18 March 2020
18 March 2020,
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Employee Rights Amid the COVID-19 Pandemic

Employee Rights Amid the COVID-19 Pandemic

We have been receiving numerous inquiries related to employer actions taken in light of the current COVID-19 pandemic. Our team at Caffarelli & Associates Ltd. Is constantly monitoring developments and stands ready to advise employees affected by this crisis.

The Families First Coronavirus Response Act

On March 18, 2020, the Senate approved “The Families First Coronavirus Response Act” after having passed in the House four days earlier. As of now, the bill is awaiting President Trump’s signature. This is just the first of what may be several tailored initiatives taken to provide some measure of security to the nation’s workforce in light of the pandemic. The Families First Coronavirus Response Act would, among other protections, provide certain employees two weeks paid emergency sick leave and expand upon eligibility requirements under the FMLA to take job-protected leave if quarantined or caring for a child whose school has been closed.

However, while waiting for President Trump’s signature on the legislation, employees are not without protection based on preexisting law.

Current Legal Protections for Employees

There are countless scenarios that may leave employees wondering about their rights. Workplace legal issues may arise in relation to some of the following scenarios:

Wage and Hour:

• An employee cannot work because teleworking is not an option and the employee can no longer physically come in to work because of the coronavirus.

Whether an employee is entitled to continued compensation depends on an employee’s status under the Fair Labor Standards Act (“FLSA”). For hourly nonexempt workers, an employer is generally not obligated to pay an employee when no compensable work is performed. For salaried exempt workers, the FLSA requires employees to be paid his or her full salary unless the business is closed for at least a full workweek and the person performs no work at all.

It may also be permissible for an employer to require employees to use accrued PTO or sick days for the time being. If an employer does not have its own PTO or sick policy, an employee may be entitled to paid sick leave under the Chicago Sick Leave Ordinance.

The Family Medical Leave Act (“FMLA”):

• An employee must miss work due to sickness or stress, or needs to take care of a family member due to the coronavirus.

Whether an employee is entitled to job protected leave in this scenario is very fact dependent. Staying home to avoid getting sick is generally not a qualifying reason under the FMLA to take job protected leave. Likely, it will depend on whether the employee or a family member being cared for has tested positive for coronavirus and the severity of his or her case. The FMLA also covers mental health conditions that rise to the level of a “serious health condition”; whether an employee is protected by the FMLA would depend on the severity of the employee’s anxiety or other mental health related symptoms.

Occupational Safety and Health Act (“OSHA”):

• An employee is required to report to work and will be working in close proximity to others, putting him or her at risk of contracting COVID-19, and the employee refuses to do so and is subject to retaliation.
• An employee is required to come in to close contact with another person who has tested positive for COVID-19 and the employer failed to properly inform the employee.
• An employee reports an unsafe working condition related to COVID-19 to the Occupational Safety and Health Administration and subsequently faces an adverse employment action.

Employers are obligated to provide safe and healthful workplaces for their employees, and under certain circumstances employers are prohibited from requiring employees to work in hazardous workplaces. The Occupational Safety and Health Administration issued standards for employers to comply with as it relates to COVID-19. Employees may be protected by OSHA from retaliation for raising concerns about safety and health conditions, or possibly even for refusing to work in a hazardous workplace.

Discrimination:

• An employee faces discrimination on the basis of race or national origin, relating to the COVID-19 outbreak beginning in China.

An employee is protected from discrimination and retaliation under Title VII of the Civil Rights Act of 1964 and the Illinois Human Rights Act (“IHRA”).

Disability accommodations:

• An employee whose preexisting condition renders them “high risk” if they were to contract the virus is asked to come in to work despite the employee’s requests to telecommute or take a short leave.

Generally, contracting a temporary virus like COVID-19 would not ordinarily implicate the Americans with Disabilities Act (“ADA”) or IHRA. However, for employees who have a preexisting condition that renders them “high risk” if they were to contract COVID-19, a request to telework could very well be considered a “reasonable accommodation” under either the ADA or IHRA.

Workers Adjustment and Retraining Notification Act (“WARN”):

• An employee was terminated in a mass layoff due to the COVID-19 pandemic

The WARN Act requires that the employers with 100 or more employees to provide at least 60 days of written notice to certain employees of the intention to lay off more than 50 employees during any 30-day period as part of a plant closing.

We will continue to provide valuable counsel to all manner of workers during the COVID-19 pandemic, and will be equipped with the most up-to-date knowledge of the employee protections in effect. For further information please visit www.caffarelli.com.

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