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.