Qualifying for Paid Sick Leave Due to COVID-19 Under Texas Law

Many Texas workers are finding themselves having to take time off from work due to the coronavirus pandemic. They might be ill with the COVID-19 coronavirus. They could be caring for a relative at home with a mild form of the virus. In such a situation and after other exposure to COVID-19, they may be self-quarantining to avoid potentially spreading the disease.

These individuals and others are right to wonder whether they qualify for paid leave under Texas law if the pandemic forces them away from work for a short period, assuming their employer has not already assured them that they will be paid.

Unfortunately, the law is not always clear. A federal law meant to ensure paid leave connected to coronavirus absences from work was quickly limited by instructions from the U.S. Department of Labor. At the state level, Texas has traditionally been hostile to the idea of requiring employers to pay employees for time away from work.

Below, the Texas workplace injury lawyers of Herrman & Herrman answer some common questions about the possibility of obtaining paid sick leave during the coronavirus pandemic in Texas.

What type of paid leave does Texas law offer?

Under the Texas Payday Law, an employer is not required to offer employees fringe benefits such as paid sick leave, vacation pay, holiday pay or other pay for hours not worked. However, if the employer offers these benefits in writing, the employer is legally obligated to comply with their own policy or employment agreement.

Since 2018, three of Texas’s four largest cities — AustinDallas, and San Antonio — have passed local paid sick leave ordinances, according to the On Labor blog. However, only the Dallas law has gone into effect. Legal challenges have temporarily blocked the other ordinances.

On Labor says about 40% of Texas workers are unable to take paid sick leave from work. In the service industry in Texas, 78% of workers, from restaurant servers to home health care aides, lack paid sick days.

Does federal coronavirus legislation provide paid leave to deal with the virus?

Yes. The Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act were adopted as part of the Families First Coronavirus Response Act (FFCRA). On April 1, the U.S. Department of Labor (DOL) adopted a temporary rule to put emergency sick leave into effect through December 31, 2020.

The temporary rule:

  • Requires that certain employers provide up to 80 hours of paid sick leave to employees who need to take leave from work for certain specified reasons related to COVID-19. These reasons may include:
    • the employee or someone the employee is caring for is subject to a government quarantine order or has been advised by a health care provider to self-quarantine
    • the employee is experiencing COVID-19 symptoms and is seeking medical attention
    • the employee is caring for his or her son or daughter whose school or place of care is closed or whose childcare provider is unavailable for reasons related to COVID-19.

But, in further guidance, the DOL says, “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.” This is something the business owner can simply decide is the case.

Further, the FFCRA exempts businesses with more than 500 employees, which covers 54.4% of Texas businesses according to a 2018 federal profile of Texas small businesses.

Which workers qualify for emergency sick leave pay?

For paid sick leave under the FFCRA, you must have been employed by your current employer for at least 30 days. The law also covers part-time and self-employed / gig economy workers.

Which workers are excluded?

Employees of companies with more than 500 employees are not eligible (though such companies may have paid leave rules they would be obligated to honor). A company with fewer than 50 employees may choose to not pay for childcare leave under the FFCRA.

Health care providers and emergency responders may be excluded by their employers from being able to take paid sick leave under the FFCRA. The DOL suggests employers apply these exclusions judiciously. “For example, an employer may decide to exempt these employees from leave for caring for a family member but choose to provide them paid sick leave in the case of their own COVID-19 illness,” DOL says.

How much am I to be paid while on sick leave under the FFCRA?

For purposes of the FFCRA, the rate of pay used to calculate your paid leave is the average of your regular rate over a period of up to six months prior to the date on which you take leave. If you have not worked for your current employer for six months, the regular rate used to calculate your paid leave is the average of your regular rate of pay for each week you have worked for your current employer.

Part-time workers are to be paid according to the amount they typically earn in a two-week period.

The self-employed — assuming they pay taxes — should calculate their average daily self-employment income for the year, then claim the amount they take as a tax credit. Because they know the amount they are to be credited, they may reduce their estimated quarterly tax payments to account for it.

How will businesses and nonprofits afford to pay workers on leave?

The federal government has created a payroll tax credit for business and nonprofit organizations that pay wages to employees on emergency sick leave. The reimbursement will also cover the employer’s contribution to health insurance premiums during the leave.

What do I need to do to take emergency sick leave?

You should always notify your employer of an impending absence, including the reason for it and, if you know it, the length of time you will be out.

You are eligible for paid sick leave if a health care provider directs or advises you to stay home or otherwise quarantine yourself because the health care provider believes that you may have COVID-19 or are particularly vulnerable to COVID-19 and quarantining yourself based upon that advice prevents you from working (including teleworking).

If you become ill with COVID-19 symptoms, you may take paid sick leave under the FFCRA only to seek a medical diagnosis or if a health care provider otherwise advises you to self-quarantine. If you test positive for the virus associated with COVID-19 or are advised by a health care provider to self-quarantine, you may continue to take paid sick leave.

You may take paid sick leave under the FFCRA to care for an immediate family member or someone who regularly resides in your home. You may take paid sick leave to care for an individual who, as a result of being subject to a quarantine or isolation order, is unable to care for him or herself and depends on you for care and if providing care prevents you from working and from teleworking.

Is the government going to give workers additional aid?

The FFCRA – Families First Coronavirus Response Act – also included rules and payments to be applied to unemployment benefits (normally paid by state programs), free coronavirus testing and food and medical aid. As of this writing, the Democrat-controlled U.S. House was finalizing a new $2 trillion-plus proposal that was expected to include money for state and local governments strained by the pandemic and losing tax revenue, as well as more money for unemployment payments and coronavirus testing and contact tracing, among other provisions, according to ABC News.

However, “Senate Majority Leader Mitch McConnell, R-Ky., has dismissed Democrats’ efforts as dead-on-arrival in the Senate, and the White House has signaled resistance to moving forward with another round of coronavirus spending in the near term,” ABC News said.

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