EMPLOYEE RIGHTS AND THE CORONAVIRUS (COVID-19)

The coronavirus or COVID-19 has brought increasingly unsettling work situations for millions of people throughout the United States. These are challenging times for all of us but that challenge does not allow employers to unlawfully deprive employees of their employment rights. The attorneys at Wiggins, Childs, Pantazis, Fisher, & Goldfarb are determined to continue to protect people’s 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 livelihood.

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Frequently Asked Questions

  1. Do I have any protections if I’m going through hardships due to the coronavirus outbreak?

Congress passed the Coronavirus Aid, Relief, And Economic Security Act (“CARES”), that was signed into law by the President on March 27, 2020.  The CARES Act contains numerous provisions concerning public health and welfare, and direct economic aid to businesses and individuals alike.  In addition, the CARES Act contains some important protections for consumers who may be facing the economic effects of the COVID-19 pandemic.  Among those protections are:

  • Mortgage Relief: About two-thirds of all mortgages are federally backed.  If yours is, a mortgage company or servicer may not initiate foreclosure proceedings for a sixty-day period beginning March 18, 2020.  Moreover, a homeowner with a federally backed mortgage may request and obtain forbearance from mortgage payments for up to180 days.  You can determine if your mortgage is federally backed by looking it up at https://ww3.freddiemac.com/loanlookup/ or https://www.knowyouroptions.com/loanlookup#; by calling 877-622-8525 to determine if your mortgage is FHA insured; or by checking your mortgage documentation for specific language identifying it as a VA loan.
  • Eviction Protection:  The CARES Act forbids the institution of eviction proceedings or the charging of additional fees for late rent payments for 120 days after the Act’s March 27, 2020 enactment date.
  • Student Loan Relief: Federal Direct Student Loans and FFEL loans owned by the Department of Education have had their payment schedules suspended through September 30, 2020.  While the payments are suspended, not interest will accrue, and no collection activity against the borrower may be instituted.
  • Credit Reporting: From January 31, 2020, until 120 days after the end of the national state of emergency, if a creditor has made an accommodation, the creditor shall report that account in the same status as before the accommodation.

A more complete listing of the consumer protection provisions of the CARES Act can be found on the National Consumer Law Center website at https://library.nclc.org/major-consumer-protections-announced-response-covid-19.

  • In addition to the specific provisions of the CARES Act, any contract could be subject to three particular legal doctrines:  (1) force majeure; (2) frustration of essential purpose: and (3) Impossibility of performance.  Force majeure, or act of god, is a defense to contract performance where, because of some calamity outside of the control of the parties, performance is excused.  This doctrine is similar to the defense to a contract where performance is impossible due to conditions that are unforeseen.  Frustration of essential purpose is where contract performance is excused because the contract, even if performed, cannot fulfil the purpose for which it was entered by both parties.  The application of these three doctrines are as varied as the subjects parties contract over, and are highly dependent on contractual language, which may disclaim the defense, and the circumstances of the cases.  If you think one of these may apply to a contractual obligation, consult with an attorney.
  1. Can my employer fire me if I get the coronavirus? What if a family member becomes sick, am I allowed to take time off from work?

The Family Medical Leave Act (“FMLA”) and the Families First Coronavirus Response Act (“FFCRA”), along with other federal laws protect qualified individuals absent from work because of a serious health condition. The FFCRA provides paid sick leave for employees effected by COVID-19 and those serving as caregivers for individuals with COVID-19, as well as an emergency expansion of the FMLA. The 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: (1) subject to quarantine or isolation order or caring for someone who is subject to a quarantine or self-isolation order; (2) advised be a health care provider to self-quarantine due to coronavirus concerns or caring for someone who is advised to self-quarantine; (3) experiencing symptoms of coronavirus and are seeking a medical diagnosis; (4) caring for their child if, because of coronavirus protections, their school or day care has been closed or their childcare provider is unavailable; or (5) 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 (https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave)

Similarly, 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.

  1. Do I have the right to work from home if I’m uncomfortable or fearful of becoming infected by reporting to my job, even if I am not sick? What if I need to 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 or working from home. Employers have the right to decide the terms of employment. Depending on whether working from home is reasonable under the circumstances, such as if you are at a high risk for the coronavirus and your employer deems your job responsibilities can be completed at home, you may have the right to telecommute as an accommodation. Some other possible protections are under the FFCRA, as discussed above, and the Occupational Safety and Health Act (“OSHA”). 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 need related to COVID-19. These payments are subject to limits on maximum benefits and more information is available through the Department of Labor (https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave). Further, employees may be protected from retaliation under OSHA in certain circumstances when they refuse to perform work as directed. Specifically, an employee may refuse an assignment that involves “a risk of death or serious physical harm” if all of the following conditions apply: (1) the employee has “asked the employer to eliminate the danger and the employer failed to do so”: (2) the employee “refused to work in ‘good faith’” (a genuine belief that “an imminent danger exists”); (3) “[a] reasonable person would agree that there is real danger of death or serious injury”; and (4) “[t]here isn’t enough time, due to the urgency of the hazard, to get it corrected the hazard through regular enforcement channels, such as requesting an OSHA inspection.” Each situation is different and OSHA requires employers to take steps to protect employees from “recognized workplace hazards.”

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

Generally, if a company has policies regarding paid leave for those who are forced to take time off in connection with an illness, that policy will dictate the terms of leave. Some states and cities have specific laws that provide employees with access to paid sick leave.

Additionally, 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 leave at 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 leave at 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 child care 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 (https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave).

  1. Can my employer require me to work from home if I don’t want to?

Generally, employers set the terms and conditions of employment, including work location. Which means that an employer can require employees to work from home due to a reason such as business necessity or health and safety. Nevertheless, an employer may not require that certain people work from home because of a perceived or actual disability if it could be considered discrimination based on a disability.

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

Yes! Working from home should be treated the same as working in the office or on the field. Salaried employees must be paid regular weekly pay and hourly employees 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?

Under the federal Workers 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. The WARN Act includes a detailed definition of what constitutes a mass layoff:

  • The employer must have 100 or more full-time employees who each worked more than six of the prior 12 months and averaged over 20 hours a week of work each.
  • 50 or more employees are laid off at a site, and they represent over one-third of the workforce at that site (but if 500 or more employees are laid off at a site, they do not need to meet the one-third requirement).
  • 50 or more employees are let go when a worksite is shut down.
  • Multiple workforce reductions within a 30-day window are combined into one layoff.
  • The 90-day rule combines two layoffs that may not meet the threshold individually.
  • WARN does not cover most government employers.

Remember, 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.

  1. Can an employer withdraw an offer letter or employment agreement because of changed circumstances, like the coronavirus?

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

  1. Can an employer withdraw an unexecuted severance agreement?

Similar to an offer letter or employment agreement, 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 guaranteed.

  1. Can an employer renege upon a fully executed severance agreement or deny payment to an employee based on economic changes at the company?

Generally, a contractual promise to pay is enforceable, and an employer would be in breach of contract if it if reneges on that promise, absent a material breach by the employee. If an employer fails to honor its obligations under a severance agreement, the employee may be able to sue for breach of contract.

In addition, if a company goes bankrupt and cannot pay agreed-upon severance benefits, the affected employee may be able to file a claim in bankruptcy court. In any event, with respect to plant closings and mass layoffs, employees may be entitled to relief under federal and state laws, like the WARN Act as discussed above.

  1. What if my employer or coworkers are discriminating against me because of my race, ethnicity, or national origin?

Unfortunately, the coronavirus outbreak has resulted in some employees reporting negative treatment from employers or coworkers because of their race, ethnicity, or national origin. This is discrimination, and it’s illegal under federal law and many state and local laws. Discrimination has various forms and can negatively affect your hiring, conditions of employment, compensation, and opportunities for promotion. Some examples include derogatory comments, racial slurs, demotion, and termination. If you have any reason to believe that you are being discriminated against because of your race, ethnicity, or national origin, contact an employment discrimination attorney immediately to understand what options you may have.

WCPFG hope this page provides a useful resource for employees to learn how COVID-19 is affecting various aspects of the workplace. This resource is made available for educational purposes only, to provide general information and not to provide specific legal advice or to establish an attorney-client relationship. Remember, the issues related to COVID-19 are constantly evolving. There have been almost daily changes in the governmental guidance and underlying laws, which can impact the analysis of the legal issues related to COVID-19. As such, this resource should not be used as a substitute for up-to-date legal advice from an attorney.

We will continue to update you about your employment rights and protections. Please be safe and do not hesitate to contact an attorney if you have concerns about your workplace rights.

This information was prepared by Kameron M. Buckner and Brian Clark.

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