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Law360 (March 23, 2020, 4:30 PM EDT) --
These steps have rocked several industries, such as the hospitality, travel, retail and service sectors, and have also had substantial ripple effects in industries that support those sectors, such as the marketing industry.
COVID-19 has left many vulnerable workers questioning what protections they have against employer actions linked to the pandemic. This article will attempt to address some common questions we have received from workers who have been affected by COVID-19.
Readers should understand that the answers below do not attempt to address any moral obligations that employers may owe their employees, nor do they suggest wise decisions an employer may make to retain valuable employees over the long term. Instead, this article seeks only to outline an employer's existing obligations under federal law relating to COVID-19.
If an employee is quarantined because of COVID-19, are they entitled to paid time off?
In general, the answer to this question is no: Individuals who are quarantined because of COVID-19 are not entitled to paid time off. At the moment, federal law does not require employers to provide workers with paid sick leave (setting aside the question of whether a quarantine would qualify an employee for such leave).
In addition, the federal Family and Medical Leave Act (1) does not entitle workers to paid leave; and (2) likely does not extend to preventative efforts like quarantine. In other words, while COVID-19 likely qualifies as a serious health condition that would entitle a worker to unpaid leave under the FMLA, an individual's efforts to avoid contracting COVID-19 — or avoid spreading the virus — would not entitle her to those same benefits.
Under the Families First Coronavirus Response Act, or FFCRA, signed by the president on March 18 and effective April 2, many employees will be entitled to paid time off due to COVID-19-related quarantine. The FFCRA entitles employees of employers with under 500 employees to up to 12 weeks of leave for, among other things, caring for a child under age 18 if the child's school has closed or the child's caretaker is unavailable due to COVID-19 restrictions.
Ten weeks of that leave must be paid at two-thirds of the employee's normal rate of pay. All full- and part-time employees are eligible if they have worked for an employer for 30 days.
The separate sick leave provision of the FFCRA requires employers with under 500 employees to provide employees with at least two weeks of paid sick leave if they are subject to a government-ordered quarantine order, if a doctor has recommended that they self-quarantine, or if they are showing any COVID-19 symptoms. Alternatively, the bill provides that covered employers must pay employees two-thirds of their normal pay for two weeks if they are caring for an individual or child who is subject to a quarantine.
Can an employer require that their employees use paid sick leave if they are quarantined for COVID-19?
Yes. Because federal law does not require employers to provide paid sick leave, the government also does not regulate an employer's practices with respect to the types of absences covered by that leave. Under the FFCRA, employers would only be required to pay employees during their first 14 days of absence associated with a COVID-19-related quarantine.
Can an employee refuse to go to work if they feel at risk for contracting COVID-19?
Probably not. However, there may be circumstances under which an employee could make such a refusal.
Employers may be required to separate employees who are or should be quarantined (e.g., because of contact with a COVID-19 carrier) from other employees under the federal Occupational Safety and Health Act. The OSH Act's general duty clause, found at Title 29 of U.S. Code Section 654(a)(1), requires employers to furnish to each worker "employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm."
An employer who attempted to force an employee to come into work when that employee had justifiably self-quarantined — or where, for instance, another employee was a known carrier — may be acting in violation of the OSH Act. 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 the OSH Act, which prohibits an employer from discriminating in any manner against an employee because she, among other things, exercised on her own behalf or on behalf of others any rights afforded under the OSH Act.
What paid leave options are available if an employee has to stay home with their children while schools are closed?
Under the FFCRA, parents of children whose schools have been closed due to COVID-19 will be entitled to up to 12 weeks of leave, 10 paid at two-thirds of their normal rate. As set forth above, an employer is not required to pay for the first 10 days of that leave — although an employee may use her paid sick leave, including those days available to her under the FFCRA, to cover that initial period.
Outside of the FFCRA several counties and municipalities already extended paid leave to individuals who are forced to take time away from work to care for a child whose school has been closed due to a public health emergency like COVID-19. Those jurisdictions include New York, New York; Montgomery County, Maryland; San Diego; Chicago; Minneapolis; and Pittsburgh.
What if an employee has to care for a family member who has COVID-19?
The federal FMLA guarantees most workers the right to take up to 12 weeks of unpaid leave to care for a family member with a serious health condition. However, the FMLA only covers employees who have been working for their employer for at least one year, and at least 1,250 hours during the year. Moreover, it only covers employers with at least 50 employees within 75 miles of the employee's worksite.
The expanded protections available under the FFCRA do not extend to workers who find themselves caring for a family member with COVID-19; instead, it is limited to situations wherein a child's school or place of care has closed due to the virus.
Several states, however, do require employers to provide paid family leave to their employees, which would extend to caring for a family member with COVID-19. These include Washington, D.C., California, New York, Connecticut, Massachusetts, Washington, New Jersey, Oregon and Rhode Island.
What protections does an employee have if they are retaliated against for using sick leave due to COVID-19?
As set forth above, under certain circumstances, an employee may be able to advance a claim of retaliation under the OSH Act. In addition, depending on the circumstances of the retaliation, an employee may have a claim for wrongful termination in violation of public policy. Although it is uncommon, courts in some states have found that employers may not terminate an employee because that employee opposed or refused to engage in actions that threatened public or workplace safety.
If an employee requests an extended period away from work to treat her own case of COVID-19, or to care for a child whose school or place of care has closed, she may be protected from retaliation under the FMLA. Moreover, under the FFCRA, employees would be protected from retaliation for taking sick leave or extended FMLA leave for a broad range of situations associated with COVID-19, including self-quarantine.
Is an employer allowed to fire an employee because of the impact COVID-19 has had on its business?
Yes, with limited exceptions. Employers in many industries are likely to be forced to terminate or cut back hours for many workers as a result of the measures being taken to grapple with COVID-19. Employees in 49 of the 50 states are considered at-will, which generally means that an employer may terminate an employee for any reason or for no reason at all, except for an illegal reason.
There are no states that have passed laws prohibiting an employer from terminating an employee due to a substantial disruption to the employer's business like the one caused by COVID-19. Even Montana — the one state in which workers are not employed at-will — permits an employer to terminate an employee for a legitimate business reason.
The primary exception to this general rule arises in cases where an employee is working under a contract. Contractual employees are not at-will employees; the terms and conditions of their employment are set forth in writing.
The most common example of contractual employees are union employees, who have collectively bargained with their employers to secure certain rights and protections. In some cases, those rights and protections may insulate workers from the vicissitudes of the economy and ensure that an economic downturn does not result in them losing their job.
Correction: A previous version of this article incorrectly stated the FFCRA's scope of paid leave coverage for workers caring for family members with COVID-19. The error has been corrected.
Matthew LaGarde is an associate and Carolyn Wheeler is senior counsel at Katz Marshall & Banks LLP.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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