Know Your Rights: COVID FAQs

The FFCRA provides paid leave for parents who need to care for their children because schools and daycares are closed due to COVID. Any employee working for a qualified company with under 500 employees may use the Emergency Family and Medical Leave Extension Act (EFMLEA) to take up to 10 weeks of paid leave to care for their child whose school is closed. Once you use the ten weeks, you may then use another two weeks of paid leave under the EPSLA.

Of course, employees may also use paid time off or employer-approved unpaid time off.

Benefits paid under the FFCRA get paid at a percentage of your regular wages. You receive 2/3 of your regular pay up to $200 per day. The government caps the benefits at $10,000.

However, if any of the following conditions exist, your employer is not required to pay you:

• You do not work for a qualified employer.
• You have exhausted your FFCRA benefits.
• Your employer chooses not to utilize the voluntary paid leave provisions in 2021.

Once you exhaust your EPSLA and EFMLEA benefits provided by the FFCRA, you may have additional options to take leave from work due to COVID.

If you exhibit COVID symptoms or are undergoing treatment for COVID, you may qualify for temporary disability.

You may also use paid time off or unpaid time off to deal with your own COVID illness or care for a family member or friend. This time can also help continue to care for your child whose school or daycare is closed.

The CDC, Department of Labor, and OSHA agree that anyone with COVID symptoms, awaiting COVID testing results, or Diagnosed with COVID must quarantine. They must quarantine for at least ten days and show reduced symptoms and be fever-free without fever-reducing medication for at least 24 hours before returning to work.

Based on these guidelines, your employer cannot force you to work if you have COVID.

When COVID started, people were told the virus came from China. As a result, many people wrongly assumed Asian individuals would spread the disease. This concept was wrong. Additionally, acting on it violated National Origin Discrimination laws in the United States.

Therefore, your employer cannot force you to take a leave of absence because of your Asian descent.

Many times, when offering employees the option to go back to work, employers think they are respecting elders by refusing them the right. People over age 65 are at a higher risk of having a bad case of Coronavirus. Therefore, employers think they are trying to protect their older employees.

However, even with good intentions, employers cannot decide to refuse you the right to return to work because of your age.  Doing so violates the Age Discrimination in Employment Act (ADEA).

The WARN Act requires employers to give advance notice to employees of mass layoffs in most cases. The federal law requires employers to provide at least 60 days’ notice.

Each state has different requirements regarding mass employee layoffs and the necessary amount of notice, even in the face of a pandemic.

The WARN Act only applies to businesses with more than 50 employees receiving a layoff in which 33% of the workforce is let go. The layoff must last longer than six months. Furthermore, it cannot relate to a temporary assignment ending.

The WARN Act may get waived if the employer did not have notice that a layoff was imminent, such as the case with many natural disasters. COVID layoffs may or may not qualify for a WARN Act exemption. If your employer saw the business failing due to COVID and tried to stay afloat, he may owe you notice that a layoff could come in the near future.

However, if the employer did not have any way of knowing COVID would ruin his business or if he thought the layoff would be a temporary measure, the WARN Act exemption might apply.

An employer is never obligated to provide you with a Severance Agreement. A severance agreement usually protects your employer in exchange for financial incentives for the employee.

In the event of a COVID layoff, businesses are still not required to provide a severance agreement to any employees. However, if your boss offers one to you, he must offer the same type of agreement to all employees from the same department facing the same layoff.

If your employer offers employees over 40 an opportunity to receive a severance agreement in exchange for voluntarily leaving the company, it may be considered discriminatory.

The same concept applies to any employee offered voluntary leave in exchange for a package based on specific characteristics, such as race, religion, color, or any other protected class.

Medical facilities are extremely high-risk areas for COVID. Medical personnel is at an extremely high risk of coming into contact with and contracting Coronavirus. Therefore, OSHA mandates these employers take every safety precaution necessary to protect their employees from the disease.

Hospitals and medical facilities must provide PPE equipment as available to their employees. They must set up hand washing and sanitizing stations. They must install all recommended safety protocols to keep their staff and patients as safe as possible.

OSHA and the CDC require employers to report any positive COVID cases within the workplace. However, under the ADA, employers have the right to withhold the personal information of any COVID-positive employee or vendor. Simply reporting a positive case is enough information to protect employees and other business associates.

Many businesses will likely close for at least 24 to 48 hours to thoroughly disinfect a workplace after a positive COVID case gets reported.

Once your employer reopens the office, he must ensure safety measures are in place. All employees must wear masks in common areas.

They must take their temperature to enter the workplace. They must maintain a 6 feet social distance from one another. They must go home if they are sick with a fever, cough, or displaying any other COVID symptoms.

If you have a covered disability under the Americans with Disabilities Act, you can ask your employer for reasonable accommodations if you need to work during the pandemic. One accommodation may include the ability to work from home, if possible.

However, if not possible, your employer can attempt to provide other accommodations, such as:

• Provide you a secluded workspace.
• Allow you a position where you can avoid direct contact with clients.
• Provide additional PPE to conduct your employment duties.

Any time put into working for your employer must receive compensation. Whether you work from home, in the office, or on location, you get paid your normal pay rate for every hour worked if you are an hourly employee. If you are a salaried employee, you must receive your typical pay rate as long as you work throughout the week.

Typically, when in the office and leaving for a meeting, you are on the clock. You are going from the office to a work-related meeting and back to the office.

Now that you work from home, you may have to attend a meeting at your business office on occasion. Since you are only traveling to the office for a business-related purpose and it is not part of your typical daily commute, your employer should pay you for your drive time. If you did not have a meeting in the office, there would be no reason for you to commute from your home office, where you regularly conduct business activities.

As a result of Coronavirus, employers must conduct certain health and safety checks on employees before beginning their workday. These checks include a questionnaire and a temperature check. Many people must wait 15 minutes to get through the line and safety checks before they can even clock in for work.

If your employer is conducting health and safety checks, then you are at work and should be compensated. However, if you work in a building and the building management is conducting these checks, your employer does not have to pay you. In those instances, you should arrive at work early enough to make it through the checks and clock in on time.

The rollout of the COVID vaccine is underway. Currently, all medical staff and front-line workers are receiving the vaccine. Soon it will be available to those with pre-existing conditions. By the summer, it will likely become available to the general public.

The Equal Employment Opportunity Commission (EEOC) issued guidance on employers’ right to mandate the vaccine. If receiving the vaccine serves a clear employment purpose or prevents a dangerous situation, your employer can insist you receive it. However, you can refuse the vaccine if you have a qualified medical exemption or a sincerely held religious belief against receipt of the vaccine.

Under the ADA, you can provide evidence of a medical disability that prevents you from obtaining the vaccine.

Under Title VII of the Civil Rights Act, you can provide evidence of a sincerely held religious belief that prevents you from obtaining vaccines.

If you qualify for an exemption, you and your employer must work together to come up with reasonable accommodations to keep you and others safe at work.

Many landlords are dealing with tenants and their inability to pay rent due to COVID-related layoffs. The CARES Act originally provided protections for tenants through June 30, 2020, if they could not pay their rent.

The CDC then passed a temporary moratorium to help protect renters from eviction if they could prove they could not pay their rent due to COVID-related illness or layoffs. The CDC extended the moratorium to provide protections through March 31, 2021.

Many states also provide state-wide tenant protection for anyone suffering from COVID-related illnesses or layoffs. Many of these protections also extend to homeowners and their mortgage payments.

Do you have a COVID-19 related question? Please feel free to call us we missed any information at 800-807-2209 or email us at derek@dereksmithlaw.com for a free consultation. Our team of experienced employment and discrimination lawyers will answer any question you have. We never charge a fee for a consultation.

**COVID-19 has changed the way the world operates. Businesses have found a new way to operate while following safety codes and working to keep people healthy.

A new normal does not give employers the right to ignore your rights to a safe and healthy workplace. A new normal does not allow landlords the right to take advantage of you during your time of need.

The dedicated team of discrimination, sexual harassment, and employment and labor lawyers at the Derek Smith Law Group have developed this list of FAQs to help answer your questions during this already challenging time.

Our questions and answers are current through the last update made to his publication. As new laws and regulations become available, our team will update this page accordingly. This page was last updated on February 10, 2021.**