Attorney Joe Turner discusses what small business owners need to consider.
I run a small clothing store in the Albuquerque area, and one of my long-time employees has called in sick. We do not know, but she might have Coronavirus based on their symptoms. They have scheduled an appointment to be tested. I was wondering what my next steps should be and what steps I need to take under Coronavirus restrictions to keep my business open (if possible) and ensure we are all staying safe. Also, since the shutdown, we were closed for a long period of time due to the restrictions. Because of this, we are trying to manage our expenses pretty closely. I want to be sure my employee gets the time they need to recover and get back to work, but I cannot continue paying them indefinitely if they need an extended leave of absence. What are my obligations in this respect?
A Socially Distanced Business Owner
Dear Socially Distanced,
During this pandemic, it is important that every small business is closely monitoring both the CDC guidelines (go to www.cdc.gov/coronavirus for the current CDC recommendations) and the Executive Orders being issued by the New Mexico Governor’s Office (these can be located on cv.nmhealth.org). Requirements surrounding COVID-19 are constantly in flux, and its important that you and your business remain up to date on any restrictions regarding customers and your employees.
By complying with these laws and recommendations, you are protecting yourself and your business from fines, liability, and are ensuring the health and safety of your workforce and customer-base. If you are unsure as to what the current restrictions are or are having difficulty understanding what policies you should be implementing to comply, now is a good time to reach out to a lawyer or human resources specialist to assist you in navigating these issues.
Regarding paid leave, there are several legal requirements you need to keep in mind when calculating how much you need to compensate employees when they are out of the office and not working. Due to COVID-19, the Families First Coronavirus Response Act (“FFCRA”) was implemented on March 18, 2020 and will remain in force through December 31, 2020. Under this law, you are generally required (presuming you have less than 500 employees) to provide for paid sick leave to employees who are (1) quarantined under Federal, State, or local law for COVID-19; (2) were directed to quarantine by their healthcare provider for COVID-19; (3) have COVID-19 symptoms and are attempting to be diagnosed; (4) are caring for someone who is required by law or was directed to stay home by a healthcare provider for COVID-19; (5) are taking care of their children due to schools and/or child-care facilities being closed due to COVID-19; or (6) are experiencing a substantially similar condition as provided by the U.S. Department of Health and Human Services. For each of the six (6) scenarios, you need to be able to provide for two weeks (80 hours) of sick leave. If your employee is also providing for of their children due to schools and/or child-care facilities being closed due to COVID-19, you may need to provide a total of ten (10) weeks of sick leave.
Assuming your employee is not caring for children who have had their schools shutdown due to COVID-19, you may need to provide up to two weeks paid leave while they determine if they have COVID-19, so long as they are actively pursuing that diagnosis. This leave would be in addition to the normally accrued Paid Time Off your employee accrues.
However, there is a limited exception you can apply for if your business has less than 50 employees. This small business exception only applies if your employee is seeking extended family leave to care for her children due to schools and care-giving facilities being closed. You can apply for this exception with the under one or more of the following conditions: (1) the cost of supporting your employee’s leave would create expenses greater than your businesses available revenues and would shut you down; (2) the employee has unique skills or responsibilities and having them out of the office would create substantial risk for your business operations; or (3) there aren’t enough other qualified workers to perform that employee’s duties, which would prevent your business from operating. An attorney can help you navigate how the FFCRA applies to you, and whether you can apply for an exemption in order to keep your business afloat during this difficult time.
Hang in there,