Coronavirus – Know your rights April 7, 2020
1. If a family member or I become sick with the coronavirus, am I allowed to take time off from work?
The federal Family & Medical Leave Act (FMLA) allows a qualified employee to take up to 12 weeks of unpaid leave within a 12-month period if they or an immediate family member requires care for a “serious health condition.” The law also entitles a qualified employee to continued health insurance benefits and requires their employer to offer them the same or equivalent position when they return. Qualified employees are those who have worked for at least one year, over 1,250 hours in the prior year, and whose employer has at least 50 employees in a 75-mile radius.
The Families First Coronavirus Response Act (FFCRA) allows employees who work for employers of less than 500 employees to take up to 80 hours of emergency sick leave. An employee may take emergency sick leave under the FFCRA if they are: subject to quarantine or isolation order or caring for someone who is subject to a quarantine or self-isolation order; advised be a health care provider to self-quarantine due to coronavirus concerns or caring for someone who is advised to self-quarantine; experiencing symptoms of coronavirus and are seeking a medical diagnosis; caring for their child if, because of coronavirus protections, their school or day care has been closed or their childcare provider is unavailable; or experiencing similar conditions, as specified by the Secretary of Health and Human Services. The rate of pay varies depending on the circumstances and more information is available through the Department of Labor.
2. Is my employer required to pay me for my time off from work?
Some companies’ policies provide paid leave for those who are forced to take time off in connection with an illness. For those employers, the company policy generally will control the terms of the leave. Also, some states and cities have laws that provide employees with access to paid sick leave.
The FFCRA allows employees of employers of less than 500 employees to take up to 80 hours of emergency sick leave for qualified reasons, as follows:
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 pay because 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 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. These payments are subject to limits on maximum benefits and more information is available through the Department of Labor.
3. Can my employer fire me if I get the coronavirus?
As described in FAQ 1, the FMLA and other federal laws protect qualified individuals absent from work because of a serious health condition. Similarly, the Americans with Disabilities Act (ADA) prohibits discrimination against individuals with a disability. In certain circumstances, an employee who has an underlying condition exacerbated by the coronavirus (for instance, asthma or a heart condition) may be considered disabled.
The ADA defines a disability as a physical or mental impairment that substantially limits one or more major life activities, a history or record of such an impairment, or a perception by others of such an impairment. Besides prohibiting discrimination against people with disabilities, the ADA requires employers to provide reasonable accommodations for such individuals. State and local laws sometimes extend additional protections for people with disabilities or serious health conditions.
4. Do I have the right to work from home if I’m uncomfortable reporting to my job, even if I am not sick? May I work from home to care for my children who are at home because of school or childcare closings?
Generally, there is no legal right to telecommuting, as employers have the right to dictate the terms of employment. If an underlying disability places you at high risk for coronavirus, you may have the right to telecommute as an accommodation, depending on whether working from home is reasonable under the circumstances.
The FFCRA permits employees to take emergency sick leave to care for a child whose school or day care has closed, or where childcare is otherwise unavailable because of coronavirus protections. In addition, employees may be entitled to up to an additional 10 weeks of leave at two-thirds the employee’s regular rate of pay if an employee is unable to work due to bona fide child care need related to COVID-19. These payments are subject to limits on maximum benefits and more information is available through the Department of Labor.
5. Can my employer require me to work from home if I don’t want to? Can my employer prohibit me from traveling for personal or business reasons?
Employers have the right to set the terms and conditions of employment, which includes work location, so long as they comply with the law. That means that an employer can require employees to work from home due to a reason such as business need or health and safety.
However, an employer may not mandate that certain people work from home because of a perceived or actual disability if it would operate as an adverse action based on a disability. For example, if working from home was akin to a demotion or resulted in lower pay for only certain individuals, those individuals may be protected by federal, state, or local statutes that prohibit discrimination based on a disability.
Your employer can prohibit you from traveling for business reasons because work-related travel is considered a condition of employment. Your employer cannot prevent you from traveling for personal reasons on your own time, but it may be able to bar you from working in the office if you have recently traveled or for purposes related to health and safety.
6. If my employer requires me to work from home, am I entitled to be paid for that time?
Yes! Generally, if you are a salaried employee and you work any portion of the week, you must be paid your regular weekly pay. Hourly employees who work from home are entitled to be paid for all hours worked, including overtime hours.
7. Is my employer required to pay for the cost of me setting up a home office?
Whether you are entitled to reimbursement depends on your jurisdiction and your rate of pay. If the expenses you incur in setting up your home office causes your weekly pay to drop below the minimum wage, you may have a claim under the federal Fair Labor Standards Act (FLSA) and some state wage and hour laws. Certain states, like California, require an employer to reimburse workers for things like internet access, computers, and cell phones used for work.
8. What happens if my employer lays me off or cuts my hours?
There are specific laws that protect employees from mass layoffs. For example, under the federal Worker Adjustment and Retraining Notification (WARN) Act, companies must give affected employees 60-days advanced written notice of the mass layoff, worksite closing, or plant closing. Some states have their own WARN Acts, including California, Connecticut, Illinois, Hawaii, Iowa, New Jersey, and New York.
Several states and cities require an employer to provide schedules in advance and must pay the workers when they take away or add shifts. Some laws also require extra pay when employers require workers to work split shifts, and if you are laid off or have your hours reduced, you may be entitled to unemployment benefits, which vary by jurisdiction.
If your employer offers you a severance agreement, it is important to consult with an attorney about what rights you may have and what rights you may be giving up by signing the agreement.
9. Can an employer withdraw an offer letter or employment agreement because of changed circumstances, like Covid-19?
In general, as a matter of contract law, any offer can be withdrawn or revoked before it is accepted, unless it is “irrevocable” – which is rarely seen in employment situations. Once an offer is accepted unconditionally (before being withdrawn or revoked), it becomes a binding agreement.
Generally, an employer can withdraw a job offer for almost any reason, except a discriminatory one (race, religion, nationality, etc.). Nonetheless, most offer letters, even if binding, do not provide much in the way of substantive rights for the employee; and most employment agreements provide that the employment is “at will,” so the employer can fire the employee without cause (even before the employment has started).
Under any offer letter or employment agreement, the key issue is whether the employee has any enforceable rights upon termination of employment without cause (e.g., a notice period, severance pay, payment of an accrued bonus, or vesting of deferred compensation).
Even if contractual rights do not exist, an employee might have claim against an employer who rescinds a job offer under the doctrine of promissory estoppel. Under that doctrine, some states (including New Jersey, California, and Illinois) allow an employee to seek damages due to withdrawn job offers: examples include moving costs that the candidate incurred to relocate for the offer or lost income resulting from quitting prior employment based on the withdrawn offer.
With respect to a person with a disability, an offer may be revoked if the employer can show that the prospective employee would be “unable to perform the essential functions of the job (with or without reasonable accommodation)” or the prospective employee poses a “significant risk of causing substantial harm” to others. How this analysis may apply to those suffering illnesses from COVID-19 is yet to be seen.
10. Can an employer withdraw an unexecuted severance agreement?
Ordinarily, a severance agreement can be withdrawn before it is accepted. Arguably, the employer cannot withdraw during a stated “consideration period” (21 or 45 days under the Older Workers’ Protections Act (link). But even that is not a black letter law and exceptions exist, particularly where the employer is not asking an employee to waive rights under the Age Discrimination in Employment Act.
11. Can an employer renege upon a fully executed severance agreement or deny payment to an employee based on economic changes at the company? Does it matter if the employer has an ERISA plan in place that covers severance?
Generally, a contractual promise to pay is enforceable, and an employer would be in breach of contract if it if reneges on that promise, absent a material breach by the employee. If an employer fails to honor its obligations under a severance agreement, the employee may be able to sue for breach of contract.
If a company goes bankrupt and cannot pay agreed-upon severance benefits, the affected employee may be able to file a claim in bankruptcy court. In any event, with respect to plant closings and mass layoffs, employees may be entitled to relief under federal and state laws, like the WARN Act (see FAQ 8).
12. If my employment is terminated or I am laid off, can I get more time to exercise vested stock options?
Whether the deadline to exercise your vested stock options can be changed depends on several factors, such as whether you have ISOs or NSOs, the expiration date of your options, and how the relevant plan is drafted. Sometimes, the deadline can be extended by asking the employer to provide working notice instead of severance, by entering into a contractor arrangement with the company, or by simply extending the exercise period.
13. I am aware that my company is not following the law or is fraudulently billing the government for medical supplies and equipment. Do I have any protections if I come forward?
The False Claims Act (FCA) protects employees, contractors, and agents who report to their employer or supervisor any company conduct that may result in a fraud on the government. Healthcare-related fraud might include opposing double-billing of Medicare or Medicaid, reporting the sale of defective products to the government, refusing to follow an order to upcode, reporting the payment of kickbacks to refer patients for services reimbursed by Medicare or Medicaid, or trying to stop a provider from billing Medicaid for unnecessary medical services.
During national disasters, the government often issues grants or stimulus packages to help fend off other kinds of harm. If you report concerns that your employer is defrauding a disaster relief program through FEMA, HUD, or another government agency, you may also have protections against whistleblower retaliation. Finally, some states have protections for employees who raise concerns about company conduct that is unlawful or endangers public health or safety.
If you know your employer is fraudulently billing the government or breaking the law in other ways, contact an attorney immediately so you can take steps to make sure you are protected.
14. What if my employer or coworkers are discriminating against me because of my race, ethnicity, or national origin?
As the coronavirus outbreak has escalated, some employees have reported negative treatment from employers or coworkers because of their race, ethnicity, or national origin. That type of mistreatment is discrimination, and it’s illegal under federal law and many state and local laws.
Discrimination can take many forms, including derogatory comments, slurs, stereotyping, and adverse employment actions like poor performance reviews, demotion, or termination. If you have reason to believe you are being discriminated against because of a protected characteristic like your race, ethnicity, or national origin, contact an employment discrimination attorney immediately to understand what options you may have.
These laws also prohibit employers from retaliating against employees because they have exercised – or sought to exercise – their workplace rights. Retaliation includes any threat, discipline, firing, demotion, suspension, or reduction in hours, or any other negative employment action when those actions are caused by a worker’s efforts to assert their workplace rights.
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