize the viability of the business as a going concern."

When taken together, those two provisions potentially leave huge swaths of the workforce unable to take advantage of the law's emergency paid leave entitlements, said Davida Perry of Schwartz Perry & Heller LLP. 

"I think that's a lot [of businesses] that won't be required to pay sick leave or the expanded family leave," she said. "That's one area that is of some concern."

Shaylyn Cochran, a partner at Cohen Milstein Sellers & Toll PLLC, similarly said that segments of workers will find themselves left out.

"A lot of employees in this country work for large companies, and while some of those companies certainly may have their own paid leave programs in place, it's foreseeable that not all of them will," she said. "And even to the extent that these large companies do have their own programs in place, there's no guarantee that they will necessarily be commensurate with the federal guidelines."

For companies with fewer than 50 workers, Cochran said the businesses will have to make some type of showing that they meet the DOL's criteria to qualify for the exemption and document that analysis. But despite that, it's still possible that people who need to take off for child care purposes may not be able to, she said.

Not Enough Time

Although the FFCRA does give workers paid sick time for as many hours as they generally work in two weeks, up to 80 hours, that number may fall far short of the amount of time workers infected with COVID-19 need to recover from the virus, Van Kampen said. 

"You can't even get a test in two weeks to know if you've got COVID-19, let alone the clean bill of health, the doctor's note that an employer is going to require you to submit to return to work," he said. "That two-week period is entirely fanciful for what people are actually going to be encountering with this virus."

Van Kampen said the two-week paid sick leave allotment would have been better had it been combined with a component that allowed workers who actually have COVID-19 to use expanded family and medical leave for that reason. 

But Congress, "in a really perplexing move," limited the FMLA expansion only to people who have to stay home because their child isn't able to go to school or child care, he said.

"It makes no sense to me that the people that are actually sick and who are going to burn through these two weeks would then not be covered by the family leave expansion, but the people who are healthy but just at home with their child who can't report to school would be covered," he said.

Gaps in FMLA Coverage

Perry also expressed concern that the expanded FMLA portion of the FFCRA is too narrow in scope since it only covers parents who have to care for kids whose schools or day cares are closed, calling that a "limited reason" for workers to be able to use that benefit.

"We can envision a whole host of other issues that may make someone have to leave the workplace that's related to COVID-19," she said. 

Moreover, Perry called attention to the fact that the first 10 days of expanded FMLA leave are unpaid, meaning that workers who want to be paid or need to be paid for that time would have to "tap into" existing benefits that they've accrued like sick time or other paid time off.

"You'd be using benefits that won't be there for you later on when things get up and running," Perry said. "They can certainly take the first 10 days unpaid and not use those benefits, but that seems like a hardship."

Van Kampen said workers who become infected with COVID-19 may be able to get unpaid leave under the traditional FMLA since there isn't much question that COVID-19 would qualify as the sort of "serious health condition" that triggers coverage. But that law, too, has long suffered from "a major flaw" of not covering large segments of businesses and workers, he said.

Traditional FMLA only covers employees who have been working for their employer for at least one year and at least 1,250 hours during the year. The employer must also have at least 50 employees within 75 miles of the employee's worksite in order to make the worker eligible for traditional FMLA.

"There are problems that maybe Congress will still act to address, but those are some Grand Canyon-sized gaps," Van Kampen said. 

High Bar to Prove Violations 

Under the portion of the FFCRA that deals with paid sick leave, it is unlawful for employers to fire, discipline or discriminate in any way against employees who use the entitlement or complain about being unfairly denied leave. Employers that take such actions will be in violation of the Fair Labor Standards Act.

But Van Kampen noted that the statute's enforcement provision lays out a standard that such violations must be "willful" on the part of the employer — a high bar for workers to clear if they claim they were mistreated in violation of the statute.

"I can't think of any employment law statutes, federal or state, where a willfulness standard was applied to prove a violation," he said. "That's a standard you only see with punitive damages. I'm concerned that that law was passed to grab a headline, but when it comes to holding employers actually accountable for violating it, they gave us a really steep climb on what we need to prove."

Uptick in Worker Queries

Given the nuances and intricacies of the new requirements, Cochran said it's paramount for low-wage workers and individuals from racial minorities who have been disproportionately impacted by COVID-19 to receive accurate information about how their rights have been expanded "to ensure that people are able to advocate for themselves on the job."

And workers have increasingly made the effort to get up to speed, with Cochran noting that she's seen a significant uptick in people seeking information about how the new legal terrain affects them. 

"I've gotten a number of inquiries from workers who are not yet infected — and hopefully won't be infected — but are just anticipating something happening to them or someone in their families," she said. "People are being extremely proactive in trying to understand what their rights are in a way that I think is smart."

With new rules and guidance being issued so quickly, Cochran said the responsibility falls on worker-side lawyers to make sure all relevant information is being communicated.

"There's certainly a concern or at least a challenge in the speed at which all this is happening," she said. "Because we're in uncharted territory, it puts an extra onus on us as plaintiffs attorneys to ensure that we are getting information out to people."

--Editing by Aaron Pelc and Michael Watanabe.

This is the second of a two-part series looking at the new employment law landscape created by COVID-19. In part one, management-side attorneys discussed notable aspects of the FFCRA.

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