COVID-19: Frequently Asked Questions

Below are some of the most frequently asked questions CMA has received during the COVID-19 outbreak. By default, the most recent answers will appear up top. You can also filter the FAQ by category. We will update this resource regularly.

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How should an employer address in-person work requirements issues with employees impacted by remote schooling and/or childcare unavailability?

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Employees with a qualifying childcare need have a right to take emergency sick leave or emergency family and medical leave under the Families First Coronavirus Recovery Act (FFCRA). Recent guidance from the U.S. Department of Labor clarified that a school is considered “closed” for purposes of FFCRA eligibility even if the student still receives some or all instruction in a virtual format. Thus, employees may have a right to take leave to care for their children if they are attending school remotely or if they have other childcare needs.

Physician employers should keep in mind, however, that the FFRCA does allow employers to exclude health care providers and emergency responders from its provisions. If an employee takes leave under the FFCRA, which must be paid by the employer, the employer is eligible for a refundable tax credit to reimburse them for the cost of providing wages during the leave period. Similarly, the CARES Act offers tax credits to eligible employers whose businesses have been impacted by COVID-19 but elect to retain and pay their employees. CMA’s COVID-19 Toolkit for Physician Employers and COVID-19 Financial Toolkit for Physician Employers contain further information on employer tax credits available under these federal programs.

In addition to federal programs, there are also numerous state and local resources that may provide employers with access to capital to help employees retain workers, particularly for small practices. CMA’s COVID-19 Toolkit for Physician Employers contains information on resources through the California Employment Development Department (EDD), and employers may find a thorough listing of available access to capital resources here.

Employers may choose to provide unpaid personal leave to their workforce, although they are not legally required to do so. If an employer elects to provide unpaid leave, they should document the requirements or restrictions in their employment policy and apply it consistently across the workforce to avoid allegations of discrimination. Employers may also wish to allow employees facing childcare issues to voluntarily go on furlough or temporarily work a reduced schedule. These employees may be eligible to receive unemployment benefits while on leave or working fewer hours to care for their children. Visit CMA’s COVID-19 Toolkit for Physician Employers and the EDD’s COVID-19 website for more information.

In the event an employer is simply unable to retain an employee who cannot meet workplace demands due to childcare needs, the employer should be aware of their legal obligations to the employee prior to letting them go. First, if the employee to be laid off is currently on leave, the employer must be careful not to violate any employment restoration provisions under state and federal law. While employees are generally not protected from employment actions (such as layoffs or furloughs) that would have affected them had the employee not taken leave, employers are prohibited from firing, disciplining or otherwise discriminating against an employee because that employee has taken leave under the FFCRA. Additionally, employers of 25 or more employees must provide employees with up to 40 hours of leave per year for specific school-related emergencies, such as the closure of a child's school or day care by civil authorities and are prohibited from discharging or discriminating against employees for taking leave. (Labor Code section 230.8).

Finally, there are some proactive steps that employers can take to address the impact of lack of school and childcare on their workforce. Employers can create workforce policies that address remote schooling and childcare issues in light of current circumstances, can engage in active dialogue with their employees about reasonable workforce accommodations, and can communicate clear expectations with respect to availability and absences. For specific advice about how the law applies to a particular employee or employment situations, physician employers should contact an attorney experienced in employment law.

| Categories: Labor and Personnel | Return

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