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MAKING SENSE OF THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA)

MAKING SENSE OF THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA)

Effective April 1, 2020 and continuing through December 31, 2020, the Families First Coronavirus Response Act (“FFCRA”) will require certain employers to provide their employees with paid sick leave and/or expanded Family Medical Leave for reasons related to COVID-19.

There are essentially 2 parts to the Act. Part 1 is an emergency expansion of the Family Medical Leave Act (“FMLA”). Part 2 requires certain employers to provide Federal Paid Sick Leave.

The Act applies to all employers with fewer than 500 employees. This includes both full and part-time employees. This number also includes dual employees, such as those provided by professional employment organizations (PEO’s) also known as staffing agencies. There may be exceptions for “extreme financial hardship,” but the Department of Labor has not yet produced any guidance for what that means.

The Act also provides for a “Distressed Small Business Exception,” which only applies to employers with 50 or less employees. Again, because this law is so new, there is little to no guidance from the Department of Labor as to who will qualify for this exception.

So, what does the FFCRA require employers to do?

Generally, all employers must provide their qualifying employees with:

  • Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined either (1) pursuant to Federal, State, or local government order or advice of a health care provider, and/or (2) is experiencing COVID-19 symptoms and seeking a medical diagnosis; or
  • Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor.

FAQ’s about the FFCRA:

How does an employee qualify for these FFCRA benefits?

Some examples include:

  • Being diagnosed with the COVID-19 virus.
  • Having symptoms of the virus.
  • Being required to be in self-quarantine.
  • Being ordered by your doctor to self-quarantine.
  • Having to care for a spouse or child who is infected with the virus.
  • Another common example will be caring for a child whose school or daycare has been closed because of COVID-19 – Or having substantially similar condition based on guidance from the Secretary of Health and Human Services.

Can both parents claim paid leave under the FFCRA?

There is nothing in the law that suggests that both parents would not be entitled to paid leave if they otherwise qualify for the benefits.

Can my employer require me to use paid sick leave before paying benefits under the FFCRA?

It depends. The expanded benefits to FMLA do not kick in for the first 10 days, therefore you may be required to use unpaid sick leave to cover that gap. The mandatory sick leave would not require you to use accrued unpaid leave.

How much pay am I entitled to receive?

It depends on whether you are seeking the expanded benefits of the FMLA, or the mandatory paid sick leave. Normally, a qualifying employee is entitled to 12 weeks of unpaid leave under the FMLA. The new law expands that to include paid leave of two-thirds of base pay based on number of hours normally worked. The maximum is $200 per day, or $10,000 per employee, based on 12 weeks of eligibility.

The mandatory paid sick leave under the FFCRA is capped at $511 per day, with a total benefit of $5,110 per employee.

How are employers expected to pay for these FFCRA benefits?

The government has rolled out several plans to help small business employers pay for these new benefits. One option is a dollar for dollar tax credit for payments made. A second option is a small business loan through the Small Business Administration (SBA) to cover payroll costs. If certain conditions are met, and all of your employees remain on the payroll for a specified period, these loans will be forgiven (they don’t have to be paid back). Lastly, some employers may have business interruption insurance that could be applicable. Definitely check your policy to determine coverage.

Can my employer disclose my diagnosis of COVID-19?

Yes, under certain circumstances, there are exceptions to HIPPAA’s confidentiality requirements. For example, an employer can disclose such a diagnosis for the safety of your co-workers.

What if I contracted COVID-19 at work, will workers’ compensation cover my treatment?

There is much we don’t know about how the new laws will be interpreted, and whether a diagnosis of COVID-19 could be considered an occupational disease. Certainly, for those on the front lines fighting this disease, for instance health care workers, an argument could be made that it is a risk of the job.

If I have to provide these FFCRA benefits, my business will be forced to shut down. Are there any exceptions?

Yes. Small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or child care unavailability if the leave requirements would jeopardize the viability of the business as a going concern.

If I have to take leave, can I get my job back when I return?

Yes. The new law requires employers with 25 or more employees to reinstatement after 12 weeks. If your employer has less than 25 employees they must “make reasonable effort” to reinstate an employee who has taken leave under the Act.

In these uncertain times, it is always best to know your rights. If you have questions about Coronavirus/COVID-19, and your entitlement to benefits under the new laws, please contact us for a free legal consultation. We are not currently taking in-person interviews in our efforts to avoid unnecessary spread of the virus, but we are always available for telephonic consultations.

House Bill 1070 – Distracted Driving

House Bill 1070 – Distracted Driving

We have all seen it, and perhaps even done it ourselves. Driving down the road with a cell phone in our hand. Indiana House Bill 1070 “Distracted Driving,”(read here) passed the House by a vote of 86-10 last week and has been referred to the Indiana Senate. This bill will make it illegal to have a cell phone or other “mobile device” in one’s hand while operating a motor vehicle in Indiana. It modifies the existing law which prohibits texting while driving to include all uses of a mobile device that are not hands free or voice activated. The current law which makes it “unlawful to type, transmit, or read e-mail or text messages on a communication device while driving in Indiana,” has been in effect since July 1, 2011, but has been ineffective in curbing the behavior. This is due primarily, because the existing law as written, is difficult to enforce. This new law could go a long way to prevent distracted driving, and potentially save lives, because it will allow officers to write tickets simply by seeing a person operating a vehicle with a device in their hand, and there will be no requirement that they prove that the operator was actually using the device.

The Indiana Department of Labor defines distracted driving as, “any non-driving activity a motorist engages in that has the potential to distract him or her from the primary task of driving. Stressful jobs, busy lifestyles and technology are just a few reasons why individuals may engage in distracted driving activities.” https://www.in.gov/dol/2873.htm

There Are Three Primary Types of Distracted Driving:

  • Cognitive distraction takes your mind off the road.
  • Visual distraction takes your eyes off the road.
  • Manual distraction takes your hands off the wheel.

Texting, or otherwise using a device to search the internet, change a song, look up a contact, or like a Facebook post can be extremely dangerous because it involves all three types of distraction. Your mind is not focused on the road because you are concentrating on your device. Your eyes are also taken away from the road, as are your hands. As we all know, it only takes a second of distraction to cause a crash.

The U.S. Department of Transportation reports that in 2012, 3,328 people died in crashes linked to driver distraction, and more than 421,000 more people suffered a distracted driving-related injury. In fact, 17 percent of all crashes resulting in an injury involved driver distraction. More recent statistics indicate nine people are killed and more than 1,000 injured daily in accidents in which at least one driver was distracted.

  • Nearly 4,000 people were killed in crashes involving distracted drivers in 2015.
  • Distracted driving was the reported cause of death of 3,450 people in 2016.
  • An estimated 391,000 drivers were injured in distracted driving crashes in 2017.
  • For comparison, there were 39,773 gun deaths in the United States in 2017.
  • In 2019, distracted driving was a reported factor in 8.5% of fatal motor vehicle crashes. https://www.thezebra.com/distracted-driving-statistics/

If you support this Bill we would encourage you to contact your State Senator and request that they vote in favor of HB 1070, click here.

If you or a loved one have been injured or killed by a distracted driver, it is important to know your rights, and to preserve important evidence to support your claim. Call us for a free consultation.

What happens after I file a Charge with the EEOC?

What happens after I file a Charge with the EEOC?

Once the Charge is filed, it is sent to your employer, and they are given an opportunity to investigate the allegations and file a response. The employer may conduct the investigation internally, or, they may choose to hire an outside attorney to investigate the allegations in your Charge. The employer’s response is referred to as their “Position Statement.” Usually, the Position Statement filed by your employer will deny the allegations in your Charge, and may state other non-discriminatory reasons for any adverse employment action that has been taken against you. For example, the employer may state that you were a bad employee, that you missed too much work, or you did not follow instructions. If this is the case, the EEOC may ask you to provide additional evidence to support your claim of discrimination or harassment.

Once both sides have had an adequate opportunity to state their respective positions, the EEOC may move forward with an investigation.

WILL THE EEOC HELP ME SETTLE MY CASE?

If both sides agree, the EEOC may refer your case for a settlement conference, also called “mediation.” The EEOC has mediators on staff who will help both parties to resolve your dispute.
If both parties don’t agree to mediation, or if mediation is unsuccessful, the EEOC will move forward with an investigation into the allegations in your Charge of Discrimination. They can interview witnesses and request documents from either party to assist with that investigation.

HOW LONG DOES THE EEOC PROCESS TAKE?

Currently, an EEOC investigation can take up to 1 year. However, If the EEOC does not complete its’ investigation within 180 days after you filed your Charge, then you can request that they issue a Right to Sue letter. The Right to Sue letter allows you to file a lawsuit against your employer. It is very important to remember that you cannot file a lawsuit against your employer until you have received the Right to Sue letter from the EEOC.

Upon receipt of your Right to Sue Letter, you have 90 days in which to file a lawsuit against your employer. If you don’t file suit within 90 days, your claim will be barred.

What should I do if I feel I am the victim of harassment or discrimination?

The most important thing to do if you believe you are the victim of harassment or discrimination is to report it to your employer, preferably in writing. If you don’t report, your employer can always deny that they knew that any harassment or discrimination was occurring. Many employers have a handbook which should contain the company’s policies and procedures for reporting discrimination, harassment, or a hostile work environment. If you report harassment or discrimination, and your employer does not remedy the situation, please call me for a free consultation.

What Defines Unpaid Wages?

What Defines Unpaid Wages?

Generally speaking, an employer must pay its employees for the work that they perform. This is true whether you are paid hourly, salary, commissions, or by the piece, or any other method for determining the amount. In Indiana, these wages must be paid either twice a month (semi-monthly) or every two weeks (bi-weekly). Failure to pay wages earned can result in penalties for the employer up to two times the amount of unpaid wages, plus attorney’s fees.

In Indiana, if you are an hourly employee with an agreed upon wage, your employer is obligated to pay you for the hours you work within ten (10) days of the payment period end. For overtime, an Indiana employee is entitled to 1.5 times his or her hourly rate for any of the hours worked past a 40 hour work-week. If an employer does not make these payments, an individual may have what is known as a wage and hour claim.

Indiana has two statutes, the Wage Claims Statute, Indiana Code §22-2-9, and the Wage Payment Statute, Indiana Code §22-2-5. The Wage Claims Statute is for employees that have either been terminated or are in a labor organization dispute. Individuals with a claim under the Wage Claims Statute, that is in excess of $6,000 must get approval from the Indiana Department of Labor to file a private suit against their employer. For claims between $30 and $6,000, the Indiana Department of Labor will collect your wages free of charge. If you have a claim for unpaid wages that is less than $6,000 a claim can be made by filling out the IDOL’s Online Wage Claim Form: https://www.in.gov/dol/2671.htm

The Wage Payment Statute is for employees who have voluntarily left employment or are still currently employed.

Under both Indiana statutes, an employee is entitled to liquidated damages ranging from 10% to no more than double the amount of wages due and reasonable attorney’s fees. These damages are in addition to the wages owed. These statutes are designed to pay individuals what they are due. Immigration status does not matter, and it is illegal for an employer to use immigration status as a justification for not paying wages.

The Indiana Supreme Court reiterated the importance of Indiana’s Wage and Hour laws and their importance for all workers who depend on their paychecks to be paid regularly.

“I write separately to observe that the facts of this case dramatize the point that the statute confers on all employees the right to recover treble damages and attorney’s fees for failure to pay wages, regardless of the employees’ circumstances. This is perfectly understandable as applied to the vast majority of workers who are dependent on their paychecks for their day-to-day expenses. These employees need the money currently, not at the end of protracted litigation, and often do not have the economic staying power to engage in a court battle over relatively small amounts. A statute providing one party with treble damages and attorney’s fees is a very substantial deterrent to an employer’s playing fast and loose with wage obligations. As applied to claims of most workers this is very understandable legislative policy.”

St. Vincent Hosp. & Health Care Ctr., Inc. v. Steele, 766 N.E.2d 699, 706 (Ind. 2002).

If you have worked, but not been paid, please contact the employment attorneys at Goodin Abernathy, LLP to determine if you have a wage and hour claim. Your time and effort is valuable – talk to us to determine your options for recovering your hard earned wages.

Uninsured and Underinsured Motorist Coverage

Too often I see clients come in with serious injuries after they have been struck by a vehicle carrying no or very limited liability insurance.  The first question I ask is how much Uninsured or Underinsured Motorist coverage (UM/UIM) they have through their own insurance carrier.  More often than not, I receive a blank stare in response.

What is Uninsured/Underinsured Motorist Coverage?

Uninsured/Underinsured Motorist coverage is coverage you purchase to protect yourself from uninsured or under-insured drivers.  If you are seriously injured in a car accident or by a motor vehicle, the wrongdoer may not have enough insurance coverage to adequately compensate you for your injuries.  The law requires, unless you specifically waive it, that UM/UIM coverage be a part of your car insurance policy.  This is excellent protection against those in our society who do not play by the rules or who have little to no assets to protect.  The best part though?  It’s cheap coverage!  For just a few dollars a year you can increase your UM/UIM coverage to help protect yourself on the roadways.

So talk to your insurance agent about UM/UIM coverage and make sure you have enough coverage to protect you if you are injured by a driver without adequate insurance.  If you have an umbrella policy, make sure it includes UM/UIM coverage, as well.

If you have been injured by a motor vehicle and have been told the wrongdoer has little or no insurance coverage, call our Indianapolis injury attorneys today to set up a free consultation and discuss making a UM/UIM claim.

 

*Image courtesy of Naypong at FreeDigitalPhotos.net