WORKERS’ GUIDE TO COVID-19
The outbreak of the novel coronavirus, or COVID-19, continues to create unforeseen employment issues for millions of Americans. Given the economic uncertainty created by the pandemic, Faruqi & Faruqi, LLP has prepared this guide to ensure that workers are informed of their rights.
1. Can my employer force me to report to work in person?
Whether employees must report to work in person depends on the nature of their employer’s business – specifically, whether it is considered “essential.” As of March 22, 2020, New York State Governor Andrew Cuomo has directed all non-essential workers to work from home. Guidance on whether your employer’s business is considered essential can be found here: https://esd.ny.gov/guidance-executive-order-2026.
Workers outside of New York State should seek out information published by local authorities, as state and local governments across the country have issued similar mandates. It is important to remember that guidance and directives will continue to change as the situation evolves. Workers should stay up to date on the most current information, including by checking this guide periodically for updates.
2. Can I take time off of work if I contract COVID-19?
Under the Family and Medical Leave Act (“FMLA”), employees are entitled to take up to 12 weeks of unpaid leave per year for a serious medical condition, regardless of where they live within the United States, if:
(1) You have been employed at your current job for at least one year;
(2) You have worked at least 1,250 hours over the course of the past 12 months;
(3) and Your employer employs at least 50 individuals within a 75-mile radius.
The recently passed Families First Coronavirus Response Act (“FFCRA”), applies to all employers who have fewer than 500 employees. The FFCRA expands the FMLA’s coverage to include employees who have worked at their current jobs for 30 calendar days or more. The first two weeks of FMLA will remain unpaid – but employees can substitute this unpaid period with the new federal Emergency Paid Sick Leave benefits (further described below) or other State-specific leave benefits. After the first two weeks, the remaining 10 weeks of FMLA leave are paid at two-thirds of an employees' regular pay, capped at $200 per day and $10,000 total. This expansion of the FMLA expires on December 31, 2020.
Moreover, the FMLA prohibits employers from interfering with employees’ rights thereunder, such as by denying them leave if they are eligible or terminating their employment during their leave. It also prohibits employers from retaliating against employees for exercising their FMLA rights, such as by terminating their employment for requesting FMLA leave.
As described below, employees may also be entitled paid leave under other federal, state, or local laws.
3. Is my employer required to provide me with paid time off?
As part of the FFCRA, the federal government has also established paid sick leave under a subsidiary law called the Emergency Paid Sick Leave Act (“EPSLA”). EPSLA is designed to provide relief for sicknesses specifically related to COVID-19; therefore, it expires on December 31, 2020. It applies to all public employers, as well as all private employers that have fewer than 500 employees, and provides for up to 80 hours of paid sick leave, capped at anywhere from $2,000 to $5,110, depending on the particular employee’s reason for requesting leave. Employees may request leave if they are unable to work either in person or remotely and:
(1) Are subject to a federal, state or local quarantine or isolation order related to COVID-19;
(2) Have been advised by a health care provider to self-quarantine due to COVID-19 concerns;
(3) Are experiencing symptoms of COVID-19 and seeking medical diagnosis;
(4) Are caring for an individual subject to a quarantine or isolation order or who has been advised to self-quarantine;
(5) Are caring for a child whose school or place of care has been closed or their child care provider is unavailable due to COVID-19 precautions; or
(6) Are experiencing any other substantially similar condition to COVID-19 specified by Health and Human Services in consultation with the Department of Treasury and Department of Labor.
Employees can recover wages stemming from Sections 4 through 6 under the EPSLA during the initial two-week unpaid period contemplated by the new FMLA portion of FFCRA (described above).
EPSLA also prohibits employers from discriminating or retaliating against employees who exercise their newly vested rights to paid sick leave. Additionally, the rights afforded under EPSLA are cumulative and do not impact employees’ existing rights to leave. In other words, EPSLA leave must be provided in addition to that provided under other laws or employer policies.
Employees should also be aware that EPSLA does not apply to business closures, which are addressed below.
Further, many states, such as New York, provide for sick leave whether due to COVID-19 or another reason. Indeed, on March 18, 2020, Governor Cuomo signed into law the Paid Quarantine Leave Law that provides for sick leave to employees subjected to mandatory or precautionary quarantine or isolation. The number of sick leave days and whether they are paid or unpaid depends on the number of employees each employer has as well as several other factors. Details of the new Paid Quarantine Leave Law can be found here: https://paidfamilyleave.ny.gov/covid19.
4. Can I be fired for contracting COVID-19?
The vast majority of employees in the United States are considered to be “at will,” meaning that they can be fired any non-discriminatory, non-retaliatory reason. Employees who contract COVID-19 and are unable to work remotely – whether due to the nature of their job or their physical condition – should avail themselves of all medical and sick leave discussed in this guide.
Still, employees may be fired as a result of a company going out of business or closing one of its offices or branches. Unfortunately, such closings have become increasingly common as COVID-19 continues to spread. In the event a business with 100 or more employees closes a branch or office with at least 50 employees, those employees may be entitled to 60 days’ advance written notice under the federal Worker Adjustment and Retraining Notification Act, or WARN Act. Further, some states have passed similar laws that provide even broader protections. For example, in New York, an employer with 50 or more full-time employees must give 90 days’ advanced notice of mass layoffs or worksite closures impacting 25 or more employees.
5. Can my employer reduce my hours even if I do not have COVID-19?
As a general matter, employers may reduce their employees’ hours at their discretion. This right has not been impacted by COVID-19. However, employers still may not reduce employees’ hours for discriminatory or retaliatory reasons. For example, if an employee exercises his or her right to paid sick leave, the employer may not use this to justify reducing the employee’s hours when he or she returns.
Employees whose hours have been reduced due to COVID-19 should consider applying for unemployment insurance benefits. While benefits vary state-by-state, some states provide benefits based on reduced hours even though the employee still has a job. Further, many states that previously did not provide for such benefits have begun to do so to provide relief for workers during the pandemic.
New York employees can find information regarding receiving benefits based on reduced hours here: https://labor.ny.gov/ui/claimantinfo/sharedworkclmtfaq.shtm.
6. Can I work from home even if I do not believe I have COVID-19?
As noted above, many states have already restricted employees from reporting to work in person, unless they work for an essential business. If your state has not yet issued such a restriction or you work for an essential business, you may still be required to report to work in person. That said, employees with disabilities that compromise their immune systems may be entitled to work from home as a reasonable accommodation, so long as they can still perform their job duties and working from home will not cause an undue hardship to the employer. Employees with autoimmune deficiencies that put them at greater risk should contact their employers to request a reasonable accommodation as soon as possible.
The U.S. Equal Employment Opportunity Commission has also issued guidance on the rights of employees with disabilities amid the COVID-19 pandemic, which can be found here:
7. Is my employer required to pay me to work from home?
Yes. Salaried and hourly employees who work from home are entitled to be paid their regular weekly pay or for all hours worked, including overtime. Your employer may not use COVID-19 as an excuse to withhold your wages or pay you later than your regularly scheduled payday.
8. Can my employer treat me differently because my race, national origin, or other actual or perceived association with a country suffering from a significant COVID-19 outbreak?
Unfortunately, the spread of the coronavirus has resulted in a higher incidence of reported workplace discrimination and harassment based on race, ethnicity, or national origin. Under federal law and the laws of most states, it is illegal for employers to discriminate against employees on the basis of their race, ethnicity, or national origin, as these (and others) are considered protected characteristics. Discrimination may not always be easy to identify – some examples include derogatory comments, jokes, slurs, poor work performance reviews, demotions, and terminations. Employees who are presumed by their employers to carry COVID-19 based on their race, ethnicity, or national origin are likely being subjected to discrimination.
If you think you have been treated unfairly at work, please contact an attorney who can help you understand your rights.
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Faruqi & Faruqi is committed to serving its clients. We will continue to actively monitor this situation and will update you on all developments.
This guide was prepared by: Innessa M. Huot, Alex J. Hartzband, Patrick J. Collopy, and Camilo Burr from the Firm’s Employment Law Group and Employee Rights Counsel.
If you have any questions about the developing situation, please email us at: Contact@FaruqiLaw.com or call us at: 212-983-9330.
Please stay safe and continue to monitor this page for more updates.