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We have now entered our fifth month living with the Coronavirus Pandemic and although we had hoped that by now we would be well on our way back to some semblance of “normal,” at least with regard to our work lives, that simply is not the case. As various states, including Georgia, have attempted to reopen their economy and return employees to their physical workplace, the number of reported COVID-19 cases has increased at an alarming rate. Many workers are finding that people at their worksite have tested positive, been exposed to or even contracted the disease and this is concerning to them. Camps that had opened up to provide daycare for working parents are closing down. Employees that had no need to understand their rights back in March and April when they were tele-commuting, now need to know exactly what laws are in place to protect them. If you want to know more about your rights as an employee during this pandemic, please continue reading, but understand that the legal landscape in this area is constantly changing, so please check back often to our website, or fill out a Consultation Request.

THE 2020 LAWS PROVIDING RIGHTS TO EMPLOYEES DURING THE PANDEMIC

Congress passed, and the President has signed two primary laws that directly affect employees impacted directly or indirectly by the COVID-19 virus: the Families First Coronavirus Response Act (FFCRA), which is effective from April 1, 2020 to December 31, 2020 and the Coronavirus Aid, Relief and Economic Security (CARES) Act, which generally was effective on March 27, 2020. The CARES Act amended the FFCRA with respect to some sick time provisions and also provides expanded unemployment insurance benefits.
The FFCRA law covers individuals who work as a part-time or full-time employee for any public agency regardless of size, or a private entity with less than 500 employees. The law’s emergency paid sick time provisions apply to employees who are unable to work or telework 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 his or her child whose school or place of care is closed (or childcare provider is unavailable) due to COVID-19 related reasons; or
  6. is experiencing any other substantially similar condition specified by the U.S. Department of Health and Human Services.

Generally, employers covered under the FFCRA must provide employees up to two weeks (80 hours, or a part-time employee’s two-week equivalent) of paid sick leave based on the higher of their regular rate of pay, or the applicable state or Federal minimum wage, paid at:

  • 100% for qualifying reasons #1-3 above, up to $511 daily and $5,110 total;
  • 2/3 for qualifying reasons #4 and 6 above, up to $200 daily and $2,000 total; and
  • Up to 12 weeks of paid sick leave and expanded family and medical leave paid at 2/3 for qualifying reason #5 above for up to $200 daily and $12,000 total.

An employee that is furloughed or laid off is no longer eligible for paid leave under the law, though the employer must still pay for any covered leave already taken and the employee might be eligible for unemployment benefits. However, it is illegal for an employer to terminate or otherwise retaliate against an employee because he or she sought to exercise his or her right to emergency paid sick time or family leave under the FFCRA. The protection against retaliation, includes job loss, discipline, and/or discrimination for using emergency paid sick time or emergency paid family leave.

An employer must continue the health care coverage for employee as if the employee continued to work. Any employee that exercises his or her right to use FFCRA leave must be reinstated to their same job position or to an equivalent position with equivalent employment benefits, pay, and other terms/conditions of employment. There is a limited exception to the right to be reinstated, but not to the protection against retaliation, for workplaces with less than 25 employees. Employees may file a claim with the Department of Labor if they suspect retaliation, or request a consultation on our website.

The CARES Act includes several provisions dealing with unemployment benefits that will be paid for by the federal government:

  • Pandemic Emergency Unemployment Compensation (PEUC): Subject to certain requirements, workers can receive up to 13 weeks of additional benefits under their state unemployment insurance program after exhausting their regular unemployment insurance benefits.
  • Pandemic Unemployment Assistance (PUA): Subject to certain requirements, workers who are not eligible for regular unemployment insurance will be eligible for special benefits for up to 39 weeks (counting any weeks that the worker received regular or PEUC unemployment benefits). These benefits will cover workers who are unable to work for one of several specific COVID-19 related reasons. PUA will also provide benefits to those who are unemployed or cannot find work and do not qualify for regular unemployment insurance because they are self-employed, seeking part-time work (in some states), lack sufficient work history, or otherwise do not qualify. These benefits will cover the period from January 27, 2020 to December 31, 2020 and can be paid retroactively (although the additional $600 a week under PUC is not available for any workers until March 27).
  • Pandemic Unemployment Compensation (PUC): Workers receiving either regular unemployment insurance benefits (including PEUC) or PUA can receive $600 per week in addition to their regular benefit amount from March 27, 2020 until July 31, 2020.

EXISTING ANTI-DISCRIMINATION LAWS PROTECT EMPLOYEES DURING THE PANDEMIC

There are a number of federal anti-discrimination laws that existed before the pandemic that provide protections and rights to employees impacted by the COVID-19 pandemic. These include the Americans with Disabilities Act (ADA) and the Rehabilitation Act (which include the requirement for reasonable accommodation and non-discrimination based on disability, and rules about employer medical examinations and inquiries), Title VII of the Civil Rights Act (which prohibits discrimination based on race, color, national origin, religion, and sex, including pregnancy), the Age Discrimination in Employment Act (which prohibits discrimination based on age, 40 or older). While these laws continue to apply during the pandemic, they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding the COVID-19 pandemic.

The Equal Employment Opportunity Commission (EEOC) has provided a publication entitled Pandemic Preparedness in the Workplace and the Americans With Disabilities Act written during a prior H1N1 to help everyone navigate COVID-19 in the workplace vis-a-vie the Americans with Disabilities Act.

The ADA provides protections from medical exams to employees. During a pandemic, however, ADA-covered employers may ask employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Any employee who has symptoms of COVID-19 may be sent home and there is no violation of the ADA.

Also, because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperature or may test them for COVID-19 without violating the ADA. On the other hand, an antibody test constitutes a medical examination prohibited under the ADA and at this time does not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries and cannot be required to return to work or for any other reason.

Another provision of the ADA gives disabled employees who can perform the essential functions of their job with or without an accommodation the right to ask for an accommodation. It is now common knowledge that the COVID-19 virus is likely more lethal in individuals who have some other illness or underlying medical condition, particularly one that impacts their immune system. Thus, individuals who are qualified as “disabled” under the ADA are more likely to have issues when returning to the workplace and being exposed to groups of co-workers and customers. The ADA requires employers to accommodate individuals with a disability if doing so can be accomplished without any undue hardship to the employer. There may be reasonable accommodations that could offer protection to an individual whose disability puts him at greater risk from COVID-19. Flexibility is the key.

Low-cost solutions can often be achieved with materials already on hand. Accommodations for those employees who need reduced contact with others due to a disability may include changes to the work environment such as designating one-way aisles; using plexiglass, tables, or other barriers to ensure minimum distances between customers and coworkers whenever feasible per CDC guidance or other accommodations that reduce chances of exposure.

There are some accommodations that may meet an employee’s needs on a temporary basis without causing undue hardship on the employer. Temporary job restructuring of marginal job duties, temporary transfers to a different position, or modifying a work schedule or shift assignment may also permit an individual with a disability to perform safely the essential functions of the job while reducing exposure to others in the workplace or while commuting. At all times, the employer is obligated to discuss and consider accommodations for any employee with a preexisting disability. However, if the employee does not request a reasonable accommodation, the ADA does not mandate that the employer take action.

Under the ADA an employer does not have to provide a particular reasonable accommodation if it poses an “undue hardship,” which means “significant difficulty or expense.” An employer may consider whether current circumstances create “significant difficulty” in acquiring or providing certain accommodations, considering the facts of the particular job and workplace. The sudden loss of some or all of an employer’s income stream because of this pandemic is a relevant consideration to whether an accommodation constitutes a “significant expense.”

The Americans with Disabilities Act grants disabled employees the right to be treated the same as all comparable non-disabled employees. This means that an employer cannot exclude disabled employees from being called back to work from furlough when it starts calling non-disabled employees back to work. This is so even if the employer is basing that decision on what it considers to be in the best interests of the disabled employee. The same is true for basing such a decision upon the fact that an employee is over the age of 60 (or any other age over 40) or is pregnant, even though these are factors that might make an individual at higher risk of harm from COVID-19. Under the Age Discrimination in Employment Act and the Pregnancy Discrimination Act, even if motivated by benevolent concern, an employer is not permitted to single out workers on the basis of age or pregnancy for adverse employment actions, including involuntary leave, layoff, or furlough.

This article only scratches the surface of the legislative protections afforded to workers who are struggling to stay healthy and employed during this pandemic. Virtually every day a new scenario pops up that requires employment lawyers to review the statutes, case law and best interests of the parties to try and make proper employment decisions.

 

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