As happens during natural disasters, survivors may not report a sexual assault or seek services for a variety of reasons. They may feel that sexual assault is not "as important" in the current context. Because of the chaos associated with a public health crisis, survivors may not know how to seek services, if anything is open/available, where to go, or who to talk to. As already is common, shame or self-blame can be compounded, and think that they will not be believed, particularly since other emergencies are going on. In cases of child sexual abuse or intimate partner sexual assault, victims or their family members may be pressured by the abuser to stay together as a family in the wake of the disaster; the victim may also have mixed feelings toward the perpetrator and may depend upon him; or may be told to shelter in place or self-quarantine in a home that is not safe. And attempts to manage so many other survival issues may take precedence. Additional barriers may include availability of services, confusion of roles and processes, and privacy needs. 1
It is important to communicate with your community partners in order to know the best way to connect survivors with needed services, such as getting a forensic medical exam or reporting to law enforcement, during times when these systems may already be stretched to their limit. Advocates should also reassure survivors that they have the right to access these services.
Hospital Accompaniment / PREA Response
It is likely that the above internalized and externalized minimization of survivors' needs will impact forensic exams, access to medical care, and services.
Some hospitals are already limiting the amount of people who accompany someone to the hospital for any reason and, in some cases, banning all "visitors" which applies to advocates in most scenarios. Although CSAP contracts require hospital accompaniment be provided to people who have been sexual assaulted, we recognize that your community may be experiencing unique risk factors related to COVID-19. If you or your hospital partners are considering limiting the services / exams provided in your area, create a plan for pro-actively connecting with victims of sexual assault who receive services at hospitals or cannot and contact your grant manager at OCVA to discuss waiver-opportunities.
We encourage you to work directly with your hospital partners / PREA Coordinators to determine how to navigate this if it is currently happening. Even if operations are currently functioning normally, this conversation is crucial as plans for response will likely have to change to accommodate public health emerging priorities.
Survivors' access to an advocate is still their right although enforcing this could look different in the context of the current public health crisis. Work with your hospital / prison partners to figure out how to connect with survivors over the phone so their rights can still be respected. Create a sample script for the SANE/PREA Coordinator. Include how to offer immediate private phone contact and obtain a release of information for follow-up advocacy.
If advocates are still able to provide in-person accompaniment in your area:
Use your best judgement when determining if folks should provide accompaniment and in-person services and working with advocates to determine risk. If folks have colds, history of respiratory illnesses, compromised immune systems, or other health issues, they may not be the best candidate and will need to stay away from hospitals and prisons. It makes sense to take precautions.
It is very important to engage in recommended prevention!
- Cough or sneeze into your elbow or a tissue and then throw it away.
- Wash hands often with soap and water for at least 20 seconds.
- Use an alcohol-based hand sanitizer if soap and water are not available. Add hand sanitizer and disinfecting wipes to your hospital "go bag."
- Clean your cell phone often. Wipe down surfaces.
- Avoid touching your face.
- Wear a mask as long as it does not increase touching your face.
- If you are sick, stay home. (Advocates are truly the most dedicated and will work through any illness but this is so important right now!)
- Some recommend changing your clothes when you get home and washing the clothes you wore to the hospital immediately.
- Taking a shower when you return is also a good idea.
Each program will need to work with advocates to assess their remote workspaces and if confidential services can be provided. If, for example, an advocate's partner is also temporarily working from home, the advocate will need to ensure there is a soundproof room in which to provide phone services. These are, of course, case-by-case supervisory discussions.
Temporary file storage
If advocates need to work remotely for some time, they will likely need to bring client files home. Best practice would be to get a password lock document bag or locking clipboard for advocates working remotely so they can store files confidentially. Both items can be found on Amazon for $20-30. With electronic files, the program will want to set expectations and perhaps policy for advocates who will share a computer at home with partners, children, or others. The policy/supervision expectations should address signing in and out of databases, clearing history, etc. to protect confidentiality.
COVID-19, Immigrants, and Public Charge
On March 13, USCIS announced that testing, prevention, or treatment for COVID-19, also called Coronavirus, would NOT be used against immigrants in a public charge test. This means that immigrant families should seek the care they need during this difficult time. All of us have a role to play in keeping our communities healthy. This is especially true when our communities face a public health emergency like COVID-19. Immigrant families may be wondering which resources are available to them during this time. Below is some information about immigrants' rights in health care settings:
See the doctor if you need care. Your doctor is required to honor your right to privacy. You do not need to share any information about your immigration status unless you apply for Medicaid or other health coverage.
You can still see a doctor without medical insurance. This includes care you receive in the emergency room, at community and migrant health centers, free clinics, and public hospitals.
Hospitals and health care spaces are safe to visit. Federal guidelines prohibit immigration agents from conducting arrests or other enforcement actions at health care facilities, such as hospitals, doctors' offices, health clinics, and urgent care facilities.
If you feel your rights or the rights of someone you know have been violated, you can file an immigration enforcement civil rights complaint.
Sick Leave / HR Issues
Federal: New Requirements for Private Employers With Fewer than 500 Employees
On March 18, 2020, President Trump signed into law new legislation in response to the coronavirus disease 2019 ("COVID-19") pandemic. The law takes effect within 15 days of enactment, which is April 2, 2020.
The law is broad and addresses a variety of relief efforts related to coping with COVID-19. Among other broad-sweeping provisions, this law makes changes to the Family Medical Leave Act (FMLA), including mandatory emergency paid leave under certain circumstances, and by creating the Emergency Paid Sick Leave Act as a standalone provision. The following summary is compiled from the Labor and Employment Group of Bose McKinney & Evans LLP.
I. Emergency Family and Medical Leave Expansion Act
In what is being called the Emergency Family and Medical Leave Expansion Act, this new law temporarily expands amended provisions of the FMLA until December 31, 2020. This expansion makes several noteworthy alterations to the familiar FMLA scheme, broadly captured below:
Expands Emergency Coverage to Smaller Employers
The Emergency Family and Medical Leave Act applies to employers who employ "fewer than 500 employees" (adding coverage for smaller employers of 1 to 49 employees but excluding employers of more than 500 workers).
Changes Eligible Employees
The Emergency Family and Medical Leave Expansion Act changes the definition of "eligible employee" to apply to anyone employed at least 30 days (rather than 12 months per the regular FMLA rules).
Expands Covered Events to COVID-19 Related Causes
The Emergency Family and Medical Leave Expansion Act defines "qualifying need related to a public health emergency" to mean that the employee is unable to work (or telework) due to a need for leave to care for a son or daughter under 18 if the school or place of care has been closed or the child care provider is unavailable due to COVID-19. If the necessity for leave is foreseeable, an employee shall provide the employer with such notice of leave as is practicable.
Makes Leave Paid and Unpaid
The Emergency Family and Medical Leave Expansion Act:
- Allows the first 10 days of leave applicable under this expansion to be unpaid.
- An employee may elect to substitute any accrued paid leave for the unpaid leave provided in this expansion (an employer may NOT require an employee to make this substitution).
- Requires an employer to pay for each day of leave beyond the initial 10 days.
- The amount of this required pay may not be less than two-thirds of the employee's regular rate of pay under the FLSA, and
- The number of hours for this required pay must be in accordance with what would otherwise be normally scheduled for the employee, except that "in no event shall such paid leave exceed $200 per day and $10,000 in the aggregate. "
- If schedule variations make an employer unable to determine a normal number of hours for an employee, the employer shall:
- use an average number per day over the prior six months of employment, or
- use the reasonable expectation of the employee at the time of hiring of the average number of hours per day if the employee has not yet worked for six months.
Exempts Smaller Employers from the Requirement to Return Employees to the Same Position
The Emergency Family and Medical Leave Expansion Act:
Does NOT require employers with fewer than 25 employees to return an employee to their same position of employment after taking leave if:
- the position no longer exists due to economic conditions or operational changes caused by the COVID-19 emergency,
- the employer makes reasonable efforts to restore the employee to an equivalent position (benefits, pay, and other terms), and
- the employer makes reasonable efforts to contact the employee if such equivalent positions become available within one year from the earlier of the date when the qualifying need concludes or 12 weeks after the date on which the employee's leave commences.
Exempts Certain Employers from Employee-Filed Civil Litigation
The Emergency Family and Medical Leave Expansion Act exempts employers that do NOT satisfy the traditional definition provided by the FMLA (50 or more employees working each day in 20 or more calendar weeks in the current or preceding calendar year) but who are otherwise impacted by the new legislation from civil actions brought by employees for a violation of the Emergency Family and Medical Leave Expansion Act.
Permits the Exclusion of Health Care Providers and Emergency Responders
The Emergency Family and Medical Leave Expansion Act allows employers of health care providers and/or emergency responders to elect to exclude such employees from the application of the emergency changes affecting the definition changes of employer and eligible employee, the "qualifying need related to a public health emergency" provision, and the paid/unpaid leave provisions.
II. Emergency Paid Sick Leave Act
In what is being called the Emergency Paid Sick Leave Act, this section of the new law also lasts until December 31, 2020. It defines employers as and applies to:
- a private entity or individual who employs fewer than 500 employees;
- a public agency or entity that employs one or more employees;
- an entity employing a state employee;
- an employing office;
- an executive agency; or
- any successor in interest of an employer.
Reasons for Paid Leave
The Emergency Paid Sick Leave Act requires an employer to provide paid sick time to each employee employed by the employer to the extent the employee is unable to work (or telework) because:
- The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
- The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
- The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
- The employee is caring for an individual who is subject to a federal, state, or local quarantine or isolation order related to COVID-19 or who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
- The employee is caring for a son or daughter if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable due to COVID-19 precautions; or
- The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
An exception exists for the employers of health care providers and/or emergency responders, as such employers may elect to exclude such employees from the above requirements.
Amount of Paid Leave
For qualifying employees, the Emergency Paid Sick Leave Act entitles employees to paid sick time, as follows, and under the following conditions:
- Full-time employees - 80 hours;
- Part-time employees - a number of hours equal to the number of hours the employee works, on average, over a two-week period (use same six-month period or estimate if not applicable as stated in the Emergency Family and Medical Leave Expansion Act);
- An employee's required compensation shall be not less than the greater of:
- the employee's regular rate of pay,
- the federal minimum wage rate, or
- the minimum wage rate in affect in the applicable state or locality.
If such paid sick time is provided due to leave for care of an individual under quarantine, care of a child, or because employee is experiencing a substantially similar condition (rather than a government quarantine or isolation order, a health care provider order to self-quarantine, or because the employee is experiencing COVID-19 symptoms and seeking a medical diagnosis of the same, see above), then the employee's required compensation shall be two-thirds of the required amount calculated here.
In no event shall such paid sick time exceed $511 per day and $5,110 in the aggregate for leave because of these specific reasons: (1) a government quarantine or isolation order, (2) a health care provider order to self-quarantine, or (3) the employee is experiencing COVID-19 symptoms and seeking a medical diagnosis of the same.
In no event shall such paid sick time exceed $200 per day and $2,000 in the aggregate for leave because of these specified reasons: (4) to care for an individual under quarantine, (5) to care for a child, or (6) because employee is experiencing a substantially similar condition as set forth by the Secretary of HHS.
Conditions of Paid Leave
The following conditions of paid emergency leave also apply:
- Paid sick time under this section shall not carry over from one year to the next.
- Paid sick time under the Emergency Paid Sick Leave Act shall cease beginning with the employee's next scheduled work shift immediately following the termination of the need for paid sick leave time.
- Paid sick time under the Emergency Paid Sick Leave Act shall be available to employees in addition to any paid leave policies already in effect.
- Employers may not require employees to find replacement workers to cover hours.
- Paid sick time is available for immediate use by employees regardless of how long the employee has been employed by the employer.
- Employees may use the paid sick time provided under the Emergency Paid Sick Leave Act first (before any other accrued leave) and employers may NOT require the use of other paid leave first.
- Employers must post notice of these requirements (model notice to be provided).
- It is unlawful to discharge, discipline, or discriminate against an employee for using such leave or complaining / participating in a complaint.
- After the first workday or portion thereof that an employee receives paid sick time under this provision, employers may require the employee to follow reasonable notice procedures to continue receiving such paid sick time.