The coronavirus (COVID-19) outbreak has changed the work situations for millions of people throughout North Carolina.  In this time of crisis, Gibbons Leis, PLLC is particularly concerned about protecting workers’ employment rights.  We have prepared a set of FAQs to explain how federal, state, and local laws can protect your job, your wages, and your safety.

  1. If a family member or I become sick with the coronavirus, am I allowed to take sick leave and will my job be protected?

The Families First Coronavirus Response Act (FFCRA) is an emergency law enacted because of the Covid-19  This law allows employees who work for employers of less than 500 employees to take up to 80 hours of emergency sick leave (although certain provisions of the FFCRA may not apply to employers with fewer than 50 employees.)  An employee may take emergency sick leave under the FFCRA if he or she:

  1. is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
  2. has been advised by a health care provider to self-quarantine related to COVID-19;
  3. is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
  4. is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
  5. is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19; or
  6. is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

Under the FFCRA, an employee qualifies for expanded family leave if the employee is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19.

How much leave does the FFCRA provide?

For reasons (1)-(4) and (6):  A full-time employee is eligible for 80 hours of leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period.

For reason (5):  A full-time employee is eligible for up to 12 weeks of leave (two weeks of paid sick leave followed by up to 10 weeks of paid expanded family & medical leave) at 40 hours a week, and a part-time employee is eligible for leave for the number of hours that the employee is normally scheduled to work over that period.

Am I entitled to pay under the FFCRA?

For leave reasons (1), (2), or (3):  Employees taking leave are entitled to pay at either their regular rate or the applicable minimum wage, whichever is higher, up to $511 per day and $5,110 in the aggregate (over a 2-week period).

For leave reasons (4) or (6):  Employees taking leave are entitled to pay at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $2,000 in the aggregate (over a 2-week period).

For leave reason (5):  Employees taking leave are entitled to pay at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $12,000 in the aggregate (over a 12-week period).

 

  1. Can my employer fire me if I become infected with the Coronavirus?

As described in FAQ 1, the FFCRA and the FMLA permit qualified employees to take protected leaves of absence for conditions related to the Coronavirus.  The FFCRA and the FMLA also contain anti-retaliation provisions that prohibit employers from retaliating against employees who utilize the FFCRA or the FMLA.  The more difficult issue is whether any protections exist for employees who contract the Coronavirus and exhaust their allotted leave under the FFCRA or the FMLA and cannot return to work.  In these circumstances, it may be lawful for an employer to terminate the employment of an employee who utilizes all of the protected leave provided under the law.

The Americans with Disabilities Act (ADA) prohibits discrimination against individuals with a disability.  In certain circumstances, an employee who has an underlying condition exacerbated by the coronavirus (for instance, asthma or a heart condition) may be considered disabled.  The ADA defines a disability as a physical or mental impairment that substantially limits one or more major life activities, a history or record of such an impairment, or a perception by others of such an impairment.  Besides prohibiting discrimination against people with disabilities, the ADA requires employers to provide reasonable accommodations for such individuals, including the possibility of working remotely.

 

  1. Do I have the right to work from home if I'm uncomfortable reporting to my job, even if I am not sick?

Generally, there is no legal right to remote work, 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 work remotely as an accommodation under the ADA, depending on whether working from home is reasonable under the circumstances.

 

  1. May I work from home to care for my children who are at home because of school or childcare closings?

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 child care needs related to COVID-19.  These payments are subject to limits on maximum benefits as set forth in FAQ 1.

 

  1. If my employer requires me to work from home, am I entitled to be paid for that time?

Yes.  Generally, if you are a salaried employee and you work any portion of the week, you must be paid your regular weekly pay.  Hourly employees who work from home are entitled to be paid for all hours worked, including overtime hours.

 

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

File a claim for North Carolina unemployment benefits with the North Carolina Department of Employment Security (DES).  On March 17, 2020, Governor Cooper issued Executive Order 118 announcing changes to unemployment insurance benefits for individuals who are out of work as a result of COVID-19.  The order pertains to individuals who are separated from employment, who have had their work hours reduced, or who are prevented from working due to medical condition caused by COVID-19 or due to communicable disease control measures.

The following changes to the North Carolina unemployment benefit process are in effect for individuals eligible for benefits due to COVID-19:

  • Waiting Period. Normally, individuals do not receive payment for the first week of their claim for unemployment—this is the one-week waiting period. The one-week waiting period is waived for people filing as a direct result of COVID-19.

Note: After you file your claim, your last employer is permitted 10 days to respond to DES about your claim. No payment will be released until after this 10-day period. If there are no issues with a claim, individuals typically receive payment within about 14 days of filing their initial claim.

  • Work Search Requirements.  Executive Order 118 allows some requirements to be waived for people filing for unemployment due to COVID-19. If you are filing due to COVID-19, you may answer ‘yes’ to the following question on the Weekly Certification: ‘Did you look for work?’

Note: Requirements for performing a work search and being able and available for work are still in effect for individuals filing for unemployment due to reasons other than COVID-19. 

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

 

  1. What if my employer offers me a severance agreement?

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

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