The COVID-19 epidemic has led to workers variously being laid off, temporarily furloughed, asked to work at home, and asked to report to workplaces that offer varying degrees of wellness checks, social distancing and personal protective equipment like masks.
What rights do employees have to protect their health and their paychecks during this crisis, especially as many states begin to partially reopen? What if you or a family member gets sick? What if you’re asked to return to work, but your employer doesn’t have procedures like temperature checks or provision of masks?
There are a variety of federal, state and local laws protecting workers during this Covid-19 pandemic that employees might not know about — and employers either don’t know about, either, or choose to circumvent. Let’s explore them.
Rights Regarding Temporary Leave
Many if not most employees who become ill or must care for a family member have had the right since 1993, under the federal Family & Medical Leave Act, to take up to 12 weeks of unpaid leave with continued health insurance benefits and expect that they will return to the same or an equivalent job. Those eligible for FMLA must have worked for at least a year, at least 1,250 hours in the previous year, and for an employer with at least 50 employees within a 75-mile radius.
The Families First Coronavirus Response Act of 2020 allows up to 80 hours of emergency sick leave for those who have worked at least 30 days for employers with less than 500 employees, if they are ordered into or advised by a health provider to quarantine or self-isolate, or are caring for someone in that situation. This provision also applies if an employee is experiencing coronavirus symptoms and is still trying to obtain a medical diagnosis, or if they are caring for a child due to school or child care being closed or unavailable.
Those who are ordered into quarantine or still seeking a medical diagnosis receive up to 80 hours of sick leave at full pay; in contrast, those caring for someone subject to quarantine, or caring for a child who must be home, receive two thirds of their regular rate. Both Chicago and Cook County law require paid sick leave—an hour for every 40 hours worked—to most hourly employees (other states and local areas have different laws, although many have expanded worker protections through legislation and executive orders).
What Employers Can and Can’t Demand
By and large, employers are able to dictate that someone who wants to work from home come into the workplace, or conversely to dictate that they stay at home. Similarly, employers can require employees to work from home for health and safety reasons, unless it can be established that it would amount to discrimination based on a disability. For those coming into work, they can require that employees report COVID-19 symptoms or submit to health checks as they see fit, although temperature screenings must be conducted in a safe, respectful manner, including no-contact thermometers.
Employees do not have a general legal right to telecommute, although those with an underlying disability may seek this right as a reasonable accommodation. Those who refuse to return to work can be fired, although they can file a protest with their local chapter of the National Labor Relations Board; and groups of two or more concerned about workplace safety may have protections under the National Labor Relations Act for essentially going on strike – known as a “concerted activity.”
Those who believe they could be seriously and imminently harmed by workplace conditions can try to make a case for why they should be allowed to refuse to return to work, under the OSH Act’s General Duty Clause, which requires employers to create a workplace unlikely to cause “death or serious physical harm.” The Labor Management Relations Act has similar provisions for “abnormally dangerous conditions.” But both are high standards to prove, especially if some protections like masks or social distancing are being provided.
Employees who raise concerns about health and safety conditions inside their workplaces are protected against employer retaliation by the Occupational Safety and Health Act of 1970, and OSHA’s Whistleblower Protection Program enforces more than 20 industry-specific federal laws that shield employees from retaliation because they reported such concerns.
Employee Pay and Severance
Those who telecommute are entitled to their regular pay; for salaried employees that means the full week’s pay, and for those who are hourly, it means all hours worked including overtime. Some employees are able to obtain reimbursement for the costs of setting up a home office.
Employees who are laid off must receive 60 days written notice if it’s part of a “mass” layoff, and under Illinois law this covers employers of 75 or more employees and worksites of 25 or more. Under state law, employers who maintain health plans must offer notice that those laid off can purchase up to a year of continuing coverage under COBRA. Employers can generally cut hours or pay as they see fit.
Employers may not fire those who get coronavirus and take the leave allowed under FMLA. Those with an underlying condition like asthma or heart disease may have additional protections under the Americans With Disabilities Act, which requires that employers provide “reasonable accommodations” and prohibits discrimination. A doctor’s determination may be required. The Pregnancy Discrimination Act requires employers with 15 or more employees to provide similar accommodations. Several Illinois, Cook County and City of Chicago laws similarly protect employees against discrimination based on disability.
The federal CARES Act granted Americans an additional 13 weeks of unemployment benefits at an additional $600 per week, including gig workers like Uber drivers; states also have varying benefits. Those who quit due to an unsafe workplace will need to document this in detail, and even then, they might not qualify for unemployment.
Get Help from Experienced Workers’ Compensation Lawyer
If you’ve been fired from your job due to voicing concerns about health and safety conditions or not paid for Covid-19 sick leave, speaking with an attorney who represents employees will give you a better sense of your specific rights and how best to proceed on any of these fronts. Peter Wachowski brings more than 25 years of experience in this area. He can be contacted at 866-699-3339 or peter@bellas-wachowski.com.