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Existing Federal Rights at Work In the Context of the Coronavirus

Updated: Apr 7

DISCLAIMER - This is not legal advice but provided as educational information only. Some of the rules may not apply to your place of employment due to location or employer size. If you have specific questions about your employment situation, you should consult with a local attorney.

Now that COVID-19 is quite literally going viral, many of us were left wondering how this will affect our health as well as our job security. If we are quarantined, will we still receive our paychecks? We all need money to support our families. Can we be fired if we don't feel safe going to work?

The American employment law system was not set up for job protections during a mass health crisis. There was no national right to paid sick days, which was a serious public health risk. There was also no right to a leave of absence for many Americans, or a right to a school closure leave. Fortunately, the Families First Coronavirus Response Act was passed, giving many Americans job security during this confusing time. In this article, I will cover not cover the new rights under this Act. Instead, I will review those employment rights that already existed on a federal level prior to the passing of this Act. If you want to read more about your rights under the new Act, please click here.

There are also workers not covered by the new Act, such as healthcare workers and employees working for employers with 500 or more employees and small businesses. To these workers, the rights below may provide relief. These existing employment protections continue to apply. They have not been revoked. Employers still have a duty to keep the workplace safe, and still need to ensure no one is terminated unlawfully. But when fears run high, the application of these rules gets blurry. My concern for workers is that employers may start to anticipate a collapse of the economy, and will start cutting workers' hours or pay or discharge them all together. This may or may not be legal.

Let's take a look at the existing rights that would apply in these scenarios.

What are your rights if You Don't Have the Virus

- OSHA Protects Health and Safety at Work

The Occupational Safety & Health Administration dictates employers must provide a safe and healthy workplace for its employees. This includes protective gear and respiratory protection. My take on this is that employers should intensify its cleaning measures and have an open door policy with their employees regarding any symptoms. Employers may also mandate hand washing or other hygienic measures. Because employers have to keep the workplace safe, they may send employees home if they display flu-like symptoms, as this would pose a direct threat to the health and safety of others. Employers may request medical information from employees, but generally must keep this information confidential.

- If You Don't Have the Virus, You May Have Job Protection Rights If The Workplace is Unsafe

If you self-quarantine because you fear you will get infected at work, you will only have job protection if there are people showing symptoms of the virus at work and your employer is not taking any remedial action to separate the sick employees. Because the virus can display as asymptomatic, I would argue that government guidelines about a threat in your region or district may be enough for you to have a reasonable basis that the workplace is unsafe. If this happens, and your employer is reluctant to send the sick employee home or refuses to allow you to work remotely, talk to your managers and/or HR and bring newsletter articles regarding your job location, such as articles about schools closing or other workplaces shutting down. It would also be reasonable to refuse to travel to high risk zones. If you are pregnant, it would be particularly reasonable that you would not want to appear on-site if there is a risk. It's important that you communicate your fears to your employer. For your job to be protected, you have to proactively lodge complaints with your managers and/or HR that you feel unsafe at work or with certain assignments. If the employer fails to act, you should file a charge with OSHA through the Department of Labor (make sure to contact a local attorney before filing). By complaining about an unsafe work environment, you will be protected as a whistleblower, whether you make the complaint internally or through a public agency. As a whistleblower, you are protected from retaliation.

Employers may not retaliate against employees for reporting safety concerns. For example, if an employee complains that her coworker is coughing and sneezing in her face and that she fears being infected with the virus, the employer should not tell the employee, "This virus is such nonsense, I'm going to let you go because I can't have fragile and paranoid workers here." Please know you would only be protected from retaliation. Making complaints about a lack of safety does not automatically grant you job-protected leave. It does protect you from adverse actions in response to your complaints that your employer is not taking this seriously. Here is more information on OSHA rules regarding the virus.

- If You Don't Have the Virus, You Do Not Have Job Protection Rights If The Workplace is Safe

If there is a lockdown order in your county, it would be reasonable for you to request a work-from-home accommodation. Employers will be expected to comply with these lockdown orders, except for essential personnel. If you are an essential employee, read my guidance here.

However, if you are in a place where there is no lockdown order, the following will apply to you:

If you self-quarantine because you fear going into public places in general, you may not have job protection. If there are not a lot of confirmed cases, and people are generally still working, it may be more difficult to work from home. However, it would generally be reasonable to lodge complaints about an unsafe work environment even if there is no one affected at work, knowing know what we know about the virus and how easily it spreads. Other reasonable complaints would include those by employees who work in hospitals, in elder care facilities, or as educators. If you are terminated for raising these issues, you should consult with an attorney.

What Are Your Rights if You Do Have the Virus and Can't Work

- FMLA Rules Provide a Job-Protected Leave of Absence if You Have the Virus

The FMLA would only protect those who have the virus. The FMLA would not protect a person who has no symptoms. The FMLA is a federal law giving eligible employees the right to a 12 week leave of absence to attend to a personal serious health condition, or the serious health condition of a child, spouse or parent. Coronavirus would be a serious health condition.

Sadly, not everyone can receive FMLA Leave. If you are asking yourself, "Am I eligible for FMLA?" you'll need to answer the following math test.

1. Do you work for a company with 50 or more employees within 75 miles of your jobsite?

2. Have you worked for this company for at least one year as of the start date of your leave?

3. Have you worked for more than 1250 hours (about 24 hrs/week) as of the start date of your leave?

If you answered yes to all three, you are eligible for FMLA Leave. FMLA is generally unpaid, unless your state provides benefits (like California, see below). The FMLA also secures that this leave of absence will not result in job loss. So once you are cleared to return to work, your employer has to reinstate you to your job. For more information, click here to read my article about FMLA.

What happens if you exhaust your FMLA or sick leave and you are not ready to return to work? You may be eligible for a reasonable accommodation, depending on the employer. Please know employers are not obligated to keep someone employed if they are on a leave of absence and have no idea when they will be returning. However, if you need a couple more weeks to address your medication situation, the employer may need to grant that as long as it's not an undue burden. If you are really needed, they may not be able to keep your job open. If the work they are expecting you to do is not urgent or essential to the operation, you could argue it would not be a burden to keep your job. If you need an accommodation such as an extended leave, you should consult with an attorney.

The FMLA will be expanded starting in April 1st to account for school closures. Please read more here.

- You May be Entitled to Paid Sick Days

On April 1st, new legislation will go into effect regarding paid sick leave. Please read my guidance here.

If the new sick leave rules don't apply to you, some employers have sick leave policies such as PTO, but keep in mind that these are privileges, not rights. I would urge employees who are on sick leave to ask their employers to confirm they have job protection, in writing.

Some cities and states, like California (below) and New York, do have rights to sick days, but many states don't. Before panicking, make sure to educate yourself on your state rights, in addition to reviewing your city's ordinances. To check whether your state provides sick leave, click here.

Unfortunately, even when there is a rule protecting sick leave, it's often only a couple of days. If you need additional days, you should request a reasonable accommodation such as additional days or remote work.

What Are Your Rights if You Have the Virus and You Can Work

- You May Have Job Protection Rights if You Have the Virus

If you have the virus, you may be terminated if you pose a direct threat. If you have the virus but you can and want to keep working, you should request an accommodation. Your employer will reasonably be concerned about your health and would need to take proactive steps to keep you removed from the jobsite. If it does not do so, it may risk liability of others getting infected. The employer may put you on a leave of absence or terminate you even if you do not agree, as long as the employer is acting on the basis of a direct threat to the health and safety of others. The EEOC issued guidelines regarding what would constitute a "direct threat" - "assessments of whether an employee poses a direct threat in the workplace must be based on objective, factual information, not on subjective perceptions or irrational fears." There needs to be an "imminent risk" of potential harm. The EEOC defers to the CDC guidance on what would constitute an imminent risk. The employers will be reviewing and applying these rules. This guide also gives information about issues such as mandatory testing, which I do not cover here. At the very least, the employers will be expected to be constantly monitoring the CDC instructions on specific localities at issue. The employer will likely get more leeway than under usual circumstances considering the lack of clear information on this virus. It's important you provide your employer with any and all medical notes regarding your symptoms or limitations.

If your employer fears you have the virus, and intends to either put you on an unpaid leave or terminate your employment, you should first ask for alternative accommodations if you want to keep drawing a paycheck. Generally, employers can only terminate employees with disabilities if they cannot be reasonably accommodated. If you feel like you can do the job remotely, discuss your concerns with your employer and request a remote work accommodation. If your employer grants it, make sure to actually work while you're home. If you are treating this remote work accommodation like a sabbatical, you can be fired for insubordination. If you are able to work, you should be paid. There are specific rules regarding payment for exempt positions. Ask your employer which rules apply to your paychecks. If you are too sick to work, you may need to abandon your job and go on disability. This decision should be made by you and your doctor.

Additional Guidance

- Discrimination Rights Protect Asian Workers

Discrimination against employees of Asian origin is escalating. There should not be an adverse employment action taken against an employee of Chinese origin just because that person has Chinese roots. An employee of Chinese origin may not be excluded from work events if there is no indication that employee recently visited China or was visited by Chinese relatives. That would be an employment decision made on racial bias. However, if that person actually recently visited China, the employer's fears may be founded, and adverse actions may be inevitable.

- Your State May Provide Additional Protections

Some states will provide protections in addition to the national minimum. Because I am a California attorney, I will briefly outline the additional protections under California law. To read my in-depth article about California rules, click here. For other states, make sure to check your state websites. California employees:

- are entitled to three paid sick days per year, which may be used to care for a close family member. An employer may not retaliate for use of these days.

- may be eligible for unemployment benefits if their employers cut their hours

- may be eligible for disability benefits if they have the virus and are on a leave of absence

- may be eligible for paid family leave benefits if they care for a family member who has the virus, for up to 6 weeks (8 weeks starting July 2020).

- may be able to cooperate with their employers and implement a work sharing program

- may be entitled to additional sick days under their City's policies, such as San Diego and San Francisco.

- may be entitled to job-protected time off for school closures.

Here is more information about your benefits in California.

- Your Union May Provide Additional Protections

If you work for an employer with a union, you may be eligible for additional protections such as an extended leave of absence or a substantial amount of sick days. If you have questions about your rights, you should contact your union representative and review the Collective Bargaining Agreement.

What Can I Do to Protect My Job?

It is scary that our jobs may be affected if our employers start cutting costs, dismiss non-essential employees, or take extreme precautions out of fear of the virus spreading. I'm concerned that these lay-offs may be premature and based completely on speculation. You can protect yourself by keeping open lines of communication with your employer. Assure them that you feel healthy and that you are ready, able and willing to do the job. Offer alternatives such as remote work, reduced schedules or job sharing. Cooperate with your employer and come up with creative solutions that are feasible for everyone involved. You'll want to be on the lookout for any of these accommodations to be applied in a discriminatory fashion, like remote work being offered disproportionally to male employees because the employer assumes the women will be more distracted at home. If there is a temporary mass lay-off due to supply chain disruption, ask to be put on the re-hire list.

DISCLAIMER - This blog is for educational purposes and to give general information and a general understanding of the laws relating to employment law. It is not intended to provide specific legal advice, nor should you use it for that purpose. By using this blog you understand there is no attorney client relationship between you and the Momattorney or Gruenberg Law and you should not use this blog as a substitute for competent legal advice from a licensed attorney in your state. We don't know anything about your particular situation, and the law has many exceptions. If you have a dispute with your employer, you need to consult with an employment lawyer.

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