Know Your Employee Rights: The coronavirus (COVID-19) and the Workplace

By Jack Tuckner, Partner at Tuckner, Sipser, Weinstock & Sipser, LLP

The escalating coronavirus pandemic (COVID-19) has changed the life and work situations for millions of people throughout the US. In this time of frightening medical and economic crisis, Tuckner Sipser is especially concerned about protecting employee rights, we have prepared a set of FAQs to explain how federal, state, and local laws can protect your job and your income.

Below is information about federal and New York State laws, please also see information about New York City employment laws and the COVID-19 / Coronavirus pandemic.

  1. If I or a family member get sick with coronavirus, am I allowed to take time off from work?

The federal Family & Medical Leave Act 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 FMLA also entitles a covered employee to continued health insurance benefits and requires their employer to offer them the same or equivalent position when they return to work. Qualified or covered employees are those who have worked for at least one year for the same company, have worked over 1,250 hours in the prior year (which means in essence, a full-time employee), and whose employer has at least 50 employees working within a 75-mile radius.

The Families First Coronavirus Response Act (FFCRA) allows all 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:

  1. subject to quarantine or isolation order or caring for someone who is subject to a quarantine or self-isolation order;
  2. advised be a health care provider to self-quarantine due to coronavirus health concerns or to care for someone who is advised to self-quarantine;
  3. experiencing symptoms of coronavirus illness and are seeking a medical diagnosis;
  4. caring for their child if, because of coronavirus issues, their child’s school or day care has been closed or their childcare provider is unavailable.

The rate of pay will vary depending on your unique work and family circumstances: More information is available through the Department of Labor website at this link provided.

City and state laws may provide even greater protections for employees, such as in New York, where this employee rights law firm is located. See the information below on NY state and NY city additional protections.

  1. Is my employer required to pay me for my time away from work due to the virus?

Some companies’ policies provide paid leave for those who are forced to take time off in connection with a sickness or disability. For those workers, the company policy generally will control the terms of the sick or disability leave. Also, some states and cities have laws that provide employees with access to paid sick leave, such as New York (see below).

The FFCRA allows employees of employers of less than 500 employees to take up to 80 hours of emergency sick leave for certain qualifying reasons, such as:

  • Two weeks (up to 80 hours) of paid sick leaveat the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (due to a federal, state, or city government order or advice of a health care provider), and/or the employee is experiencing coronavirus symptoms and seeking a medical diagnosis from a doctor; or
  • Two weeks (up to 80 hours) of paid sick leaveat two-thirds of 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 (due to a federal, state, or city government order or advice of a health care provider), or, to care for a child under the age of 18 whose school or child care provider is closed or unavailable for reasons related to the coronavirus.

These payments are subject to certain limits and maximum benefits. For more information check this Department of Labor link.

City and state laws may provide even greater protections for employees, such as the protections provided by New York, where this law firm is based. Please see the information on NY below.

  1. Can my employer fire me if I get sick with coronavirus?

The FMLA and other federal and state laws protect qualified individuals who cannot work because of a serious health condition, such as the Americans with Disabilities Act. In certain cases, an employee who has an underlying condition worsened by the coronavirus (e.g., emphysema or diabetes) may be considered disabled under the ADA.

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 city laws sometimes grant additional protections for people with disabilities or serious health conditions, such as the state and city disability laws in New York. See the information below.

  1. Do I have the right to work from home if I’m uncomfortable reporting to work, even if I’m not sick? And can I work from home to care for my kids who are at home because of school closings?

In general, there is no federal or state-granted legal right to work from home, as employers have the right to set the terms of your employment. If an underlying disability places you at high risk for coronavirus, you may then have the right to work remotely as a reasonable 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, etc. 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 childcare needs related to COVID-19. These payments are subject to the new limits on maximum benefits and more information is available through the Department of Labor site.

  1. Can my employer force me to work from home if I don’t want to work from home, and can my employer prevent me from traveling for personal or for business reasons?

By definition, employers may set the terms and conditions of your employment, which includes your work location, as long as they comply with the law. That means that your company can require you to work from home due to a reason such as business need or for safety and health reasons, but an employer may not force certain people to work from home because of a perceived or actual disability if it would be akin to an adverse employment action based on a disability. In other words, if working from home was similar to a demotion, or if it resulted in lower pay for only certain workers, those employees may be protected by federal, state, or city laws that prohibit discrimination based on a disability (or when they perceive you as disabled).

Your employer can prohibit you from traveling for business reasons because work-related travel is considered a condition of your employment, yet they cannot prevent you from traveling for personal reasons on your own time, although keep in mind that they may be able to prevent you from working in the office if you recently traveled, due to health and safety concerns.

  1. If my employer requires me to work from home, am I entitled to be paid for that time?

Absolutely yes. if you are a salaried employee and you work any portion of the week, you must be paid your regular full weekly pay. Hourly employees (non-exempt employees) who work from home are entitled to be paid for all hours worked, including overtime hours.

City and state laws may provide even greater protections for employees.

  1. Is my employer required to pay me for the cost setting up my home office?

Maybe. Whether you are entitled to reimbursement depends on your state or city 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 would likely have a claim under the federal Fair Labor Standards Act (FLSA) and NY’s Wage Theft and Labor Laws, as well.

  1. 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 Act (WARN), companies must give affected employees 60-days advanced written notice of the mass layoff, and worksite or plant closing. Some states such as New York have their own WARN Act.

Several states and cities require an employer to provide schedules in advance and must pay employees when the company reduces or add work 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 according to each jurisdiction.

If your employer offers you a severance agreement, it is important to consult with an attorney in your jurisdiction about the rights you have and what rights you are forfeiting by signing the severance agreement contract, sometimes called a separation agreement.

  1. Can an employer withdraw an offer letter because of the coronavirus?

As a matter of straight contract law, any offer can be withdrawn before it is accepted. Once the offer is accepted unconditionally (before being withdrawn), it becomes a binding agreement.

An employer can withdraw a job offer for almost any reason, for discriminatory reasons (such as finding out you’re pregnant, or because of your race, religion, etc.). Even so, most offer letters do not provide much in the way of contractual rights for the employee (it’s not a binding contract); and most employment agreements provide that the employment is “at will,” which means that you can quit whenever you want and the employer can fire the employee at any time and for any reason, even before the employment relations has begun.

Under any employment agreement, the main issue is whether the employee has any enforceable rights when they’re fired without cause (such as a required notice period, severance pay, accrued bonus payment, or any vested benefit, stock, 401K or other accrued deferred compensation benefit).

Regarding 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. So, this may eventually play out with COVID-19 cases in unforeseen ways, as we’ve never encountered such mass illness in this country to date.

  1. What if my employer is discriminating against me because of my race, ethnicity, or national origin due to fear of the coronavirus?

As the coronavirus pandemic has escalated, some employees have reported negative treatment from managers and coworkers because of their race, ethnicity, or national origin. This type of abuse and mistreatment is discriminatory, and it’s illegal under federal, state and city laws.

Workplace discrimination can take many forms, including name calling, demeaning comments, stereotyping, racial slurs and adverse employment actions such as poor performance reviews, demotion, failure to promote or termination. If you have believe you are being discriminated against because of a protected characteristic such as your race, contact an employment discrimination attorney immediately to understand your rights and legal options.

These laws also prohibit employers from retaliating against employees because they have complained about their workplace rights. Retaliation includes any threat, discipline, firing, demotion, suspension, or reduction in hours, or any other negative (adverse) employment action, when those actions are caused by a employee’s efforts to exercise their workplace civil rights.