By Fran Slusarz,
If you are as outraged as I am by the well-capitalized hospitality industry and publicly traded companies gobbling up Paycheck Protection Program (PPP) loans meant for small businesses desperate for a way to pay their employees, you know that yesterday was the deadline for those companies to return loan funds without risk of penalty. After all, each of the companies had to certify that the “[c]urrent economic uncertainty makes this loan request necessary to support [their] ongoing operations,” and chances are pretty good that many of these companies had cash reserves from which to draw.
Why does it matter? Because employers with fewer than 500 employees are obligated to provide up to two weeks of Emergency Paid Sick Leave to their employees and 10 weeks Enhanced Family and Medical Leave under the Families First Coronavirus Response Act.
Isn’t this obvious? Fewer than 500 employees is fewer than 500 employees? If PPP, then Paid Sick Leave and Enhanced FMLA. Simple, right? Wrong. The CARES Act had a special carve out for the hospitality industry. Instead of requiring fewer than 500 employees total, hospitality industry companies were eligible for PPP loans if they had fewer than 500 employees per location. This is how ShakeShack qualified. (ShakeShack, returned their PPP loan. Most did not.)
That seems unfair. If you take PPP funds because you are a small business, how can you claim you aren’t a small business when it comes to paying benefits to your employees?
How indeed. It is an unintended consequence of the Single Employer Doctrine. When you have two or more companies with interrelated day-to-day operations, common management, centralized HR functions, and common ownership, they can be treated as a single employer for some employment law purposes. Businesses with multiple locations often organize separate business entities for each location, but operate them as a single business.
Traditionally, employers worked to avoid being lumped together as a single employer with another entity because different employment laws kick in as the number of employees increase. But we’re in COVIDWorld now, and the single employer doctrine is flipped on its head: employers that want to avoid Emergency Paid Sick Leave and Enhanced FMLA will wish to aggregate themselves with as many related companies as they can to hit the magic number of 500 employees.
At this point, we have no way of knowing how courts will treat the Shrödinger’s paradox of having both fewer than and more than 500 employees at the same time, but courts tend to prefer consistency over illogical outcomes. As Maya Angelou said, “When someone shows you who they are, believe them the first time.” The companies who received PPP loans should expect the world to believe they have 500 employees, and should treat their employees accordingly.
Or not. I’ll find it entertaining to watch their lawyers argue both sides.
If you think you may be entitled to Emergency Paid Sick Leave or Enhanced FMLA leave but your employer says you aren’t, please give Carey & Associates, P.C. a call at 203-255-4150 or send an email to email@example.com.
A record 22 million people were laid off in one month since the coronavirus pandemic shut down large portions of the U.S. economy as of the week ending April 16, according to the Wall Street Journal. The estimated current employment rate is 13.5%. But were all those layoffs really due to the corona virus or did employers use the pandemic as cover to get rid of employees for other reasons, maybe unlawful reasons. This is the big question many unemployed Americans are now asking. Please review the following frequently asked questions and see which applies to you.
FAQ: Were you recently furloughed, laid off, demoted or terminated due to COVID, but your co-workers remain employed?
FAQ: Is your Employer still operating and profitable, yet you were laid off or had your compensation reduced due to a business decision to reduce costs or eliminate your job position?
FAQ: Were other younger employees retained, while you were furloughed, laid off, demoted or terminated?
FAQ: Were you laid off or terminated and not offered any severance or insufficient severance?
FAQ: Were your unemployment benefits interfered with?
FAQ: If you were unable to continue to work because you were sick, because a family member was sick or because you have young children at home, were you permitted to take FMLA leave or were you instantly laid off or terminated?
FAQ: Were you the only one furloughed, laid off, demoted or terminated or due to COVID, even though your Employer is calling it a “reduction in force”?
FAQ: Do you think your Employer was looking for an excuse to get rid of you?
If you answered yes to any of the above, your seemingly straightforward COVID-based termination may be unlawful. Unfortunately, the majority of Employees in the U.S. are “at-will”. This means that employees are at the absolute and arbitrary whim of their employers and they may be demoted, terminated or otherwise treated adversely for any reason or no reason at all. The exception to the anything goes rule of an at-will employment arrangement is that employees may NOT be treated unlawfully.
If you have recently suffered an adverse change in the terms and conditions of your employment amidst the COVID-19 crisis, you may still have viable claims against your employer for unlawful or wrongful treatment. COVID-19 is not and should not be a catch-all excuse or defense for employers’ bad behavior and even a crisis of this magnitude does not relieve employers of their obligation to treat employees lawfully at all times. If something does not feel right to you about the circumstances of your change in employment, it is prudent to speak to an employment attorney and review the fact pattern surrounding your work situation. It is in your best interest to discern whether your employer may be using COVID-19 as a sham or cover for otherwise unlawful behavior.
Unlawful or wrongful acts that may entitle an employee to monetary damages for claims against their employer will usually fit in one of three scenarios. Employers actions can be shown to be unlawful if they:
1) violate or fail to comply with any legislative mandate, act or
2) breach a valid contract or agreement; or
3) discriminate, harass or retaliate based on a protected class trait.
COVID-19 does not give employers a green light to violate laws, ignore contracts or discriminate against employees, and a termination under any one of those scenarios might be a wrongful one.
Scenario 1 – Statutory Violations:
Employers must abide by all existing laws and statutes, especially as they apply to the COVID-19 pandemic. It is the employers’ obligation to stay abreast of and comply with all new mandates imposed and legislation enacted in response to COVID-19, including, but not limited to enhanced FMLA, the CARES Act and the expansion to the Unemployment Compensation Act. This is in addition the existing laws that have long protected employees from discrimination and retaliation such as Pregnancy, Sex Harassment, Sexual Stereotype, Disability, Age, Whistle Blowing and Family Medical Leave, to name just a few. Thus, any analysis of whether your termination was lawful and proper should begin with a review of the facts relative to the controlling law and any revisions and updates to those laws. If you identify any facts in the events leading up to your termination that just do not seem right, you may have uncovered the hidden basis for your termination. For example, you got a good review last fall and received a bonus in January, but in March you were terminated without explanation. The small window between the January bonus and March termination should be closely examined for any facts supporting bogus performance issues, favorable treatment given to other employees and not you and replacement by coworker who is substantially younger and lesser qualified. The examples are endless, but you get the gist. See further discussion below.
Scenario 2 – Breach of Contract:
Even an at-will employment arrangement must be considered in light of any existing employment contracts or agreements between the employer and employee. In addition to or in the absence of a formal written employment contract, Courts may look to such documents as offer letters, on-boarding communications, employee handbooks, published severance plans and emails in order to demonstrate the existence of any enforceable covenants between the parties that may speak to such topics as causes for termination, compensation, bonus, healthcare, long term incentive compensation and severance. Thus, where a valid contract can be established as to any of your employment terms, your employer is bound by those terms and any deviation may be an unlawful breach for which you might be able to seek and recover damages. So, if you have been terminated or otherwise caused to separate from your employer, even if you are at-will and even amidst the COVID-19 crisis, it is imperative that you review all of your documents in order to discern that you are being treated lawfully according to the terms that were agreed upon and promised to you.
Scenario 3 (THIS IS THE BIGGIE) – Discrimination Claims:
Even if you are an at-will employee who was let go as a result of COVID-19, you may still have a claim for wrongful termination against your employer if their decision to let you go was at all based on discriminatory motives. Discrimination is unlawful and where an adverse act is taken against you because of such protected traits as your age, gender, pregnancy, race or national origin, disability, perceived disability, associational disability or sexual orientation, you may have legal claims against your Employer.
In the absence of direct evidence of discrimination or the smoking gun as we call it, discrimination can be shown if you are a member of the protected class and you were treated adversely (demoted, furloughed, laid off or terminated) under circumstances which give rise to an inference of discrimination, i.e. circumstances that show discrimination was the substantial motivating reason for the adverse act taken against you. The way an employer can defend itself against such a claim and rebut that inference is to show that there was a “legitimate” lawful reason for the termination, such as performance issues and other cause such as a business decision or reduction in force.
Certainly, you can all see where this is heading. COVID-19 and the related financial fallout provides your employer with the legitimate business reason it needs to “lawfully” terminate you. However, this cannot be accepted at face value. In fact, if you are able to show that the supposed legitimate reason relied on by employer was a sham or cover for discriminatory motives, you may prevail on your claims against them in a severance negotiation. There are surely many situations where an employer, especially during these challenging economic times, needs to make a tough business decision to lay off employees or institute a reduction of force, and where their decision to do so is legitimate and truthful.
Employer May Have Used Covid-19 As An Excuse to Fire You
However, there are also many instances where certain employees are selected within the context of a business decisions, based on discriminatory motives. For example, the company makes the “business decision” to lay off only the older employees, or only the female employees or only the pregnant employees. In addition, there might not even be any explicit or formal business decision to reduce costs or a effectuate a reduction in force, but your employer may still feel safe engaging in discriminatory behavior knowing or hoping that any terminations taking place now will be viewed as a necessary and legitimate, due to the Covid-19 business climate. Again, we cannot allow employers to use this catch-all defense to what maybe culpable and unacceptable discriminatory behavior. If you see something, say something to an employment attorney.
There is no doubt that both employers and employees are presently finding themselves in the most difficult and tenuous circumstances. However, employers, in response to COVID-19, seemingly have absolute power and new founded legitimacy to make discriminatorily targeted employment decisions against their at-will employees, under the guise of a business decision. And this is very concerning and unlawful. If you are in a protected class because you are over the age of 40 or fall into any of the other class of protected traits discussed herein, and have seen a change to your employment that you do not believe was made as the result of a good faith business decision, cost reduction, reduction in force in response to COVID-19, or other legitimate basis, we encourage you to speak to an employment attorney immediately. You may be entitled to reinstatement, severance or increased severance or settlement dollars relative to your discrimination claims for wrongful termination or other possible improper acts by your employer.
Carey & Associates, P.C. is currently providing complimentary consultations for potential new clients who are experiencing any employment related issues or believe they might have possible employment claims, as a result of the COVID -19 pandemic. Feel free to contact our office if you need help with that or any of your employment matters.
By Liz Swedock
As I’m sure everyone reading this knows by now, one of the biggest impacts of the ongoing coronavirus / COVID-19 crisis has been to employees – from every industry, every walk of life, CEOs to hourly wage workers. We’ve been receiving an unprecedented amount of calls because employees are unhappy and scared. This FAQ is to help answer some of your questions. If this FAQ doesn’t answer your question, or if your question is more complicated than what is covered here, please call us.
We continue to offer our standard free phone consultation with our attorneys, and we have added a reduced rate one-hour engagement for individuals who need our advice and help, but don’t necessarily need a full-blown attorney engagement. Our Initial One Hour Fee is $250.00 for Covid-19 related questions.
Common questions we are getting, starting with the most basic:
I’ve been fired because of coronavirus, what should I do?
File for unemployment online here: http://www.ctdol.state.ct.us/UI-OnLine/index.htm
To find your state specific unemployment office click HERE.
How long does that take?
The Department of Labor (DOL) is overwhelmed, but we are hearing that claims are being processed in approximately two to three weeks.
I’m an hourly employee and I haven’t been fired, but my hours have been eliminated or I have been told to stay at home and I’m not getting paid, what should I do?
File for unemployment online, you should qualify for benefits. There is no penalty for filing if it turns out you are not eligible, so when in doubt, file!
I’m an hourly employee and I haven’t been fired, but my hours have been reduced, what should I do?
File for unemployment online, you may qualify for partial benefits.
Should I tell my employer that I’m filing, especially if they haven’t fired me?
This is up to you, but we suggest yes. You are entitled to these benefits, but it can be helpful to have open dialogue so that you can stay on a positive note and hopefully resume your job after the crisis is over.
I’m a salaried employee and my employer told me they’re implementing a pay cut, can they do that?
Yes, usually they can if you are an at-will employee. With an exception being if you have a contract for your compensation. Another huge exception to be aware of here, is if any groups of employees are being treated differently. For example, if only older employees are being asked to work reduced hours or take a pay cut, that’s a major red flag for discrimination.
You may be eligible for partial unemployment, depending on the severity of the pay cut.
My employer is forcing me to go into work, can they do that?
This is where we get into more complicated answers. If your employer is lawfully open, the short answer is usually yes, they can require employees to come to work, or risk termination for cause.
Why does “for cause” matter?
Because, usually, if you are terminated “for cause” (or if you quit a job) you are not eligible to collect unemployment benefits.
If I refuse to go into work because I am uncomfortable about the virus risk, can my employer legally fire me?
Similar answer to above – usually, yes. If the business is lawfully open, they can require employees to go to work or face termination.
What if I requested to be allowed to work from home and my employer said no?
Generally, the employer is not obligated to allow you to work from home and can require you to go to work. However, important exceptions are discussed below, such as disability accommodations.
What if I can fully do my job from home and making me go into the office is ridiculous?
Unfortunately, the same answer as above, but please read the exceptions below!
I am not comfortable going into work and my employer told me my only option was to use vacation time or paid time off – can they do that?
Usually, yes. Similar to above, employers are generally allowed to require you to use your time off if you are electing not to go to work.
But I am a high risk person for COVID-19 (or have a close family member who is high risk), can I be required to go into work?
At the moment, this is somewhat unclear. Legally, even if you are high risk, the above rules still apply – meaning that your employer can require you to go to work. What is unclear is whether you will be able collect unemployment if you choose not to go to work to protect yourself or your family.
Why is that unclear?
There are certain exceptions where a person can be entitled to unemployment benefits, even if they quit their job or were fired “for cause.” One of these exceptions is where the working conditions endangered the employee’s health or safety. We do not yet know whether employees who refuse to go to work because they have concerns about COVID-19 will be found by the Department of Labor to be entitled to collect unemployment benefits.
Part 2: Dealing With Catching COVID-19
I’m an hourly employee, and my employer just sent everyone home (or work got suspended) because a coworker got sick or tested positive, can they do that?
Yes, but the same rules noted above apply. If you are not getting paid, file for unemployment.
I’m a salaried employee, and my employer just sent everyone home (or work got suspended) because a coworker got sick or tested positive, and suspended or reduced our pay, can they do that?
Yes, but again the same rules apply. You are likely eligible to collect unemployment benefits.
I have COVID-19 or I might have COVID-19, what should I do, related to my job?
We suggest that you immediately inform your employer and request information about what sick leave or paid time off you have, and also request information about legal rights which you may be entitled to. These rights include, but are not limited to, protected leave under the Family and Medical Leave Act (FMLA) and/or possibly paid leave under the Families First Coronavirus Response Act (FFCRA).
See more information on these laws below.
I have been in contact with someone who has or might have COVID-19, what should I do, related to my job?
Again, we suggest that you immediately inform your employer. Depending on your relationship to the individual who has COVID-19, you might also be protected under these laws, particularly if you are the caregiver of the individual affected by COVID-19.
I have COVID-19 and I am being fired, suspended, or sent home – can my employer do that?
If you are allowed to work from home and being paid, then there is probably no issue. However, from a legal standpoint, we expect that COVID-19 is going to be treated exactly like any other disability. This means that employees cannot be discriminated against if they have a condition – including COVID-19 – which “substantially limits one or more major life activities,” and “major life activities” includes working.
I don’t know or don’t think I have COVID-19, but I have been fired or suspended/sent home – can my employer do that?
Similar to above, if you are being paid, there is probably no issue and your employer is not explicitly prohibited from barring you from the workplace. However, if you are not being paid, it is possible that your employer’s treatment of you is unlawfully discriminatory. This will depend on several factors, such as whether you are being treated differently from other employees.
How do I know if I’m being discriminated against?
Generally, you are being discriminated against if you legally qualify as disabled and you are being treated differently from other people who do not have the disability, including COVID-19. This could be anything. It could be being demoted or having work taken away or your responsibilities reduced. It could be more obvious, like teasing or jokes or being isolated. Basically, anything that is negative for your job and related to a medical condition that limits your ability to work, can be discriminatory.
Hang on, are you saying that if I catch COVID-19 I am automatically legally disabled?
No. However, if any physical or medical condition limits your ability to engage in “major life activities,” you can be classified as disabled under both federal and state law. This can be temporary, such as with an illness like COVID-19.
What is FMLA?
The Family and Medical Leave Act is a federal law which provides eligible employees up to 12 weeks of unpaid leave per year, and requires group health benefits to be maintained during the leave as if the employee continued to work instead of taking leave. Connecticut law expands this to up to 16 weeks of protected leave per year for qualified individuals. The most important of these is that you are entitled to take a medical leave and you are entitled to have your job protected during that leave, meaning that your employer has to hold your job for you.
What is FFCRA?
The Families First Coronavirus Response Act (FFCRA) was recently passed by Congress and requires certain employers to provide their employees with paid sick leave and expanded family and medical leave for specified reasons related to COVID-19. The law will apply from April 1, 2020 through December 31, 2020.
What can I do if I am fired or my employment is otherwise impacted because I have COVID-19 or I might have COVID-19?
First, it is important to determine what legal rights you are entitled to, such as FMLA or FFCRA leave noted above, and, second, you should know your rights if you are being unlawfully discriminated against. The legal landscape here is developing, but, depending on your individual circumstance, we anticipate that negative treatment of employees related to COVID-19 will be held to be unlawful discrimination of an individual on the basis of having a disability or being perceived as having a disability. This will need to be evaluated on an individual basis, based on the impacted person’s individual fact pattern. If you think you have been discriminated against and want to discuss your options, we encourage you to call us.
In addition, if you qualify as disabled under the law due to COVID-19 (or due to any other reason), your employer is legally required to offer you accommodations to enable you to do your job. There is a wide range of potential accommodations, but it can include things such as allowing you to work from home, or with flexible hour arrangements. In short, if you qualify as legally disabled, there are a multitude of protections that you should be aware of that can help you.
What can I do if I am fired or my employment is otherwise impacted because I have been in contact with a person who has COVID-19 or might have COVID-19?
Again, depending on individual circumstances, this might constitute unlawful discrimination on the basis that you are “associated with” a disabled individual. It is illegal for an employer to treat someone differently because they are associated with a disabled person. This will need to be evaluated on an individual basis to determine if your rights are being violated.
CARES ACT- Individual Payments
The CARES Act provides for Economic Impact Payments to American households of up to $1,200 per adult for individuals whose income was less than $99,000 ( or $198,000 for joint filers) and $500 per child under 17 years old – or up to $3,400 for a family of four.
Additionally, the IRS will use the information on the Form SSA-1099 and Form RRB-1099 to generate $1,200 Economic Impact Payments to Social Security recipients who did not file tax returns in 2018 or 2019. Recipients will receive these payments as a direct deposit or by paper check, just as they would normally receive their benefits.
The United States Treasury is launching a web-based portal for individuals to provide their banking information to the IRS online, so that individuals can receive payments immediately, as opposed to checks in the mail.
Be sure to check this space as well as irs.gov/coronavirus for continuous updates.
CARES ACT- PAID FMLA LEAVE
The Families First Coronavirus Response Act (FFCRA or Act) requires certain employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. The Department of Labor’s (Department) Wage and Hour Division (WHD) administers and enforces the new law’s paid leave requirements. These provisions will apply from the effective date through December 31, 2020.
Generally, the Act provides that employees of covered employers are eligible for:
- Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or
- Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of paybecause the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or to care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor; and
- Up to an additional 10 weeks of paid expanded family and medical leaveat two-thirds the employee’s regular rate of pay where an employee, who has been employed for at least 30 calendar days, is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.
Covered Employers: The paid sick leave and expanded family and medical leave provisions of the FFCRA apply to certain public employers, and private employers with fewer than 500 employees.
Most employees of the federal government are covered by Title II of the Family and Medical Leave Act, which was not amended by this Act, and are therefore not covered by the expanded family and medical leave provisions of the FFCRA. However, federal employees covered by Title II of the Family and Medical Leave Act are covered and eligible for paid sick leave.
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.
Eligible Employees: All employees of covered employers are eligible for two weeks of paid sick time for specified reasons related to COVID-19. Employees employed for at least 30 days are eligible for up to an additional 10 weeks of paid family leave to care for a child under certain circumstances related to COVID-19.
If you anticipate needing paid time off, we advise you to inform your employer as soon as possible, however you are not legally required to give any type of “formal notice” or be granted permission to take such leave. After the first workday of paid sick time, an employer may require employees to follow reasonable notice procedures in order to continue receiving paid sick time.
Qualifying Reasons for Leave:
Under the FFCRA, an employee qualifies for paid sick time if the employee is unable to work (or unable to telework) due to a need for leave because the employee:
- is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
- has been advised by a health care provider to self-quarantine related to COVID-19;
- is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
- is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
- is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19; or
- is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.
Under the FFCRA, an employee qualifies for expanded family leave if the employee is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19.
Duration of Leave:
For reasons (1)-(4) and (6): A full-time employee is eligible for 80 hours of leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period.
For reason (5): A full-time employee is eligible for up to 12 weeks of leave (two weeks of paid sick leave followed by up to 10 weeks of paid expanded family & medical leave) at 40 hours a week, and a part-time employee is eligible for leave for the number of hours that the employee is normally scheduled to work over that period.
Calculation of Pay:
For leave reasons (1), (2), or (3): employees taking leave are entitled to pay at either their regular rate or the applicable minimum wage, whichever is higher, up to $511 per day and $5,110 in the aggregate (over a 2-week period).
For leave reasons (4) or (6): employees taking leave are entitled to pay at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $2,000 in the aggregate (over a 2-week period).
For leave reason (5): employees taking leave are entitled to pay at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $12,000 in the aggregate (over a 12-week period).
For more information about this article, please contact our employment attorneys at Carey & Associates, P.C. at firstname.lastname@example.org or call 203-255-4150.
By Fran Slusarz
On April 2, the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act become law. They are both part of the Families First Coronavirus Response Act and together provide certain workers with up to 12 weeks of paid leave to care for themselves or family members. It goes a long way to relieve some of the anxiety we all have about COVID-19, but the devil is in the details.
The laws only apply to government employees and private employers with fewer than 500 employees. Private employers with fewer than 50 employees may be eligible for exemptions from the laws. Employers of healthcare providers and emergency responders can elect to exclude them from the Emergency Paid Sick Leave Act, and the Secretary of Labor can exclude certain healthcare providers and emergency responders from both laws. Finally, both laws will sunset on December 31, 2020.
With those caveats, here is a summary of the safety net the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act provide for many employees.
Emergency Paid Sick Leave Act.
This law provides paid sick leave for all employees: 80 hours for full-time employees, and the average number of hours worked in a two-week period for part time employees. The amount of the payment depends on whether the employee’s health is the reason for the leave, or if the leave is to care for someone else.
The Employee’s Health
The employer must provide sick leave at full pay (up to $551/day and $5,510 in total), when the employee is:
1. subject to a Federal, State, or local quarantine order relating to COVID-19;
2. advised by a healthcare provider to self-quarantine due to concerns aboutCOVID-19; or
3. is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
This is extremely generous – it means that employees earning up to $143,260 per year will receive full pay for up to two weeks if they miss work due to their own COVID-19 health concerns.
Caring for Someone Else
Employees who miss work to care for a family member will be paid two-thirds of their regular pay (up to $200/day and $2,000 in total) if the family member is:
1. subject to a Federal, State, or local quarantine order;
2. has been advised by a healthcare provider to self-quarantine; or
3. the employee’s son or daughter whose school or childcare is closed due to COVID-19.
This is not as generous as income replacement for your own health, but you can minimize your loss of income if you can work reduced hours.
Terms, Conditions, Caveats
There is no waiting period to use Emergency Paid Sick Leave. Your employer cannot force you to use accrued paid time off before you use emergency sick leave, but you can choose to do so. You do not have to have been employed for a minimum amount of time, and your employer can’t require you to find someone to cover for you before you take paid sick leave.
The Emergency Paid Sick Leave Act does not give you two weeks off paid if you have cold symptoms. You have to demonstrate your eligibility just as you would with any other leave of absence. This means doctor’s notes and other reasonable proof. The leave ends when your need for the leave ends, even if it is on day 4.
Equally important, the law does not provide a paid leave if you are worried that you might be exposed to coronavirus by going to work, or if you are laid off or furloughed from your job. For layoffs or furloughs, you should file for unemployment. (Here is more information about your individual state unemployment rules due to coronavirus)
Emergency Family and Medical Leave Expansion Act.
This law broadens the coverage of the Family and Medical Leave Act (FMLA) and adds a paid leave element. The FMLA provides job protection for up to 12 weeks of leave if you cannot work because you have a serious health condition or because you have to care for a family member with a serious health condition. It only applies if your employer has at least 50 employees and only after you have worked for the employer for a 1250 hours. The employer could pay you during the leave, and you could choose to use accrued paid time off during the leave, but the law did not require the employer to provide a paid leave.
The Emergency Family and Medical Leave Expansion Act covers all employers with up to 500 employees (don’t forget the exceptions, above) and you get the benefit if you have been employed at least 30 consecutive days before your leave begins. You still qualify for the leave for your own serious health condition or to care for a family member, but the expansion covers leaves due to school and childcare closures.
The first 10 days of leave are unpaid under the FMLA expansion because they are paid under the Emergency Paid Sick Leave Act. During the remaining 10 weeks, your employer pays you two-thirds of your regular pay, up to $200/day and $10,000 in total. As with regular FMLA leave, you may have the option of working reduced hours or taking the leave intermittently.
Recognizing the potential hardship to very small employers, the law does not require employers with fewer than 25 employees to restore the employee to the same or an equivalent position if the pandemic has so changed the employer’s business that the job no longer exists. The employer still has to try to restore the employee to an equivalent position and take reasonable efforts to call the employee back if an equivalent job opens in the year after the leave of absence begins.
Don’t Cry for Me, Dear Employee
The potential outlay of money by employers is enormous. To illustrate, if an employee has 100 workers who need the maximum benefit under these laws, the employer will pay out $1,551,000 throughout the year and receive no services in return. This is a scary number for any business, and I can foresee a situation where your employer may try to negotiate a lower payment.
Don’t fall for it. They can’t do less than the law requires, and you have the right to file a complaint with the Department of Labor if they do. You are also protected against retaliation by your employer if you file a complaint.
Still worried you might hurt people you like if you aren’t flexible? Your employer will be reimbursed dollar-for-dollar by the federal government in credits on their quarterly employment tax returns and tax refunds. I’m not oblivious to the challenge this will be for your employer. I know that very few businesses have the spare cash lying around to make payroll for twelve weeks when little or no money is coming in. But Congress is working on very favorable loan terms to keep businesses open and fill the cash flow gaps.
Broad changes to our employment laws have never happened this quickly in our country, and more changes will come as this pandemic continues. Right now, Congress is working on another coronavirus relief package that will, I am sure, contain more sweeping changes. I will keep you posted on what these laws mean to you.
If you have questions or concerns about this article, please contact one of our employment attorneys at Carey & Associates, P.C. at 203-255-4150 or by email at email@example.com.
By Liz Swedock
COVID-19 is interrupting everyone’s lives these days, worldwide, and for many of us it is negatively impacting our jobs. Even while we are trying to achieve the work-from-home revolution, an unprecedented number of workers are experiencing frightening job stressors, including drastically reduced workload, changes in job responsibilities, dropped job responsibilities, and job loss. While not every negative impact can be fixed, there are a few legal protections that all workers should be aware of.
Is your job being impacted in a way that is unethical, or possibly illegal?
The sad reality is that the global recession is going to quickly motivate employers to start firing people. Businesses are panicked right now about their financial bottom line, and those salaries for all the people who aren’t in the office are looking daunting. While it may be legal for employers to lay people off due to purely financial concerns, all employees should be their own watchdog for any layoffs, terminations, demotions, or changes in responsibilities that appear to be unfairly – or unequally – happening.
What is unfair or unequal? Often the answer is discrimination. These days most people are aware of the protected classes of employees. They include older individuals (over 40), disabled individuals (physical or mental), gender, race, national origin, religion, and others. It is illegal for employers to single out any of these classes of individuals for negative treatment.
It’s often not obvious if an employee is being illegally discriminated against, which is why workers should arm themselves with what to look for. Sometimes illegal mistreatment is blatant, such as bullying and inappropriate remarks. But it can also be done through much more subtle means, like removal of responsibilities, being taken off projects or sidelined, exclusion from important meetings, or old-fashioned favoritism.
We all know what’s coming. As the economy is disrupted, companies are going to be forced to start eliminating employees. So, keep your eyes and ears open and watch out for anything that seems wrong. Did an entire project get cancelled or an entire team laid off? That kind of activity might be perfectly legal. However, does it seem like only the older employees or those with medical conditions are suffering the consequences? Has your multi-gendered and multi-national team suddenly become, well, a lot less diverse? These types of selective actions could be crossing a line into illegal territory.
Are you being denied rights that you are entitled to, particularly medical leave or accommodations?
The headlines are warning us that a huge percentage of the population should expect to catch COVID-19, a/k/a Coronavirus. This means that an even larger number of people can expect to be impacted by the virus, including if family members get sick.
If you or an immediate family member gets sick, you may be entitled to take medical leave while your job is protected – meaning, you cannot be demoted or fired. Federally, the Family and Medical Leave Act (FMLA) guarantees employees up to 12 weeks of leave per year if you’ve been an employee for at least one year and worked a minimum of 1,250 hours over the prior year. FMLA leave is unpaid, which means your employer is not required to pay you while you are on leave, but is required to hold your job for you until you return. Any negative impact on your job, such as by giving your work away or demoting you because you took leave, is illegal.
In Connecticut, this protection is expanded to 16 weeks of leave for any employee who works 1,000 hours during the prior year. In New York, since 2018, employees may be entitled to up to 10 weeks of paid family leave, up to 60% of their average weekly pay. This is one of the strongest protections in the country.
Can you take FMLA leave any time you or a family member gets sick? For a simple illness, such as a cold or the flu, the answer is usually no. However, you are entitled to leave for any “serious health condition,” which is defined as “an illness, injury, impairment, or physical or mental condition” which involves “inpatient care” or “continuing treatment by a health care provider.” Sound confusing? It is. Put quite simply, it’s not a black-and-white rule about when legal protections kick in for any individual medical situation. The bottom line is that if you, or a family member, has a medical problem that requires repeated, or ongoing, medical treatment, you probably qualify for protected leave.
It’s also important to know that individuals can take this medical leave in pieces, or “chunks.” This is called “intermittent leave.” What this means is that if you qualify for leave, but you can work sometimes, you can still be eligible for the protections provided under these laws, most importantly that you cannot be fired or demoted while utilizing your leave. This is extremely important for people who have ongoing medical conditions that require short periods of treatment.
Lastly, every employee with a medical issue should understand how the law defines “disability” and what an “accommodation” is. Legally speaking, disabilities can be temporary! You can be legally disabled if you have a medical condition that “substantially limits one or more major life activities,” and “major life activities” includes working. Of course, this means that many people who qualify for FMLA medical leave will also qualify under the law as disabled.
So, what protections do you have if you are legally disabled? A complete answer here would require far more space and time than I’m tackling in this article. However, the short answer is that your employer is required to cooperate with you so that you can do your job. In legal terms, this is called an “accommodation.” If you can do your job with a reasonable accommodation, then it is illegal for your employer to fire you, demote you, or do anything else to hurt your employment.
Just like with medical leave, it’s different for each person. However, an example how these legal systems work might be something like this – Person A contracts Coronavirus. Unfortunately, person A has the aggressive symptoms of the virus and needs to be hospitalized for a week, and then required to quarantine at home for a few more weeks. While they are hospitalized, Person A would be entitled to FMLA (and state) leave while they are in the hospital, and, most likely, while they have to self-quarantine at home. At the same time, Person A would most likely also qualified as disabled. This means Person A would have the following protections: the employer has to hold Person A’s job while person A is out, and, while Person A is recovering, the employer is required to offer Person A accommodations so that Person A can do Person A’s job. In other words, Person A cannot be fired, and must be given options to enable Person A to perform the job.
The takeaway here is to know your rights and stand up for yourself! Don’t expect your HR department to know the law or give you good advice. Even the most well intentioned employers or human resources people often don’t know how this process works, or what they are legally required to provide to you. You need to speak to an employment attorney to get the right advice, especially now during this Coronavirus pandemic.
If you have questions or concerns about this article, please contact one of our employment attorneys at Carey & Associates, P.C. at 203-255-4150 or by email at firstname.lastname@example.org.
By Mark Carey
In our continuing effort to bring you immediate and pertinent employment related information during the Coronavirus outbreak, I have the following answer to your question whether you will be paid for sick leave by your employer if you contract the Coronavirus and are ordered to self-quarantine at home.
I have researched for you all the states that provide for Mandatory Paid Sick Leave for employees who contract the Coronavirus. There are different requirements in each state and I have attempted to summarize them below. I have also included a link to each state statute for your further reading.
Please note, these benefits are in addition to Family Medical Leave Act benefits under state and federal law. Generally, employees are entitled to 12 weeks of paid/unpaid time off due to a serious medical condition under federal FMLA; some states like Connecticut provide for 16 weeks of FMLA leave. Employers often coordinate such a leave with Short Term Disability Benefits at a 100% of base salary.
The following states now provide paid sick leave to employees.
Employees are immediately entitled to paid sick leave upon hire. Employees accrue one (1) hour of earned sick leave time for every thirty (30) hours worked, but employees can only accrue 40 hours of earned paid sick leave per year. The statute applies to employers with 15 or more employees; employers may elect a higher annual amount if they choose.
Employees are eligible after 30 days of date of hire. Employees accrue one (1) hour of earned sick leave time for every thirty (30) hours worked. A total of 48 hours or six days
Employees who work for employers with 50 or more employees are entitled to 40 hours of paid sick leave per year. Employees accrue one hour of sick leave for every 40 hours worked. Employees can carry over unused sick leave from year to year, but are limited to 40 hours each year.
Employees are entitled to five (5) days of sick leave but must work for employers with 15 or more employees. Employees accrue one hour of sick leave for every 30 hours worked.
Employees are entitled to 40 hours of paid sick leave per year. Employees earn one hour of paid sick time for every 30 hours of work. Law applies to employers with 11 or more employees.
Maine – LD 396 (takes effect Jan. 1, 2021)
Employers with 10 or more employees will be required to provide 40 hours of paid sick leave each year. Employees must work 40 hours to earn one hour of paid sick leave.
Employees are entitled to 40 hours of paid sick leave each year and will accrue one hour of paid sick leave for every 30 hours of work. Law only applies to employers with 50 or more employees.
Employees are entitled 40 hours of paid sick leave each year, but can only use paid leave after the 90th day of employment. The paid leave can be accrue year over year.
Employees are entitled to 40 hours of paid sick leave each year or every consecutive 12 months. Law prohibits use it or lose it benefits, and must pay the balance of unused benefit; the paid sick leave can accrue year over year. The law prohibits a use it or lose it policy and the employer must compensate for unused paid sick leave.
Employees who have worked at least 90 hours for an employer are entitled to 40 hours of paid sick leave per year. Employees earn 1 hour of paid leave for every 30 hours worked.
Employees are entitled to 5 days (40 hours) of paid sick leave. Law applies to employers with 18 or more employees. Employees must wait 90 days after the date of hire to use benefit.
Employees are entitled to 40 hours of paid sick leave per year. Employees earn 1 hour of paid sick leave for every 52 hours of work.
Employees are entitled 40 hours of paid sick leave per year and hours can accrue year over year. Benefits do not start until 90 days after the date of hire.
If you need immediate assistance, please email our Employee Coronavirus Hotline and we will attempt respond to your questions. Mark Carey can be reached at 203-255-4150 or email@example.com.
The issue is not if the Coronavirus will impact your employment but when it will. If you contract the Coronavirus or you are quarantined due to a family member having the illness, you need to know the following important pieces of information to protect yourself.
1. Having the Coronavirus is a Disability and You Are Entitled to Protections
If you are diagnosed with the Coronavirus, you will have a physical disability pursuant to state and federal law. Generally, any impairment of your major life functions is considered a disability and it appears that the Coronavirus is so severe it can become fatal in a short period of time. An employer who discriminates against an employee who contracts the Coronavirus may be liable under disability laws. Also, you should request a reasonable accommodation for a disability leave of absence to quarantine yourself and seek medical assistance. Your employer has an obligation to discuss your accommodation, albeit after they order you not to come to the office until you recover.
State and federal disability laws also protect employees who are “regarded as” having the Coronavirus but have not been diagnosed yet or do not even have the virus. The medical community has only indicated the early signs of the Coronavirus mimic flu symptoms and you will not know which illness you have until you have been tested. The idea here is that disability laws seek to address discriminatory biases held by employers who speculate a person has a disability but are unsure about the truth of the employee’s medical situation.
Finally, the disability laws also protect employees “associated with” individual family members who have the Coronavirus. If you are fired out of fear that your family member infected you, you are protected against discrimination and unlawful termination, even though you never contracted the illness.
2. You May Have Rights Pursuant to the Family Medical Leave Act
If you contract the Coronavirus, and you have worked a significant number of hours in the past year, you may be entitled to take time off, paid in some states like New York and soon Connecticut. You will be entitled to 12 weeks or more and your job will be protected. However, you have to come back to work before the expiration of the FMLA leave or your employer will terminate you. This leave of absence overlaps with the disability accommodation request above. A good an employment lawyer will know how to navigate this for you.
3. You May Be Entitled to Short Term and Long Term Disability Benefits
You may also be entitled to paid time off under your employer’s short term and long term disability benefits plan. Again, this disability leave of absence overlaps with the disability and FMLA leaves of absence. In order to qualify for benefits, you need to apply for them through your Human Resources Department and demonstrate, via supporting medical documentation, you are totally disabled. Given the severity of the Coronavirus, you will certainly qualify as having a total disability. The grey area will be in those cases where the symptoms of the virus are not as severe and you recover within a matter of weeks. If you recover, and hopefully you do, the STD and LTD benefits will only be paid for the period of your disability. You would need to return to work after your recovery, but an employment lawyer will guide you through this process.
4. You May Be Entitled to Workers Compensation
If and only if you contract the Coronavirus while at work, can you file a claim for workers’ compensation benefits. This type of claim takes longer to collect from the insurer, but more importantly, it may bar you from recovery under other state laws but not federal laws. Federal laws will always preempt state law claims.
5. You May Be Entitled To Severance If You Are Terminated
If you are terminated for contracting the Coronavirus, regarded as having the virus or associated with a family member who has it, you should consider hiring an employment attorney to attempt to negotiate a severance package with your employer. Your employer may already have a severance plan which pays out benefits, i.e. weeks of salary for years of service, and you will need to sign a waiver and release of claims, aka settlement agreement. An employer will want to avoid any connection to accusations that it fired an employee for having the Coronavirus; it just does not seem fair and the right thing to do.
If you would like more information about this topic and need to speak to an employment attorney, please contact Mark Carey at firstname.lastname@example.org or call Carey & Associates, P.C. at 203-255-4150.