With so many members of the campus community carrying concerns about the plans to have face-to-face classes in the fall, we invited Lauren Hoye and Ryan Hancock, attorneys at Willig, Williams and Davidson, the law firm that represents TAUP to a recent town hall.  They each made a brief presentation that clarified our rights under the Americans with Disabilities Act (ADA) and the Families First Coronavirus Response Act (FFCRA), and then answered questions from members at the event. 

Below is an edited transcript of their presentations.  Questions and answers that were given at the town hall will be added to the COVID page of our site.

LH: Thank you all so much for inviting us to participate on your town hall here today. We would like to use most of our time here today to answer questions that you all have about what’s going on at Temple, the plan to reopen, what guidance you may need related to the ADA, related to the FMLA and also related to the Families First Coronavirus Response Act, which we refer to as FFCRA.

Ryan and I are going to give you a very brief overview of those three particular statutes and what they basically say, what they basically provide for and what protections you have under each of them, and then we’ll open up the floor to questions.

So I’m going to talk about the FFCRA and then Ryan is going to talk about the ADA and the FMLA. Many of you are probably already somewhat familiar with the FFCRA, this is the first federal statute that passed after COVID that essentially allows for paid sick leave amounting to two weeks, and the additional Emergency Family Leave for an additional 10 weeks of paid leave for the care of a child in the event that the child’s school or childcare provider or facility is closed.

With respect to Temple, the issue we’ve been having is whether FFCRA applies or not. It’s our position that it should. FFCRA applies to private employers with under 500 employees and to all public employers. So Temple has more than 500 employees, and if was considered a private employer, it would be exempt and it would not be required to provide the protections of FFCRA, including the two weeks of paid sick leave for COVID related illnesses or the Emergency Family Leave for the additional 10 weeks beyond that which you’d have for a total of 12.

If Temple is considered a public employer, then it would be covered under FFCRA, regardless of its size. And some of you may know, Temple is one of these institutions that is sometimes public and sometimes private. For example, it’s a public employer for purposes of labor relations in Pennsylvania. But it is not covered under the Pennsylvania Right to Know Law. It’s in a little bit of a gray area, a little bit of a no man’s land.

Steve has been very persistent over the past several weeks in trying to get a straight answer from Temple about the position that they are taking about whether they are or are not covered by FFCRA and has not been able to get a straight answer from them. I’m not sure they even know. So I’ll tell you briefly about the FFCRA, though I want you to be aware that there is this unresolved issue of whether they are a covered employer or not.

So briefly, you could be eligible for FFCRA and could collect two weeks of paid leave if you are

1) subject to a federal state or local quarantine or isolation order related to COVID-19

2) advised by a health care provider to self-quarantine due to COVID-related concerns, or

3) experiencing symptoms of COVID or are in process of seeking a medical diagnosis.

4) caring for an individual who is subject to a government isolation order or has been advised to self-quarantine.

5) caring for a child whose school or place of care is closed due to COVID-19 and other conditions specified by the Secretary of Health and Human Services,

None of those conditions have actually been specified in any regulations. So it’s two weeks at your daily rate of pay capped at $511 a day. The second part of the FFCRA legislation is the Emergency Family Medical Leave Act. This is paid leave for an additional 10 weeks for a total of 12 weeks that eligible employees can take in the event that their child’s school or place of care is closed. And again, there is a rate on a cap on that of $200 a day for the Emergency Family Medical Leave Act.

Those are two things that bargaining unit members could potentially take advantage of, if we can get Temple to take a position that it is covered by FFCRA. As I’ve said, Steve and our firm have been working on getting them to clarify where they stand on this. Because certainly if they’re going to take the position that they’re covered, then they would be required to provide these things. The other thing is that though they may not have to provide this stuff doesn’t mean that they couldn’t just decide to provide it. It’s not like they are prohibited from providing it. If they are exempt, it just means they don’t legally have to.

I’m going to turn things over to Ryan, who’s going to give you an overview on the ADA and an overview of the Family Medical Leave Act.

 

RH:  Thank you, Lauren. Maybe you can answer the question about the FFCRA: If they choose to follow it, even if they are not, you know, public versus private, do they still get the tax benefits?

LH:  Right, so employee employees that comply with FFCRA can apply for the tax credits. So there is a financial advantage to them if they decide to do it.

RH: Thanks. So my name is Ryan. I am a civil rights lawyer based at Willig, Williams and Davidson and before that I was assistant chief counsel with the state civil rights agency where I prosecuted claims of unlawful discrimination based on race, sex age, etc., for about 14 years where I was the Chief Appellate lawyer there.

So when I talk about the Americans with Disability Act, I want it to be known that we’re also talking about the Pennsylvania Human Relations Act, as well as the municipal law here called the Philadelphia Fair Practices Ordinance because all of those apply. Now they’re very similar, but they do differentiate in some ways, but that’s a little bit more granulated that we need to get into today.

So the Americans with Disability Act basically says that an employer cannot discriminate against you with the terms and conditions of your employment based upon a disability. Now, I think it’s important to remind everyone that prior to 2009, when the ADA was amended, case law had determined that you had to prove this extremely high disability standard, like what did a disability mean? That was where the courts focused their analysis. And you were getting insane decisions about things like, what is a disability and what’s not for reasonable accommodation purposes? And Congress finally said, no, no, no, no, wait a minute: we shouldn’t be focusing on whether a person actually has a disability, it’s whether the employer can actually provide a reasonable accommodation so they can continue to work in the workplace.

So under the ADA, your employer must provide you a reasonable accommodation, unless it is an undue hardship. And I think that’s the analysis that we’re going to be dealing with with regard to these back to work issues. And really, in regard to the employer and what a reasonable accommodation is, you don’t have to specify or say “I want a reasonable accommodation”, you can say “I need help with my job, and this is how I need help”. And it could be a myriad of different things.

One practice point, the employer does not have to do or comply with your specific request for an accommodation. The law just requires the employer to reasonably accommodate you to perform the essential functions of the job. So in other words, oftentimes, there could be three or four ways in which an employer could provide you a reasonable accommodation to do that. Sometimes there’s only one accommodation. So that’s generally what we’re looking at.

Undue hardship, by the way is a high standard under the law, even though employers often want to use that as a way to get out of the reasonable accommodation, I will tell you that the law and the spirit of the law at this point ― specifically after the amendments in 2009, is to is to make sure that the employer provides that reasonable accommodation. So that’s a brief overview of the ADA and reasonable accommodations.

Now, I’m actually not going to get into the FMLA that much, and that’s because if you do have someone with some kind of underlying medical condition, you do have a right to use your FMLA whether or not the FCCRA applies. A more interesting question is one that hasn’t been litigated yet, but I want to bring it to your attention. I think that could be an argument under the FMLA, if you get COVID or if you’re at a high risk to get COVID, and you live with someone, you’re a caretaker for someone who is high risk also, I think that there could be a potential there. But that is a big…that should be a last resort because it is untested under the law. And I’ve had employers go both ways. Some employers say yes to it. Some employers say “no, it has nothing to do the FMLA has to do with your underlying medical condition, not the fear of someone else’s”, but it is another arrow that we shouldn’t be afraid to use as a last resort.