May 12 2020

Know Your Rights: COVID-19 and the Workplace

Until a little more than a month ago, all was normal. Stores were open, workers were at their jobs, and commerce was humming. Then, with virtually no warning the world changed.

Quarantines went into effect, businesses closed, and commerce ground nearly to a halt.

A record 6.6 million laid off Americans filed for unemployment benefits in just the last full week of March — approximately 10 times the prior weekly record – and now 22 million and counting in all.

COVID-19 has changed the lives and work situations for almost all of us. 

In this time of crisis, The Law Office of Richard S. Cornfeld is particularly concerned about protecting workers’ employment rights and has prepared some FAQs to explain how federal, state, and local laws can protect your job, your wages, and your livelihood.

If a family member or I become sick with the coronavirus, am I allowed to take time off from work?

The federal Family & Medical Leave Act (FMLA) allows a qualified employee to take up to 12 weeks of unpaid leave within a 12-month period if they or an immediate family member requires care for a “serious health condition.”

The law also entitles a qualified employee to continued health insurance benefits and requires their employer to offer them the same or equivalent position when they return.

Qualified employees are those who have worked for at least one year, over 1,250 hours in the prior year, and whose employer has at least 50 employees in a 75-mile radius.

The Families First Coronavirus Response Act (FFCRA) allows employees who work for employers of less than 500 employees to take up to 80 hours of emergency sick leave. An employee may take emergency sick leave under the FFCRA if they are:

 

  • Subject to a quarantine or isolation order, or caring for someone who is subject to a quarantine or self-isolation order;
  • Advised by a health care provider to self-quarantine due to coronavirus concerns or caring for someone who is advised to self-quarantine;
  • Experiencing symptoms of coronavirus and are seeking a medical diagnosis;
  • Caring for their child if, because of coronavirus protections, their school or day care has been closed or their childcare provider is unavailable; or
  • Experiencing similar conditions, as specified by the Secretary of Health and Human Services. 

The rate of pay varies depending on the circumstances and more information is available through the Department of Labor.

Local and state laws may provide even greater protections for employees. Click for information regarding protections for employees in Missouri and Illinois.

Is my employer required to pay me for my time off from work?

Some companies' policies provide paid leave for those who are forced to take time off in connection with an illness.

For those employers, the company policy generally will control the terms of the leave. Also, some states and cities have laws that provide employees with access to paid sick leave.

The FFCRA allows employees of employers of less than 500 employees to take up to 80 hours of emergency sick leave for qualified reasons, as follows:

  • Two weeks (up to 80 hours) of paid sick leaveat the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or
  • Two weeks (up to 80 hours) of paid sick leaveat two-thirds the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or care for a child (under 18 years of age) whose school or childcare provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor.

These payments are subject to limits on maximum benefits and more information is available through the Department of Labor.

Local and state laws may provide even greater protections for employees. Click for information regarding protections for employees in Missouri and Illinois.

Do I have the right to work from home if I'm uncomfortable reporting to my job, even if I am not sick? May I work from home to care for my children who are at home because of school or childcare closings? 

Generally, there is no legal right to telecommuting, as employers have the right to dictate the terms of employment. If an underlying disability places you at high risk for coronavirus, you may have the right to telecommute as an accommodation, depending on whether working from home is reasonable under the circumstances. 

The FFCRA permits employees to take emergency sick leave to care for a child whose school or day care has closed, or where childcare is otherwise unavailable because of coronavirus protections.

In addition, employees may be entitled to up to an additional 10 weeks of leave at two-thirds the employee’s regular rate of pay if an employee is unable to work due to bona fide childcare needs related to COVID-19. 

These payments are subject to limits on maximum benefits and more information is available through the Department of Labor.

Is my employer required to pay the cost of a home office?

Whether you are entitled to reimbursement depends on your jurisdiction and your rate of pay. If the expenses you incur in setting up your home office causes your weekly pay to drop below the minimum wage, you may have a claim under the federal Fair Labor Standards Act (FLSA) and some state wage and hour laws.

Certain states, like California, require an employer to reimburse workers for expenses like Internet access, computers, and cell phones used for work.

What happens if my employer lays me off or cuts my hours?

There are specific laws that protect employees from mass layoffs. For example, under the federal Worker Adjustment and Retraining Notification (WARN) Act, companies must give affected employees 60-days advanced written notice of the mass layoff, worksite closing, or plant closing. 

Some states have their own WARN Acts, including California, Connecticut, Illinois, Hawaii, Iowa, New Jersey, and New York.

Several states and cities require an employer to provide work schedules in advance and must pay the workers when they take away or add shifts. Some laws also require extra pay when employers require workers to work split shifts, and if you are laid off or have your hours reduced, you may be entitled to unemployment benefits, which vary by jurisdiction.

If your employer offers you a severance agreement, it is important to consult with an attorney about what rights you may have and what rights you may be giving up by signing the agreement.

Can an employer withdraw an offer letter or employment agreement because of changed circumstances, like COVID-19?

In general, as a matter of contract law, any offer maybe withdrawn or revoked before it is accepted, unless it is “irrevocable,” which is rarely seen in employment situations. 

Once an offer is accepted unconditionally (before being withdrawn or revoked), it becomes a binding agreement.

Generally, an employer can withdraw a job offer for almost any reason, except a discriminatory one (race, religion, nationality, etc.).

Nonetheless, most offer letters, even if binding, do not provide much in the way of substantive rights for the employee; and most employment agreements provide that the employment is “at will,” so the employer can fire the employee without cause (even before the employment has started).

Under any offer letter or employment agreement, the key issue is whether the employee has any enforceable rights upon termination of employment without cause (e.g., a notice period, severance pay, payment of an accrued bonus, or vesting of deferred compensation).

Even if contractual rights do not exist, an employee might have a claim against an employer who rescinds a job offer under the doctrine of promissory estoppel.

Under that doctrine, some states (including Illinois) allow an employee to seek damages due to withdrawn job offers.

Examples include moving costs that the candidate incurred to relocate for the offer or lost income resulting from quitting prior employment based on the withdrawn offer.

With respect to a person with a disability, an offer may be revoked if the employer can show that the prospective employee would be “unable to perform the essential functions of the job (with or without reasonable accommodation)” or the prospective employee poses a “significant risk of causing substantial harm” to others.

How this analysis may apply to those suffering illnesses from COVID-19 is yet to be seen.

Can an employer withdraw an unexecuted severance agreement?

Ordinarily, a severance agreement can be withdrawn before it is accepted. 

Arguably, the employer cannot withdraw during a stated “consideration period” (21 or 45 days under the Older Workers’ Protections Act).

But even that is not a black letter law and exceptions exist, particularly where the employer is not asking an employee to waive rights under the Age Discrimination in Employment Act.

If you have questions regarding your employment rights during the COVID-19 crisis, call the attorneys at The Law Firm of Richard S. Cornfeld today for a free consultation.