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Returning to Work in a Pandemic: What Employees Need to Know

Ready or not, many states in the country, including Texas, are easing local coronavirus-related quarantines and isolation orders. As a result, many Texas employers are beginning to reopen and recall their employees to work. Although many of those employees are eager to get back to work, they also have legitimate concerns about their safety.

I recently gave an interview for a news article about some of the options returning employees have to ensure their safety, including paid sick leave. Unfortunately, the state of the law on this subject is about as clear as mud, so I decided to see if I can help clear it up.

First, the bad news: as of the date of this article, an employee’s general fear of contracting the coronavirus if they return to work is not enough, alone, to trigger any legal protections. Unless employees meet specific criteria that I will discuss in detail below, they don’t have a legal right to refuse to return.

Now, that doesn’t mean that the law compels an employee to return; in Texas, unless there is an employment contract for a definite period, employees are usually free to quit their job at any time and for any reason. But, if an employee refuses to return to work because they are concerned about catching COVID-19 and are terminated as a result, they may have a much harder time qualifying for and receiving unemployment benefits in Texas.

As I mentioned above, however, there are some important exceptions to this general rule. Congress recently passed the Families First Coronavirus Response Act (FFCRA), which contains two separate paid sick leave ordinances that are in effect from April 2, 2020 until at least the end of the year. Importantly, both of these paid sick leave programs apply to employers with less than 500 employees. That means it won’t apply to large employers like Walmart, Amazon, Nordstrom, or other big companies.

In this post, I will take a look at one of the paid sick leave plans and in an upcoming post, I’ll tackle the other program.

Program 1: Emergency Paid Sick Leave Act (EPSLA)

This paid leave program is called the Emergency Paid Sick Leave Act, or EPSLA. The EPSLA provides 2 weeks of paid sick leave for full-time employees and part-time employees, regardless of how long they’ve worked for the company, who are unable to return to work (meaning they also cannot or are not permitted to work remotely or telework) for one of the following reasons:

  1. They are subject to a government order to isolate or quarantine for reasons related to COVID-19;

  2. They have been advised by a healthcare provider to self-quarantine for reasons related to COVID-19;

  3. They are experiencing COVID-19 symptoms and are seeking a medical diagnosis;

  4. They are caring for an individual subject to a government or healthcare provider’s order to isolate or self-quarantine;

  5. They are caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19; or

  6. They are experiencing any other “substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.”

Reason number 2 will be of particular use to employees with other health conditions that make them particularly vulnerable to COVID-19. According to guidance from the federal Department of Labor (DOL), if an employee can’t work because they are quarantining themselves on the advice of a doctor due to the employee being particularly vulnerable to COVID-19, those employees are eligible for paid sick leave under reason 2. Note, however, that the employee will need a healthcare provider to actually make this recommendation - even an employee with an existing health condition such as diabetes or a suppressed immune system cannot declare themselves eligible.

Reason 4 should be useful to employees who cannot return to work because they are caring for a loved one or family member who is subject to a quarantine or isolation order. According to the DOL, this includes those who are staying home to take care of a loved one who is advised to self-quarantine by a healthcare provider because they are particularly vulnerable to COVID-19.

But, keep in mind that this reason doesn’t apply just because someone the employee knows is quarantining or in isolation and the employee. The employee’s relationship to the person must be an immediate family member, someone who regularly resides in the employee’s home, or be the kind of relationship which creates an expectation that the employee will care for the person in a quarantine or self-quarantine situation. Furthermore, that individual must be actually unable to care for him or herself and actually depend on the employee for care during the quarantine or self-quarantine. In other words, employees can’t use this paid sick leave to take care of a stranger, a distant relative, or someone who doesn’t genuinely need the employee’s help.

One more important note: the reason the employee is taking leave will determine how much pay they receive. If they are taking leave for reasons 1-3, they will be paid their regular rate of pay for up to 80 hours or two weeks. However, there is also a cap on how much paid sick leave the employee can get, which is no more than $511 per day or $5,110 in aggregate over the two week period. Employees taking leave for reason number 4 or 6 will receive two-thirds of their regular rate of pay, which is capped at up to $200 per day and $2,000 in the aggregate over two weeks.

Those who take leave for reason number 5 are also covered by the second paid sick leave ordinance, which I will address in the next blog post. For now, know that those employees are entitled to two-thirds of their regular rate of pay with a cap of $200 per day or $10,000 in aggregate over 12 weeks. I’ll explain more about that in my next post on this topic. In the meantime, wash your hands, wear a mask, and stay safe.

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