Coronavirus and Employment Law

by Tom Wolpert on April 11, 2020

QUESTIONS and OBSERVATIONS

The sudden onset of Coronavirus has created a ‘pandemic’ of new legislative acts, laws, rules and rulings, which would be challenging to grasp if done at ordinary speed. At these speeds, it’s bewildering, even as to a subset of relevant Coronavirus law in the employment arena.

By way of background, on March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act (FFCRA), effective April 1, 2020.  This created two, new emergency leave entitlements, which will be operative until December 31, 2020.  It applies to private employers with few than 500 employees and certain public employers. The Emergency Paid Sick Leave Act (EPSLA) entitles qualified employees to take up to two weeks of paid sick leave, at 100% of regular pay (80 hours for a full-time employee is the maximum for EPSLA; you can’t stack different reasons to extend this).  The Emergency Family Medical Leave Expansion Act (EFMLEA) extends the Family Medical Leave Act (FMLA) and allows employees to take up to twelve weeks of expanded family and medical leave, including ten weeks of pay at 2/3 the regular rate.  After December 31, 2020, the FMLA will continue as it is presently enacted.

Generally, you can get two weeks of regular pay as paid sick leave at 100% if you are subject to a government ordered quarantine or isolation order; or have been advised by a health care provider to self-quarantine; or are experiencing Covid-19 symptoms and are seeking a medical diagnosis.  You can get 2/3 of your pay for two weeks as sick leave if you are caring for someone subject to a governmental quarantine order or medically-directed self-quarantine. You can get up to 12 weeks of paid sick leave at 2/3 of your pay, up to $12,000 total, if you are caring for a child whose school or day-care or babysitter is unavailable.

Employers may not discharge, discipline or otherwise discriminate against any employee who lawfully takes paid sick leave or expanded family and medical leave under the FFCRA, or who files a complaint.  This prohibition is enforced by the Wage and Hour Division of the U.S. Department of Labor.  (At this point, for employers of less than 50 employees I know of no ‘private right of action’ – meaning, you can not file your own lawsuit in connection with these laws or regulations).  If the employer has 50 or more employees, a private right of action exists, meaning you can sue without first contacting the Dept. of Labor. If you want to file a complaint, you call the Dept. of Labor at 1-866-487-9243.  Enforcement actions will not begin until after April 17, 2020, to give employers time to comply, but presuming that they are acting in good faith to attempt compliance.

If your worksite is closed before or after April 1, 2020, your only remedy is state unemployment compensation insurance benefits (UC.)  Essentially the benefits of the FFCRA are intended for the employees of employers who stay in business; if your employer closes, you are directed to state UC benefits.  See the Families First Coronavirus Response Act Questions and Answers put out by the Department of Labor, #27-32.

(The Paycheck Protection Program and Small Business Administration Disaster Relief Loan Program are beyond the scope of this post).

These hypothetical Coronavirus law questions (in italics), answers and observations are based on some questions already directed to me, and what information I can gather ‘on the run,’ under circumstances where the rules are changing almost daily. The discussion here is oriented around Pennsylvania law. Federal law is the same for all states, but each state has its own implementation of employment laws. In this area of the country, e.g., Pennsylvania, New Jersey, Delaware, New York and Maryland, those state laws can be very different. Don’t rely on anything written here without further counsel. If you see a mistake, send me an email at thomas@thomaswolpert.com – I’ll check it out, and if it’s wrong I’ll fix it.

I had a kidney transplant a few years ago. My employer is an essential business and is still operating, but I think I’m high risk if I catch Coronavirus and am afraid to go to work. Can I stay home and get full pay? Can my employer fire me?

Based on the question, I assume remote or telework is not an option. The Families First Coronavirus Response Act (FFCRA) provides paid sick leave and medical leave for specified reasons related to the Coronavirus pandemic. Contact your doctor. If your health care provider advises you to self-quarantine, you are entitled to at least two weeks of 100% paid sick leave if your employer is under the 500-employee threshold. This is under the Emergency Paid Sick Leave Act (EPSLA), but this is capped at two weeks.

Your employer could ask for an exemption from this requirement, but I know of no detailed guidance from the U.S. Department of Labor on what specific standards they will use to determine employer exemptions which are currently available.  Generally, the Code of Federal Regulations (CFR) 29 CFR 826.40(b)(1) provides that a small employer is exempt from the requirement to provide leave if such leave would cause expenses and obligations to exceed available business revenue and cause the small employer to cease operating at a minimal capacity; or the absence of the employee would pose a substantial risk to the financial health or operational capacity  of the employer because of their specialized skill or knowledge; or the employer cannot find enough other workers to perform the job.  Such a claim for exemption would require supporting records and documentation, to be retained by the employer.

After the first two weeks, if you are not caring for anyone else, you can still use any remaining paid sick leave, or vacation benefits, that you would have anyway. If you qualify for Pennsylvania unemployment compensation benefits (and reasonable medical prudence and UC law suggest you would), from April 4, 2020 through July 25, 2020, you are entitled to an extra $600 a week in UC benefits, on top of your regular UC benefits. You are supposed to exhaust paid leave before filing a PA UC claim. You should get your job back. But you can’t be your own doctor – see the answer to the next hypothetical question.

This seems like a good time to take a two-week vacation and get paid without using my vacation time. Can I call up my employer, who is operating a skeleton crew because some of its business is essential to manufacturing medical devices, and tell him I have Coronavirus symptoms, and get paid for two weeks?

No, not a good idea. Even if you actually became ill with Coronavirus, you are entitled to paid sick leave under the FFCRA to seek a medical diagnosis or if a health care provider otherwise advises you to self-quarantine. See the U.S. Department of Labor, Families First Coronavirus Response Act: Questions and Answers, no. 62. As a practical matter, there are serious legal risks to pretending you have Coronavirus symptoms if you don’t. Calling in to your employer and falsely claiming you have Covid-19 is likely to cause consternation, if not panic, with the other employees. That could easily be construed as roughly the equivalent of calling in a phony bomb threat. Talk to a doctor. One of the rules for paid sick leave is that you are seeking a medical diagnosis. See the next answer.

Someone I worked with and came in close contact with for extended periods of time called in and said they had tested positive for Coronavirus. What should I do?

Assuming the telephone call from a fellow employee is credible, then the Pennsylvania Department of Health has a flowchart called Guidance on Home Isolation or Quarantine and Returning to Work after Covid-19 Exposure. First, consult a healthcare provider. Second, anything you are proposing to do as an employee, talk to your employer about it. According to the flowchart, you should quarantine at home for 14 days; there is also a Pa Dept. of Health risk-assessment tool which says essentially the same thing. This two-week quarantine should qualify under the two-week paid federal paid leave entitlement of the EPSLA, since it is published guidance from the Pennsylvania Department of Health.

Aren’t there financial rebates available to me from the federal government?

Yes, there are, under the Federal Coronavirus Relief Law (the CARES act), but that is under the heading of tax advice and I am no tax advisor. But the CARES Act is the funding source for PA Pandemic Unemployment Compensation (FPUC; the extra $600 per week), Pandemic Unemployment Assistance (PUA) which extends eligibility to self-employed workers and independent contractors, and the Pandemic Emergency Unemployment Compensation (PEUC), which extended UC benefits beyond the regular 26 weeks already provided, for an additional 13 weeks. This is a total of 39 weeks of coverage at the present time, but my experience suggests that this benefit period could easily be extended; e.g., up to a one year. Also, the typical one-week waiting period for PA UC benefits has also been eliminated.

What if I need to care for my child who is out of school, probably until next fall? But even by working remotely the hours of work available, and the hours I can work, are both reduced.

You should apply for Pennsylvania unemployment compensation and/or Pandemic Unemployment Compensation (PUC). But you can’t do this while simultaneously receiving paid leave under the federal Extended Family Medical Leave Act (EFMLA). The EFMLA provides up to 12 weeks of paid sick leave and expanded family and medical leave paid at 2/3 of your regular rate for up to $200 daily and $12,000 total, because you are caring for a child whose school or place of care is closed due to Coronavirus (you have to have been employed for 30 days for this benefit).

Although the rules are changing wildly, in general the theory of unemployment compensation is that you are unemployed for no fault of your own and are seeking and/or available for work, so you seek UC benefits. The general theory of the Family Medical Leave Act and the EFMLA extension is that you are not available for work, for one of the qualifying reasons, such as caring for a child, so you seek Family Medical Leave benefits. If you can telework, or declined an option to telework, you are not eligible for Pandemic Unemployment Compensation. You are eligible for some UC benefits either under regular UC or under PUC if your hours are reduced because of Coronavirus. It’s important to remember there is no downside for applying for the greater benefits (probably PUC); get online when you can and make your application. www.uc.pa.gov.

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Some Further Observations

There is a general rule in Pennsylvania unemployment compensation law that an employee cannot be required to perform work which is unsafe. Sometimes there is a fine line between being insubordinate, which an employee cannot be and collect unemployment, and taking reasonable measures for his or her own safety. Generally, the remedy for any employee who believes they are being asked to do something which puts their health at risk is to first talk to the employer, then, if absolutely necessary, take whatever steps are required for safety. “Well, did you talk about this?” is an extremely common question, asked by Unemployment Compensation Referees, in Unemployment Compensation hearings which are being held to determine whether or not an employee has been insubordinate, or had a good-faith reason for their conduct.

Employees can avoid needless friction by communicating their concerns to the employer, and then pointing to the guidance that exists from the Pennsylvania Department of Health. Those steps should provide a safe harbor for collecting unemployment compensation – but of course, what people generally want are permanent jobs with regular paychecks from profitable employers, not transfer payments from some layer of government which will come to an end, typically in a matter of weeks or months.

Right now, in Pennsylvania, I know of no state law precedent for a lawsuit that claims damages (e.g., under discrimination laws enforced by the Pennsylvania Human Relations Commission) because an employee was unwilling to jeopardize their health in a pandemic. A creative lawyer might be able to manufacture a legal theory for such a lawsuit, but it takes years for such lawsuits to work their way through the trial courts, then the appellate courts.

The Governor of Pennsylvania has very broad powers, called police powers, (see the U.S. Supreme Court case Jacobson v. Commonwealth of Mass., 197 U.S. 11 (1905)) to shut down or restrict business activity in the case of a pandemic. But every business wants to keep operating. Pennsylvania employees need paychecks. I would expect there is going to be some conflict between what the Governor wants to impose by way of business restrictions to keep Pennsylvanians safe, and what Pennsylvania business owners want to keep from going bankrupt.

Gradually relaxing restrictions on movement and gathering of people at workplaces by the government will lead to a lot of grey areas in terms of the law, in which all lawyers are engaged in educated guess-work as to how those disputes will play out. Common sense dictates that employees and employers getting on the same page, working toward the same goal, is the best solution with respect to everyone’s personal health as well as everyone’s finances.

It is worth reciting some general legal principles, which are immediately applicable to state action in the case of pandemic, but which cut through many aspects of law, including, indirectly, employment law.  Extraordinary rules apply to both employers and employees, which might otherwise not be acceptable.  The safety net being legally constructed, which at times seems to be cobbled together with bubble gum and duct tape, does not have to be perfect. The Governor of Pennsylvania and the federal government have extraordinary rights to impose unusual and cumbersome measures, at least for a reasonable period of time. As the U.S. Supreme Court said, when confronting a small pox epidemic over 100 years ago, the liberty secured by the Constitution does not create an absolute right in each person, at all times and in all circumstances, to be free from all restraints. A community has the right to protect itself against an epidemic of disease which threatens the safety of its members.   See In re Abbott, 5th Cir., April 7, 2020, citing to Jacobson v. Massachusetts, 197 U.S. at 26-27.

Stay safe.

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