Tens of millions of employed Americans have no paid sick or family leave available to them to cover their own illness or a family member’s illness. Millions more are facing (or have suffered) job loss. This post discusses many of the difficult issues that workers are now facing.
Must Companies Provide Paid Time Off for the Coronavirus?
No. At least not yet under federal law. While some large employers voluntarily provide generous paid sick leave or family leave, this is the exception (not the rule), as paid leave is not required by federal law.
Do Companies Have to Provide Leave to Care for a Family Member with the Coronavirus Under The Family and Medical Leave Act (FMLA)?
If you’ve worked full-time for a full year for an employer with 50 or more employees, you’re entitled to take up to 12 weeks of unpaid leave for your own serious health condition or the serious medical condition of a child, spouse, or parent.
Can My Employer Make Me Come to Work Under the Coronavirus Threat?
Maybe, unless a person can show that going to work would present a “recognized hazard that (is) likely to cause death or serious physical harm,” according to the Occupational Safety and Health Act (OSHA) (which may come in handy given this unprecedented coronavirus threat), if the workplace is reasonably safe and practicing appropriate social distancing you may still need to be physically present in the workplace.
Under the current crisis, many healthcare officials are warning that people should stay at least 6 feet away from others at all times, and that large gatherings be eliminated (which have been defined as 10 people or less) be eliminated. As a result, the legal answer for this question is not entirely clear, unless you’re actually feeling exposed due to your employer’s failure to take appropriate measures (such as providing protective gear if you’re a healthcare worker, etc.
As a practical matter, if you don’t feel that it’s safe to go to work and you are able to perform your job remotely, you may want to see if your employer will allow you work from home.
Can My Employer Require Me To Work from Home?
Probably. Employers are generally free to dictate the working conditions for employees, which may include asking them to work from home (assuming that doing so does not violate any employment policies), and assuming that you’re still getting paid your salary and benefits.
An employer cannot, however, make you stay at home.
If I Get Sick with the Coronavirus, Does My Employer Have to Keep My Job for Me?
Probably. If you work for an employer with at least 15 employees, you’re entitled to a “reasonable accommodation” of your “disability” under the Americans with Disabilities Act (“ADA”). This means that you can’t be fired for being sick and out of work for a period of time, unless the employer can argue it’s an undue hardship to continue to hold your position open for you.
“Undue hardship” is defined as an “action requiring significant difficulty or expense” when considered in light of a number of factors, including the nature and cost of the accommodation in relation to the size, resources, nature, and structure of the employer’s operation. The ADA does not apply to a family member’s disability, it’s just you the employee who’s covered by the law.
As a result, in most cases, assuming that you’ll only be out sick for the typical time frame it would take to recover from your illness, your employer will not be legally justified in firing you.
What Happens if I’m Fired While I’m Out Sick? I Think That I’ve Been the Subject of Illegal Discrimination.
Let’s suppose that you are fired while you’re sick with COVID-19, but you believe that the true reason for your termination was based upon discrimination (such as based upon your race, gender, or the fact that you’re pregnant). Is this OK?
Absolutely not.
Even without the Coronavirus, some employers fire workers under what is known as a “pretext.” A pretext in the employment context is trying to cover up the real and illegal reason that a specific action was taken—the employer instead substitutes a legal but false reason for an action.
For instance, a newly pregnant woman may be fired for purportedly arriving at work 30 minutes late (the “pretextual reason” for the firing), when the real reason is that her boss doesn’t want to pay for maternity leave or otherwise offer other accommodations that might be necessary.
We hold employers accountable when they illegally fire or otherwise discriminate against employees, regardless of the pretextual reason that they may claim.
Can My Employer Ask Me if I Have the Coronavirus (COVID-19)?
The short answer is “No.” But in these trying times, “Maybe.”
The Americans with Disabilities Act (the “ADA”) restricts questions that an employer can make into an employee’s medical status, and the Equal Employment Opportunity Commission considers taking an employee’s temperature to be a “medical examination” prohibited by the ADA, unless:
(1) the employer can show that the inquiry or exam is job-related and consistent with business necessity, or
(2) the employer has a reasonable belief that the employee poses a “direct threat” to the health or safety to others that cannot otherwise be eliminated or reduced by a reasonable accommodation (being flexible with the employee who’s struggling with an illness).
The bottom line in this crisis is that it’s completely unclear as to how a court might rule in this situation.
Can My Boss Discriminate Against Me Because They Think I’m Sick?
No – your company cannot discriminate against you due to your illness or because of the perception that you’re ill, whether you test positive for coronavirus or not.
Can My Employer Discriminate Against Me Because I’m Asian (or Chinese) with respect to the Coronavirus?
If your employer treats you differently (discriminates) against you because you’re of Asian ancestry (calling it the “Chinese Virus,” for example, or otherwise discriminating against you), that’s flagrantly illegal. If this happens to you, please feel free to contact our firm.
Many State and City Laws Provide Broader Protections and Deeper Benefits
For example, if you work for a New York City employer with five or more employees, you’re entitled to up to 40 hours of paid leave under the New York City Safe and Sick Leave Law, which is typically one week’s pay per year for full-time employees.
If you work for an employer with fewer than five employees, you’re entitled to up to 40 hours of unpaid leave, but at least the law provides job protection, if nothing in the way of needed salary replacement.
The NYC Safe/Sick Leave Program will also apply in the event that your company closes due to the coronavirus public health emergency, or to help you care for a child whose school or childcare provider closed due to this public health emergency.
Compensation in New York for Caring for a Sick Family Member
ALL NY State and NY City employers are required to provide employees with up to 10 weeks of paid family leave to care for a family member with a serious health condition (this is not a benefit for your own health condition). In 2020, employees taking Paid Family Leave will receive 60% of their average weekly wage, up to a cap of 60% of the current Statewide Average Weekly Wage of $1,401.17. So, the maximum weekly benefit for 2020 is $840.70. per week for 10 weeks.
You must have worked for this employer for 26 weeks to be eligible for NY’s Paid Family Leave Program.
ALL NY State and NY City employers are prohibited from discriminating against you due to your own disability (broadly defined), so you would be entitled to sick or disability leave to recover from your health challenges as a reasonable accommodation required by law. Your employer may not have to pay you while you’re out (unless you’re using your accrued vacation or sick time), but they can’t fire you or otherwise treat you differently because of your disability by creating a hostile work environment, or demoting or terminating your employment.
Also, as noted above, treating someone differently because of the perception of disability is just as illegal as discriminating against someone due an actual disability—so if your employer believes you have COVID-19 and treats you like a leper—even if you test negative for COVID-19, they would still be violating the state or city’s Human Rights Laws prohibiting disability discrimination.
Partial Unemployment Insurance Benefits in New York
If you’re laid off due to coronavirus, you can apply for unemployment benefits. The NYS Shared Work Program gives employers an alternative to laying off employees during business downturns (caused by say, a pandemic) by allowing employees to work a reduced work schedule and collect partial Unemployment Insurance benefits for up to 26 weeks.
The reduction in employees’ hours and the corresponding reduction in wages can be no less than 20% and no more than 60%. In other words, you would still be “employed” by the company, but the employer would pay less than your full salary and the state would kick in to cover the shortfall. The company must still maintain your “fringe” benefits such as your medical insurance, unless they are eliminated for the entire workforce.