While COVID-19 is a public health crisis, it has also become an economic crisis with devastating effects for workers across the nation, and especially in the Pennsylvania and Ohio regions. COVID-19 has left many vulnerable workers questioning what protections they have against employer actions linked to the pandemic. In uncertain times, it is often the most vulnerable who suffer because they are unsure of the legal rights and protections available.
Here are some answers to the most often asked questions. If you have other questions, please speak with one of our Employment Lawyers.
Under the Families First Coronavirus Response Act (FFCRA), enacted and signed into law on March 18, 2020, and effective April 2, 2020, many employees will be entitled to paid sick leave benefits for a limited time. After that, paid time off will be limited to those who need to be absent from work because their child’s school is closed.
Q. Who is entitled to receive Emergency Paid Sick Leave (Paid Sick Leave) benefits?
A. Beginning on or about April 1, 2020, employees who work for employers with fewer than 500 employees can receive Paid Sick Leave if they cannot work due to:
1. Their quarantine for COVID-19 ordered by a health authority;
2. Their quarantine for COVID-19 or on the advice of a health care provider;
3. Their own COVID-19 symptoms while seeking a medical diagnosis;
4. Caring for a quarantined individual; or
5. Caring for a son or daughter due to coronavirus school or care center closures.
Q. Does that include public employers as well as private employers?
A. Generally, yes, although there are some special rules for certain public employers. Check with an employment lawyer if you are not sure.
Q. I cannot work at my office or plant. Can I still collect Paid Sick Leave if I can do my job working from home?
A. No. You must be unable to work or telework to receive emergency Paid Sick Leave.
Q. I just started my job two weeks ago. Do I have to accrue Paid Sick Leave before I can use it?
A. No. If you are otherwise eligible for Paid Sick Leave, you can use all of it right away.
Q. How much Paid Sick Leave do I get?
A. You are entitled to up to 10 days of paid sick leave, for the number of hours that you were regularly scheduled to work. If you are salaried, you will receive up to 80 hours of Paid Sick Leave.
Q. What is the amount of paid sick leave?
A. Paid Sick Leave is paid at your regular rate of pay. However, it is capped at $511 a day if you cannot work due to quarantine for your COVID-19 illness or you have COVID-19 symptoms and are seeking a medical diagnosis. It is capped at $200 a day if you cannot work because you need to care for a quarantined individual or children at home due to a coronavirus closure.
An employee earning $50,000 per year who cannot work because of his own COVID-19 illness is entitled to $191/day in paid sick leave ($50,000/261 work days per year).
An employee earning $60,000 per year who cannot work or telework because he needs to care for children home from a closed school, is entitled to $200/day (the lesser of $230 ($60,000/261) or $200).
An employee earning $60,000 per year who cannot work because of her own COVID-19 illness is entitled to $230/day in paid sick leave ($60,000/261 work days per year)
Q. Is there any paid leave after I use up my emergency Paid Sick Leave?
A. Yes. You can receive emergency paid Family and Medical Leave (Paid FMLA Leave), but only if:
• There is a public health emergency; and
• You work for an employer of 500 or less; and
• You have been employed at least 30 calendar days; and
• You cannot work (or telework) because you need to care for a son or daughter under 18 years who is home due to a coronavirus related school or care center closure.
There is a public health emergency right now. Therefore, you can receive Paid FMLA Leave if you meet the other three conditions.
But, if you cannot work due to your own illness, you can take FMLA leave, but it will not be paid.
Q. How much is Paid FMLA Leave?
A. Paid FMLA Leave is paid at your two thirds of your regular rate of pay, but is capped at $200 per day.
Q. How long can I receive Paid FMLA Leave?
A. You can receive up to 10 weeks, or 50 days of Paid FMLA Leave, again at the number of hours you were regularly scheduled to work.
Q. My employers FMLA policy says I must use my vacation and paid time off when I take Family Leave. Does that mean I have to use my employer-provided paid time off before I use Paid FMLA leave?
A. No. Under the Emergency FMLA Paid Leave Act, you can take Paid FMLA Leave as soon as you’re eligible for it, unless you elect to use employer paid time off first. That is, your employer cannot require you to use up employer paid leave first.
Q. My company employs fewer than 50 employees, which means I am not entitled to normal FMLA coverage and have no guarantee that I can return to work after my need for leave ends. Will I be able to return to work at the end of a coronavirus related leave?
A. Yes, unless your position no longer exists because of coronavirus related changes where you work, like the elimination of your position, your employer tries but fails to return you to an equivalent position and your employer makes reasonable efforts to contact you during the following year if an equivalent position becomes available.
Q. I am glad that I will be able to receive Paid Sick Leave and Paid FMLA leave but it seems like it will put a big burden on my employer. How will my employer be able to pay for this new benefit?
A. Employers will be entitled to a tax credit for qualifying Paid Sick Leave and Paid FMLA Leave. Employers can apply this credit to the payroll taxes that they withhold from your pay, as well as the payroll taxes that they must match for your pay. After that they can file with the IRS for any un-reimbursed Paid Sick Leave or Paid FMLA Leave, which the IRS will treat as a tax refund.
Q. Can my employer fire me because I ask to take paid sick leave, or because I need to be off on leave to care for a sick parent, or a child whose school has closed?
A. No. Both the FMLA as well as the Emergency Paid Sick Leave Law specifically forbid retaliation for either taking or asking to take such leave. In addition, requesting sick leave for yourself is most likely asking for a reasonable accommodation under the Americans with Disabilities Act, and it is illegal to retaliate for seeking such accommodation
Q. Can my employer fire me because I have COVID-19?
A. No. Under the Americans with Disabilities Act, (ADA), COVID-19 may be an actual disability–in its active state and, in the absence of mitigating measures and treatment—it substantially limits a major life activity or bodily function (e. g. respiratory function). The fact that the disorder is temporary does not control.
Moreover, even if COVID-19 is not an actual disability, it can be a “Regarded as” disability—if an employer believes—correctly or incorrectly—that you have COVID-19 and takes adverse action against you, unless your employer can show that the condition was both transitory (likely) and minor (unlikely)
An employer likely violates the ADA if it fires you on the basis of COVID-19 because it likely is a disability, and reasonable accommodations will likely address any safety concerns.
You employer likewise violates the ADA if it fires you because it mistakenly thinks you have COVID-19 despite information that you do not.
Your employer may also violate the ADA if it fires you because of your association with someone else who has COVID-19 because employer leave policies will likely address safety concerns.
Q. Can my employer fire or lay me off if it knows I do not currently have COVID-19, but fires or lays me off because it fears I may get it in the future.
A. Most likely the employer can do this because the ADA does not protect the potential of a person getting sick.
Q. What can my employer legally ask me about my health condition?
A. Under the ADA an employer cannot ask an asymptomatic employee if he or she has medical conditions that would make them especially vulnerable.
Q. Can my employer tell others that I have a medical condition?
A. No. Employers must maintain all information about an employee’s illness as a confidential medical record.
Q. I was working with an accommodation for my non-COVID-19 disability. Can my employer stop that accommodation?
A. No. During a pandemic, an employer must continue reasonable accommodations for employees with known disabilities that are unrelated to the pandemic, baring undue hardship.
Q. My company is working at home. But I have a disability that affects my ability to use a computer. Must my employer accommodate that?
A. Yes. Workers with communication disabilities may need additional features to make teleworking successful, like a larger screen or screen-reader software for an employee with low vision, or video relay or video remote interpreting for employees with hearing disabilities.
Q. I am afraid that if I physically go to work I may contract coronavirus. My employer tells me I must come in and fires me when I do not. Does the law protect me?
A. Most likely, especially if you work for a non-life-sustaining business. Although Pennsylvania employers can fire an employee for good, bad or no reason, it cannot do so if the firing would contravene the public policy of the Commonwealth. The Governor’s instruction to work from home, even if not mandatory at this time, is a clearly recognized public policy and if an employer can fire an employee for complying the public policy advanced by the Governor’s instruction would be less effective. Employers may not fire an employee because that employee opposed or refuse to engage in actions that threaten public or workplace safety. If you are considering this course of action, speak with an Employment Lawyer first.
Moreover, the OSHA General Duty Clause requires employers to furnish each worker “employment and a place of employment free from recognized hazards that are likely to cause death or serious physical harm.” An employer who attempted to force an employee to come to work when that employee has justifiably self-quarantined–or where, for example, another employee was a known carrier–may be violating OSHA. If an employee opposed her employer’s efforts to force her to work under those circumstances, she may be protected from retaliation under Section 11(c) of OSHA, which prohibits an employer from discriminating in any manner against an employee because she, among other things advances a claim of retaliation under the OSHA act.
Q. My co-workers and I were talking in the lunchroom about the employer’s failure to provide adequate hand washing facilities. Our boss heard this and told us to mind our own business. Can the employer discipline us for talking about such things?
A. No. Under the Labor Management Relations Act, and related labor laws, even in a non-union setting it is illegal for an employer to fire or discipline when people act in concert to address health and safety concerns.
Q. What are my employer’s responsibilities to make the workplace safe?
A. Under OSHA, the OSHA general duty clause requires employers provide a workplace free from known hazards. That includes known exposure to infectious diseases. OSHA requires employers to take reasonable actions to protect workers from workplace exposure to coronavirus including taking reasonable hygiene and sanitation measures.
Q. I am working at home for my employer. I receive email and text messages from my supervisor all day and most of the evening. I am expected to respond within 15 minutes to these communications. Does my employer have to pay be for this time?
A. Yes. If you are a non-exempt employee you must be paid for all time in which you are on call as well as any time you are performing actual work, whether that be at the office or at home. If you are a salaried employee, you must be paid even if at home, and even if you do a little work during the regular work week.
Q. Can I collect unemployment if my boss furloughs me over the coronavirus?
A. Yes, qualified workers in Pennsylvania can collect unemployment if their hours are reduced or they are furloughed from their job. On Friday, March 20, 2020, the Pennsylvania Office of Unemployment Compensation released new information on UC Benefits & COVID-19. If you are out of work because your employer closed (temporarily or otherwise) because of COVID-19, and you otherwise meet unemployment requirements, you would be eligible for unemployment compensation. Beginning March 16, 2020, work search and work registration requirements have been temporarily suspended for all UC claimants. In addition, the waiting week requirement was temporarily suspended, meaning benefit payments “should arrive within two to four weeks of filing your initial application.” Importantly, unemployment benefits are also available to qualified individuals who cannot work because they have COVID-19 or are quarantined due to COVID-19. However, unemployment compensation is not available to employees who must stay home to care for a child due to school or day care closures.
Q. If I was exposed to and caught COVID-19 at work are any benefits available?
A. Yes. According to the Pennsylvania Department of Labor, if you were exposed to COVID-19 at work and became sick, you may be entitled to receive Workers Compensation benefits. You should notify your employer to file a “disease-as-injury” Workers Compensation claim or an “occupation disease” Workers Compensation claim. Workers Compensation covers almost all Pennsylvania employees, regardless of employer size, and employees could be eligible for lost wages at a reduced rate and medical care among other benefits.