Regardless of industry, the pandemic has changed the way people work. While some have shifted to remote set-ups, unfortunately, many lost their jobs, too. In addition, although the pandemic brought about an economic crisis, it also gave rise to a severe stigma on employees who have or may have COVID-19.

Aside from the many disastrous effects the health crisis has caused on employment, workers also had to question the protections they have against employer issues related to the pandemic.

Such a stigma, however, has encouraged the government and organization leaders to take action. The U.S. Equal Employment Opportunity Commission (EEOC) continues to enforce non-discrimination employment laws amidst the pandemic. These include the Americans with Disabilities Act (ADA), the Rehabilitation Act, and Title VII of the Civil Rights Act.

If you’re an employee, the lack of knowledge of these laws may lead you to be unfairly subjected to the COVID-19 stigma and the violation of your rights. This article will provide you with everything you need to know about the laws related to the pandemic and answers to fundamental questions about COVID-19 employee rights.

Top Employer Law Liabilities

To start, you should learn employers’ existing obligations under federal law concerning COVID-19:

• Workplace safety

The Centers for Disease Control (CDC) and the Occupational Safety and Health Administration (OSHA) released general employer guidance and safety recommendations for certain industries to help prevent workplace exposure to COVID-19 in non-healthcare settings.

These guidelines prevent and reduce transmission among employees and maintain a healthy work environment in general through COVID-19 preparedness, response, and control plans.

OSHA also released updated enforcement guidance on how to make work-related determinations with regards to COVID-19 recordkeeping. According to OSHA, COVID-19 is a recordable illness, and employers can face potential risks if they fail to comply with recording or reporting requirements.

• Wage claims

Given the shift to remote working, employers had to forego traditional tracking methods that determine employees’ breaks and clock out times. Thus, they risk failing to provide both remote and on-site employees claims or pay for all the required meal periods, breaks, and overtime.

Employers must ensure that employees are adequately compensated for all hours worked. They should also comply with federal, state, and local laws that require them to reimburse employees for certain remote work-related expenses such as mobile phone, internet, or other equipment costs to avoid wage violations.

Employers can also encourage their managers to set clear expectations with employees, do regular check-ins, promptly address issues, and other supervisory best practices that maintain clear communication.

• Leave complaints

The Family and Medical Leave Act (FMLA), Families First Coronavirus Act (FFCRA), and other state or local laws ensure that employers comply with their obligations and provide employees with protected paid leave appropriately.

The FMLA, in particular, requires employers to grant employees up to 12 weeks of unpaid leave each year for any serious health condition, while employers with fewer than 500 workers employees should provide compensated time off for reasons linked to COVID-19 under the FFCRA.

Such laws are in place to prevent employers from denying leave requests, miscalculating pay, requesting improper documentation, or objecting against taking leaves related to COVID-19. In effect, employers are also obliged to refrain from taking personnel actions that may lead to discrimination or retaliation lawsuits from the workers affected.

• Discrimination offenses

Due to the pandemic, workers may find it difficult to adhere to return-to-work protocols, especially those with pre-existing medical conditions that make them vulnerable to COVID-19. Furthermore, it may be difficult for employers to refuse disabled workers from continuing to work from home.

Employers must ensure they comply with the ADA, Rehabilitation Act, and other EEO laws. They should also follow the required protocols under EEOC guidance with regards to employees vulnerable to COVID-19. This guidance allows employers to administer COVID-19 tests and implement safety measures before allowing employees to return to the workplace.

Discrimination laws are also in place for employees to challenge employer actions that have a distinct impact on them due to their national origin, age, race, color, sex, religion, or class. If your employer subjects you to heightened screening standards just because you are of a particular descent or demographic, you may want to reach out to a workplace discrimination lawyer to study your case further.

• Worker Adjustment and Retraining Notification (WARN) Act violations

The COVID-19 outbreak had pushed many employers to implement sudden layoffs and workforce reductions to make up for business losses. These made it difficult for them to provide mandatory notice to affected employees. In effect, these employers failed to adhere to obligations set forth by the federal Worker Adjustment and Retraining Notification (WARN) Act.

The WARN Act requires employers with 100 or more employees to give at least 60 calendar days’ notice before closing or laying off at least 50 affected workers. Those that fail to do this have to give employees back pay and other penalties. 

There is, however, the “unforeseen business circumstances” exception in COVID-19-related cases, which applies to plant closings and mass layoffs caused by circumstances that were not reasonably foreseeable at the time that 60-day notice would have been required.

Even then, when invoking this exception, a covered employer is still required to give as much notice as possible. They also need to present a reason for giving less than 60-days’ notice along with other required elements of a WARN notice.

Laws that Uphold COVID-19 Employee Rights

It’s important to know the law to avoid falling victim to rights violations. The following protect employees from violations of their employee rights:

• Americans with Disabilities Act

The American Disabilities Act of 1990 prohibits discrimination against individuals with disabilities in all areas of public life. It ensures that these people have the same rights and opportunities as everyone else in society.

Concerning the COVID-19 pandemic, the ADA protects employees from disability discrimination by regulating the employers’ disability-related inquiries (e.g., asking an individual if their immune system is compromised) and medical examinations for all applicants and employees.

For instance, ADA-covered employers may ask employees if they are experiencing symptoms, such as fever, chills, cough, or sore throat, but maintain the information as a confidential medical record.

Additionally, if an employee with a disability needs reasonable accommodation at a remote site, the employer should provide that. However, in the event of undue hardship (i.e., results in significant difficulty or expense for the employer), the employer and employee should cooperate to identify a reasonable alternative.

• Rehabilitation Act

Rehabilitation Act of 1973 Section 501 prohibits employment discrimination against individuals with disabilities in the federal sector. The Rehabilitation Act and Title I of the ADA share the same standards for determining employment discrimination.

The ADA and Rehabilitation Act continue to apply during the COVID-19 pandemic, but they do not interfere with employers from following the guidelines and suggestions made by the CDC or public health authorities.

For instance, the CDC advises that critical infrastructure employees and essential critical workers may be permitted to continue working following potential exposure to COVID-19, as long as they remain symptom-free and that additional precautions are taken to protect them and the community.

• Family and Medical Leave Act

An employee who is sick or caring for a family member with COVID-19 and works for a covered employer of the Family and Medical Leave Act may be entitled to take a leave under certain circumstances.

They can take up to 12 weeks of unpaid, job-protected leave for family and medical reasons, including a serious health condition. These include conditions requiring an overnight stay in a hospital or medical care facility, conditions that incapacitate the employee or a family member, or chronic conditions that incapacitate the employee or a family member for a certain time.

• Occupational Safety and Health Act

The Occupational Safety and Health Administration has standards and directives for compliance officers that may apply to worker exposure to COVID-19.

The General Duty Clause, or Section 5(a)(1) of the Occupational Safety and Health (OSH) Act of 1970, obligates employers to provide workers “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.”

Employees, meanwhile, have the right to speak up about any workplace hazards without fear of retaliation, file a safety or health complaint with OSHA, raise a health and safety concern with their employer, participate in an OSHA inspection, or report a work-related injury or illness.

• Fair Labors Standard Act (FLSA)

The Fair Labor Standards Act provides beneficial labor standards, such as minimum wage and overtime compensation, that continue to apply during the pandemic. For instance, your employer is required to pay for all the hours worked, regardless if it’s from home or other locations besides the workplace.

Even time spent waiting for and undergoing COVID-19 health screenings and temperature checks during the workday must be paid unless they fall within bona fide meal breaks and off-duty time. Similarly, employers are required to pay you for putting on and taking off protective and safety gear. Such tasks are necessary for you to perform direct patient care safely during the pandemic.

• The American Rescue Plan Act of 2021

The American Rescue Plan Act (ARPA) of 2021 amended and extended the tax credits for paid sick and family leave wages provided under the Families First Coronavirus Response Act (FFCRA) that expired on December 31, 2020.

The FFCRA was first amended by the COVID-related Tax Relief Act of 2020, providing small- and mid-sized employers refundable tax credits to reimburse them for the cost of providing paid sick and family leave wages related to COVID-19.

With the passage of ARPA, employers who provide FFCRA paid leave may now receive tax credit reimbursements through September 30, 2021. In other words, starting April 1, 2021, employers may provide up to 80 hours of COVID-19-related emergency paid sick leave and 12 weeks of emergency family and medical leave, as long as they’re taken by September 30, 2021.

Frequently Asked Questions

1. If I believe that I’m at risk of contracting COVID-19, can I refuse to go to work?

No; however, there may be certain circumstances in which an employee can refuse. Employers may be required to separate employees who should be quarantined due to contact with a COVID-19 carrier. As discussed, the OSH Act requires employers to provide workers “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.”

Thus, if an employer forces an employee to come to work even though they justifiably self-quarantined (e.g., another employee was a known carrier), this can be considered an OSH Act violation.  The employee may be protected from retaliation under Section 11(c) of the OSH Act, which prohibits discrimination against an employee who exercised any of the rights afforded by the OSH Act.

2. What should my employer consider if I need to take a leave due to contracting COVID-19 or caring for a family member with COVID-19?

Suppose you’ve tested positive for COVID-19 but believe that you can perform essential duties after some time. In that case, your employer should communicate with you to determine if a reasonable accommodation could be made for you without causing undue burden or posing a direct threat to others.

Under the FMLA, employers with 50 or more employees must provide employees with up to 12 weeks of job-protected unpaid leave for the employee’s serious health condition—the reason for their inability to perform job functions—or the need to care for a family member with a serious health condition.

You are also eligible for the continuation of your employer’s group health insurance coverage during the leave. The employer can deduct the premium from your wages during the time the FMLA period is paid. You may also be required to make payments towards the premium during the leave.

3. If I have COVID-19 and am quarantined, am I entitled to paid sick leave?

Yes. The ARPA permits employers to receive tax credits for providing paid leave through September 30, 2021. The FFCRA also allows paid leave if: 

• An employee is subject to a federal, state, or local quarantine or isolation related to COVID-19 
• A healthcare provider advised them to self-quarantine 
• They are experiencing COVID-19 symptoms 
• They are caring for someone under quarantine
• They are caring for a child whose school or place of care is closed, or their childcare provider is unavailable due to COVID-19
• They are experiencing any similar condition specified by the Secretary of Health and Human Services

Under the ARPA, paid leave may also be permitted if: 

• The employee is seeking or waiting for the results of a COVID-19 diagnostic test or diagnosis at the employer’s request
• They are obtaining immunization related to COVID-19
• They are recovering from any injury, disability, or illness associated with COVID-19 immunization

4. Does my employer have to pay me for the work hours that have been cut due to COVID-19?

No. Under the FLSA, employers only need to pay employees for the hours they worked.  Your employer is not required to pay you should you be entitled to the minimum wage and overtime protections of the FLSA for hours you were scheduled to work but did not because of a schedule change.

5. If I had COVID-19, can my employer require me to provide a doctor’s note or undergo a medical exam before returning to work?

Yes, they may require you to submit a doctor’s note. However, the U.S. Department of Labor encourages employers to consider that it can be difficult for employees to get appointments with doctors or health care providers due to the pandemic. 

Under the ADA, you may be required a doctor’s note, a medical examination, or a period during which you are symptom-free before you’re allowed to return to work. This applies if your employer has a reasonable belief, based on objective evidence, that your medical condition would impair your ability to perform essential job duties or pose a direct threat to workplace safety.

Similarly, under the FMLA, your employer may have a uniformly applied policy that requires employees to present a fitness-for-duty certification from a health care provider.

6. What COVID-19-related discrimination or harassment issues should my employer consider?

Title VII of the Civil Rights Act of 1964 prohibits the discrimination and unlawful harassment of individuals based on protected classes, including race, color, and national origin. The ADA also contains similar prohibitions based on a person’s disability. Thus, employers must ensure that their company culture is not affected by the fear and stress associated with the pandemic.

For instance, employers must not exclude or segregate Asian employees just because the coronavirus began in China. Similarly, they should not exclude employees returning from certain countries where a severe coronavirus outbreak has occurred, as this could give rise to a national origin discrimination claim. 

Do Not Distance Yourself From Your Rights

While people across the country continue to practice social distancing and vaccination efforts are moving along, one reality remains clear—the stigma persists against those infected or could be infected with COVID-19. 

The fact that federal laws had to be re-aligned in the context of the pandemic shows that it bears devastating societal effects more than being a public health and economic crisis. This is evident in the workplace, which is why learning the laws will allow you to exercise your rights as an employee, even beyond the pandemic.As the country continues to squash the curve and any surge of infection, you are encouraged to be aware of your rights moving forward. If you need legal assistance regarding employee rights violations related to the COVID-19 pandemic, reach out to Shegerian & Associates today.