Employment Law Attorneys
What to expect if you’re expecting…. to get fired

What to expect if you’re expecting…. to get fired

By Liz Swedock 

Most at-will employees who have been recently terminated are given a “Separation” or “Severance” offer from their (now) former employer, in the form of a contract (or packet).  This post is intended to give you a few pointers of what to look out for in such agreements.

Remember – this is not legal advice for the individual! This is just a general guide for common issues we encounter.  If you have any specific questions about your own separation contract, please call us!

1.  Think of your separation/severance offer as a negotiation.

Most employees are not entitled to severance.  There is no such thing as legally required “two weeks” pay or anything like that.  However, most of the time employers offer terminated employees severance anyway.

Why do they do this? Because they want you to sign a legal release, which is a contractual agreement that you are waiving any rights or grounds you might have to bring a lawsuit against your employer.  Your separation/severance packet is this legal release.

So, what does this mean? It means they are offering you something because they want you to sign that release.  This is a tit-for-tat.  Don’t be afraid to ask for more before you sign.

2.  Review what you are being offered – usually money.

As noted, often at-will employees are not legally entitled to a specific amount of severance from their employer.  The first element you should think about, before you sign, is whether they are offering you enough in exchange for what they want from you – that legal release.

There might also be other components in your separation/ severance offer, such as continuation of health care or other benefits, or stock vesting.  Start by reviewing your agreement carefully to see what they are offering you.

3.  Confirm that you are being offered everything you are entitled to.

Review your employee handbook and any other documents you signed at any point during your employment, whether when you first started or while you worked there.

You are always entitled to be paid out for any accrued sick time, vacation time, or any other form of PTO your company offers.  You are also entitled to any earned wages, typically referred to as your “last paycheck.”  You must be paid for all this time by your next usual pay period.

Review your documents to confirm whether there are any contractual or established policies regarding termination, separation, or severance.  For example, your employer might be required to provide you with a notice period before they can terminate you.  This might be days, weeks, or months.  A notice period could be detailed in your individual employment documents, or in your company’s general documents, such as the employee handbook.

4.  Ask for a copy of your personnel file – you are legally entitled to it.

All you need to do is send an email.  It could be to HR or your own supervisor.  Your personnel file will contain all of the documents you signed with your employer, so this can be particularly useful when you have been employed for a while and can’t remember if you kept copies of everything.

5.  Confirm whether you have an ERISA group benefits plan which could include severance benefits.

The Employee Retirement Income Security Act of 1974 (ERISA) is a federal law that sets minimum standards for most voluntarily established retirement and health plans in private industry.  Sometimes employers also utilize ERISA plans for severance benefits.

If you are unsure, ask your employer and there is also a free website where you can search for your company name – https://freeerisa.benefitspro.com . You have to make an account, but it is actually free.

6.  Consider whether you might have any legal claims against your employer.

If you have a valid legal claim against your employer, this is a huge source of leverage as you negotiate your separation/ severance offer.

Remember, (most of the time) this is a pretty simple exchange.  They are offering you something (usually money) in exchange for your agreement to drop any potential legal claims you might have, even if you don’t have any.  This boils down to mean that they are potentially offering you free money in exchange for nothing if you have no legal claims.  Employers do this simply for peace of mind (and sometimes for reputational reasons in the industry).

If you do have a legal claim, that can be a game-changer in a separation negotiation.  At that point, you have to consider the elements on a scale – the value of your legal claim on one side, against the value of the legal release your employer wants, on the other side.  Bottom line, it means your company might be willing to offer you much more separation/ severance pay in exchange for you signing the legal release.

If you think you might have a claim, we encourage you to call us to discuss.

7.  Request to be released from any non-compete, non-solicit, or other restrictive covenants (if any apply to you).

If you are subject to any type of non-compete, non-solicit, or other restrictive covenants, now is the time to request to be released.  Remember – these are simply contractual agreements, and your employer can agree to release you at any time.  Even if your employer is not legally required to release you, they are often willing to discuss the option, and/or might agree to reduce the restrictiveness of such covenants.  This is part of the negotiation.

Even if such covenants are not spelled out in your separation/ severance offer – they might still apply to you if your separation/ severance offer “incorporates by reference” a prior contract.  Sometimes, if an employee signed a non-compete while they were employed, the separation/ severance offer might say something like “Employee agrees that Employee’s Employment Agreement is expressly incorporated by reference into this Agreement as if set forth fully herein.”  This means that every single restriction in your employment agreement still applies to you, even after you sign the new separation/ severance offer.  Be aware.

8.  Review non-disparagement provisions and ask that they likewise protect you.

Many separation/ severance offers contain non-disparagement clauses, which will say something along the lines of “employee agrees not to make any statements which disparage the company or are in any way harmful to the reputation of the company.”  These provisions are very broad and much more broad than the legal definitions of defamation or slander.  A single angry comment on Facebook, for example, could be a violation of this provision.  If you sign an agreement that contains this, be aware that you should avoid any negative commentary about your former employer, including online.

Likewise, you can ask for the same protection for yourself – that the employer commits not to make any disparaging, damaging, or negative statements about you in the future.  Again, don’t be afraid to negotiate.

9.  Control your future reference.

Similar to non-disparagement, you also have the option to ask for language which will control what your now former employer can say about you when you need future potential employers to call them for a reference.  The exact language is up to you, but we often request a provision that will only allow the employer to confirm your dates of employment, and position or title held.  You can agree or not agree to allow the former employer to give out your salary information.

10.  Arbitration clauses.

Many separation/severance offers include a clause which states that any dispute under the agreement must be brought in arbitration.  Like the rest of the provisions, it is ultimately up to you what you are willing to sign, but we typically encourage clients to fight against these provisions.  It can be counter-intuitive, but if a dispute arises, our experience has demonstrated that employees can often have much more leverage without arbitration restrictions.

For more information about this article, please contact our employment attorneys at Carey & Associates, P.C. at info@capclaw.com or call 203-255-4150.

For Employees – Frequently Asked Questions During COVID-19

For Employees – Frequently Asked Questions During COVID-19

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:

  1. is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  2. has been advised by a health care provider to self-quarantine related to COVID-19;
  3. is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
  4. is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
  5. 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
  6. 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 info@capclaw.com or call 203-255-4150.

Hours Reduced or Laid Off Because of Coronavirus? File for Unemployment Benefits!

Hours Reduced or Laid Off Because of Coronavirus? File for Unemployment Benefits!

By Liz Swedock

Massive layoffs are not only coming, they are already here.  Multiple news outlets are reporting that well over 52,000 people have filed for unemployment benefits in Connecticut over only the last few days (ordinarily it would be a few hundred over the same time period, so this is a massive increase).

So what are your options if you are terminated from your job or have your hours reduced? I’ll try to address some of the basic questions, however be aware that the state is actively considering potential modifications to these rules as the coronavirus / COVID-19 epidemic continues, so stay up to date.

Who is eligible for unemployment?  If you have been fired, laid off, or had your hours reduced due to no fault of your own, odds are that you are eligible to collect unemployment benefits.  This includes both salaried employees and hourly-basis employees.  “Fault of your own” means that you lost your job due to your own “willful misconduct,” which includes things such as committing a crime at work, stealing from work, or failing a drug or alcohol test required by law.  Eligibility requires you to be available for work, so if you are sick or otherwise unable to return to work, you might not be able to collect benefits.

If eligible, how much can you collect?  In Connecticut, the maximum benefit is 26 weeks (6 months) and up to $642 per week.  Your benefit amount is equal to the average amount you made over the highest two quarters in the previous year, divided by 26.  Claims take about one week to get processed, but might take longer due to the currently unprecedent number of people filing for unemployment.

What if your hours have been reduced but you haven’t technically been fired – can you collect unemployment?  Often, yes.

This is extremely important during the current COVID-19 crisis.  The rule in Connecticut is that if an employee is not employed “to the same extent” that he or she was employed over the previous year, that individual can be eligible for unemployment.  What is “not the same extent”?  It’s not 100% clear.  This determination will have to be made on a case-by-case basis.  However, if your job has been suspended – including if you have been told by your employer to stay home and not come to work while not getting paid – you are likely eligible to collect unemployment.

If your hours have been reduced, but not eliminated, you can still be eligible for partial unemployment.

This includes if you worked more than one job and one (or both) jobs reduced your hours, or if you were a full-time employee and your employer changed you to part-time.

Lastly, if you are denied unemployment benefits, be aware that you will have the option to appeal.  The Department of Labor is going to be overwhelmed with the sheer volume of current applicants, and we cannot expect them to be error-free.  If you think you should have been granted benefits, don’t give up if you get denied.

For more information on whether you are eligible for unemployment benefits, you should review guidance issued by the Connecticut Department of Labor (CT DOL) on March 13, 2020, which is available here: http://www.ctdol.state.ct.us/DOLCOVIDFAQ.PDF .

The bottom line is don’t leave money on the table! If there is any chance that you are eligible to collect benefits, you should file a claim and be prepared to explain your individual situation.  Claims can be filed online here: www.filectui.com .  There is no penalty if you file a claim and it turns out you are not eligible.

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 info@capclaw.com.

Protecting Your Job During Coronavirus: Two Things Employees Should Look Out For

Protecting Your Job During Coronavirus: Two Things Employees Should Look Out For

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.

  1. 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.

  1. 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 info@capclaw.com.

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