Javier Perez Founder & Managing Partner, Perez Law
ISSUE 8 | FALL 2020 | EMPLOYMENT LAW |
COVID-19 has presented workers with one of the greatest existential threats in generations. Some seven months into this pandemic, 8 million people have tested positive for the virus and over 210,000 people have lost their lives in the United States alone.¹ Far too many have been forced to put their health and safety at risk on a daily basis to keep the jobs they have and many more have lost their jobs altogether. All the while, as “at-will” employees, these members of our community are vulnerable to losing their jobs with little to no recourse, and undocumented employees—who pay tens of billions of dollars in in state, federal, and local taxes²—are left out in the cold without access to most government benefits.
In addition to the patchwork of shelter in place orders and other economic closures across the country, the legal landscape presents its own challenge for those individuals looking for a path forward. Navigating these uncertain times is especially difficult when the application of both new and existing laws can be unclear. Many people are uncertain what leave, personal protective equipment (“PPE”), or accommodations may be available in the workplace. And for those tens of millions of workers who lost their jobs during the pandemic, the changing landscape of available unemployment benefits presents its own complex terrain. Those who work in so-called “essential services,” whose work has been mandated to continue during the various COVID-19 responses,³ face serious risk to their own health, lives, and that of their families to provide us with the infrastructure we need to survive.
Beneath the surface, we see that workers of color do so with a disproportionate risk of contracting the virus. Not only have “[l]ong-standing systemic health and social inequities put many people from racial and ethnic minority groups at increased risk of getting sick and dying from Covid-19,”⁴ workers of color face higher chances of losing jobs and prolonged unemployment.
For these reasons, it is incumbent on those of us in positions of privilege and influence to support those risking their safety to keep our communities safe and healthy and to provide guidance wherever possible. Many of us have the luxury of choosing to work remotely and safely away from the risk of exposure to the virus; it is our responsibility to think of those whose only choice is between that risk and unemployment.
I. The Vulnerability of At-Will Employment
Except for those with an explicit contract, most employees are employed under what is known as “at-will employment,” a long-held legal concept which means that covered employers and employees can terminate the employment relationship at any time, for any reason or for no reason, so long as it is not an illegal reason.⁵While this can seem even-handed on its face, it leaves many, if not most, employees, vulnerable to the whims of their employers who may decide they no longer need an employee from one day to the next. This vulnerability has been made undeniably prominent during the age of COVID-19.
II. What Leave and Rights May Be Available to Me?
New and existing laws provide for leave and other accommodations for workers related to the COVID-19 pandemic. It is important to note that not all leave is available to all employees; most is restricted to “covered” employers, meaning that specific law applies to them, and you must meet certain qualifications to be eligible as well. However, these accommodations may make the difference in protecting you, your family, and your community from contracting or spreading the COVID-19 virus.
III. Existing Law
A. The Family and Medical Leave Act
Essential Takeaway: The Family and Medical Leave Act may entitle you to twelve weeks of unpaid leave for your own or a family member’s serious health condition.
Existing law may entitle you to twelve weeks of unpaid leave during which time your employer must protect your job. Under the Family and Medical Leave Act (“FMLA”) of 1993, eligible employees of covered employers have a right to twelve weeks of unpaid job-protected leave and a continuation of group health insurance coverage for certain family and medical reasons.⁶ The FMLA lists the following specific reasons for leave:
the birth of a child of the employee;
the placement of a child in adoption or foster care with the employee;
a serious health condition makes the employee unable to perform the functions of their job;
to care for a spouse, child, or parent with a serious health condition;
a spouse, child, or parent of the employee is on covered active duty in the Armed Forces; or
because of a qualifying need related to a public health emergency, i.e., COVID-19.⁷
In order to be eligible for FMLA leave, you must be employed by a covered employer for at least one year (12 months).⁸ An employer is generally covered if they employ at least 50 employees within a 75-mile radius.⁹
i. How does it apply to COVID-19?
Because COVID-19 can present a range of symptoms, it may or may not qualify as a “serious health condition” under the FMLA. A “serious health condition” is defined as “an illness, injury, impairment, or physical or mental condition that involves inpatient care in a hospital, hospice, or residential medical care facility, or continuing treatment by a health care provider.”¹⁰
Under the enhanced family and medical leave discussed below, however, covered employers may have to provide you with fully or partially paid leave to quarantine yourself, to care for a family member, or if your child-care becomes unavailable in connection with COVID-19. Remember, FMLA does not entitle you to paid leave, it merely protects your job if you need to be out of work for one of the stated reasons.
We know that COVID-19 presents a serious health threat, one that spreads rapidly and can prove deadly in many cases. The FMLA, however, does not entitle you to stay home to avoid getting COVID-19.¹¹ This has put many employees in the impossible situation where they must risk their health and safety in order to keep their jobs.
2. The Americans with Disabilities Act
Essential Takeaway: The Americans with Disabilities Act protects you from being discriminated against because of an actual, perceived, or record of a disability and requires your qualifying employer to provide reasonable accommodations for disabilities.
The Americans with Disabilities Act of 1990 (“ADA”) is an important law that controls many of the legal requirements in the workplace related to COVID-19. Generally speaking, the law prohibits your employer, if covered, from discriminating against you because of an actual, perceived, or record of a disability.
Under the ADA, as amended, a covered employer may not treat an employee or applicant unfavorably because they have a disability, because the person is believed to have a qualifying physical or mental impairment, or because the person has a history of a disability.¹² The law also requires an employer to provide reasonable accommodation to an employee or applicant with a disability unless it would cause undue hardship.¹³ A disability is defined as “a physical or mental impairment that substantially limits one or more major life activities.”¹⁴
How does the ADA apply in the COVID-19 Pandemic?
With respect to COVID-19, the ADA regulates what an employer may ask of its applicants and employees,¹⁵ prohibits the exclusion of employees or applicants from the workplace for health or safety reasons unless they pose a “direct threat,”¹⁶ and requires the employer to provide reasonable accommodation of individuals with disabilities.¹⁷
What Can an Employer Do?
Generally speaking, an employer may not make inquiries related to disabilities or require medical examinations except under certain limited circumstances.¹⁸Related to COVID-19, an employer can do the following:
Require you to adopt “infection-control practices” such as regular handwashing, coughing and sneezing practices, and the proper use and disposal of tissues.¹⁹
Require you to wear Personal Protective Equipment like masks, gloves, or gowns in most cases.²⁰ An employer may be required to provide reasonable accommodation like non-latex gloves, modified face masks, and gowns for people who use wheelchairs.²¹
Take your temperature or ask if you have COVID-19 symptoms, but your temperature and responses must be kept confidential.²²
Take your temperature and screen job applicants for symptoms so long as it is done after a conditional job offer is made and it is required for all new employees in that type of job.²³
Require you to provide a doctor’s note certifying fitness to return to work if you have been away from the workplace for COVID-19.²⁴
Ask you if you had contact with anyone diagnosed with COVID-19 or who has related symptoms.²⁵
Ask an employee with COVID-19 for a list of people with whom they had contact and notify those people without disclosing the infected employee’s name.²⁶
Keep employees or applicants out of the workplace if they have COVID-19 or show symptoms of it.²⁷
What Can an Employer Not Do?
Ask employees without symptoms to disclose if they have medical conditions that would make them vulnerable to COVID-19.²⁸
Broadly disclose the name of an employee with COVID-19 to staff who do not have a need to know.²⁹
Terminate your employment because you had COVID-19. However, this does depend on your particular situation and you should consult an attorney if you think you were terminated on this basis.
When is an Employer Required to Provide A Reasonable Accommodation?
An employer must provide reasonable accommodations for disabilities so long as they do not impose an undue burden. A reasonable accommodation is “a change in the work environment that allows an individual with a disability to have an equal opportunity to apply for a job, perform a job’s essential functions, or enjoy equal benefits and privileges of employment.”³⁰ An undue burden is “an action requiring significant difficulty or expense.”³¹ Requesting an accommodation is a protected activity for which your employer may not retaliate against you.³²
With respect to COVID-19, some specific accommodations may also be required:
If you have a preexisting disability that puts you at greater risk of complications from COVID-19, and you disclose it to your employer, you may be entitled to a reasonable accommodation to avoid possible exposure.³³
If you have a preexisting mental illness or disorder, you may be entitled to a reasonable accommodation because the pandemic has exacerbated your condition.³⁴
If you have COVID-19 and your symptoms are serious enough to constitute an actual or record of disability, you may be entitled to a reasonable accommodation.³⁵
COVID-19 could constitute a disability if it substantially limits one or more major life activity.³⁶
What Types of Accommodations May an Employer Have to Provide?
A reasonable accommodation is considered according to the disability and particular needs of the employee requesting it. Employers should initiate an interactive process with the employee to “identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.”³⁷
In the age of COVID-19, several accommodations have become very commonplace:
Telework - Because telework has become so common during the pandemic, it is likely to be considered “reasonable” under many circumstances for many jobs. Telework may also constitute a reasonable accommodation even where the employer does not have a policy allowing it.³⁸ Notably, if employees can perform their work successfully via telework, and it does not cause an employer an undue burden, continuing to allow teleworking could constitute a reasonable accommodation going forward.
Leave - Employers likely have to allow leave as a reasonable accommodation under the ADA so long as the leave is not indefinite.³⁹ This is a separate accommodation, and therefore could be in addition to leave afforded under the FFCRA and FMLA.
B. New Leave – The Families First Coronavirus Response Act
Essential Takeaway: The FFCRA provides various forms of paid leave to eligible employees to quarantine themselves, to care for family members, or because childcare becomes unavailable.
Enacted on March 18, 2020, the Families First Coronavirus Response Act (“FFCRA”) requires some employers to provide their employees with paid sick leave or other leave for certain reasons related to COVID-19.⁴⁰ These requirements are currently in effect from April 1, 2020, through December 31, 2020.⁴¹
If you work for an employer in the private sector with fewer than 500 employees, you are entitled to the following leave:
Up to two weeks of paid sick leave based on the higher of your regular rate of pay if you are unable to work because you are quarantined (based on a government order or health care provider recommendation) and/or you are experiencing COVID-19 symptoms and seeking medical diagnosis.
Two weeks of paid sick leave at two-thirds your regular rate of pay if you are unable to work because of a verifiable need to:
a.care for someone subject to quarantine (based on government order or advice of a health care provider); or
care for a child (under 18 years old) whose school or childcare provider is closed or unavailable for reasons related to COVID-19; and/or
or if you are experiencing substantially similar conditions as defined by the Secretary of Health and Human Services and the Secretaries of the Treasury and Labor.
Up to an additional 10 weeks of paid family and medical leave at two-thirds of your regular rate of pay if you (1) have been employed at least 30 days, and (2) are unable to work due to a verifiable need to care for a child whose school or childcare provider is closed or unavailable for reasons related to COVID-19.⁴²
If you work for a federal, state, municipal, county, or similar governmental entity, you are more than likely entitled to the same benefits regardless of the number of employees.⁴³ The main exception is for health care providers and emergency responders, who are likely ineligible for leave under the FFCRA.⁴⁴
What is my employer required to do to keep me safe?
Essential Takeaway: Your employer is required to provide a safe workplace and they may be required to provide PPE or other mitigation practices to keep you safe; if they cannot, they may need to stop engaging in the unsafe practice altogether. If they do not, they may be subject to fines by the Occupational Safety and Health Administration.
The Occupational Safety and Health Administration (“OSHA”) issued its Guidance on Returning to Work that speaks to the widespread and very understandable concerns employees have in returning to work during the COVID-19 pandemic. In general, employers “have the responsibility to provide a safe and healthful workplace that is free from serious recognized hazards.”⁴⁵ In these times, it is difficult to imagine COVID-19 not being a recognized hazard anywhere there are people.
For COVID-19, OSHA states plainly that employers “must determine if PPE (such as gloves, surgical masks, and face shields) is necessary for employees to work safely” and consider if certain work practices like social distancing and cloth face coverings can effectively mitigate such hazards.⁴⁶ OSHA goes even further to require employers to discontinue work tasks if PPE is needed and unavailable and no alternative means can be identified to accomplish business needs safely.⁴⁷According to OSHA, “[e]mployers must conduct a hazard assessment in accordance with OSHA’s PPE standard” to determine the PPE requirements for the particular worksite.⁴⁸
OSHA’s standards for PPE and respiratory protection speak to protections employers could be required to provide for employees. For PPE, the OSHA standard requires various protective equipment for employee’s eyes, face, head, extremities, respiratory devices, and barriers to be “provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of process or environment . . . in a manner capable of causing injury or impairment in the function of any part of the body.”⁴⁹ The respiratory protection standards require a whole host of potential protections to control “occupational diseases,” including respirators.⁵⁰
In September 2020, OSHA cited Smithfield Packaged Meats Corp. in South Dakota for “failing to protect employees from exposure to the coronavirus.”⁵¹Reportedly nearly 1,300 Smithfield workers contracted coronavirus and four died.⁵² In cautioning other employers, the OSHA area director warned: “Employers must meet their obligations and take necessary actions to prevent the spread of coronavirus at their worksite.”⁵³ A review of OSHA’s published enforcement actions shows a number of sizeable citations totaling millions of dollars in fines in just the last six months.⁵⁴
If I lose my job, am I eligible for Unemployment Benefits?
Essential Takeaway: Yes, if you lost your job through no fault of your own and are authorized to work in the United States.
Due to economic shutdowns and the related economic recession, many employers nationwide are implementing widespread layoffs and furloughs. It is important to remember that most employees are at-will, which means that your employment can be terminated for any reason or no reason, so long as it is not an illegal reason.⁵⁵
To be eligible for unemployment benefits in Texas, you must meet the Texas Workforce Commission’s criteria regarding job separation, among other things.⁵⁶To meet the job separation requirements, you must either be unemployed or working reduced hours through no fault of your own.⁵⁷ “Examples include layoff, reduction in hours or wages not related to misconduct, being fired for reasons other than misconduct, or quitting with good cause related to work.”⁵⁸ If you quit or resign your employment, you most likely are not eligible for unemployment benefits. For example, if you quit your job for personal reasons, such as lack of transportation or stay home with your children, you are most likely ineligible.
U.S. Citizens and individuals authorized to work in the U.S. at the relevant time periods may be eligible for unemployment benefits.⁵⁹ Undocumented employees are thus likely ineligible for unemployment benefits even though they pay an estimated $9 billion in annual payroll taxes.⁶⁰
Does COVID-19 Have a Disparate Impact on Workers of Color?
Essential Takeaway: Yes, but this is an expression of long-standing social and economic inequality.
“There is increasing evidence that some racial and ethnic minority groups are being disproportionately affected by COVID-19.”⁶¹ Discrimination, limited healthcare access and use, a disproportionate number of jobs in essential work settings, educational and economic inequality, and housing inequality all contribute to “more COVID-19 cases, hospitalizations, and deaths in areas where racial and ethnic minority groups live, learn, work, play, and worship.”⁶²
An Economic Policy Institute analysis indicates “Black and Hispanic workers face much more economic and health insecurity from COVID-19 than white workers.”⁶³This is due largely to social and economic inequalities that pre-dated the virus but are nevertheless reflected in the “disparate racial impact of the virus.”⁶⁴
Black workers have suffered from disproportionate rates of unemployment and face greater health risks because they are more likely to be in front-line jobs that are categorized as essential.⁶⁵ Black workers likewise suffer from disproportionately high COVID-19 death rates and are more likely to live in areas experiencing outbreaks.⁶⁶ Latinx workers have suffered disproportionate economic and health effects due to their “overrepresentation in jobs within some of the hardest-hit industries” and “the fact that Latinx workers already had lower pre-pandemic wages, income, and wealth, as well as less access to health care and other important job-related benefits.”⁶⁷
While “we’re all in this together” has been a popular anthem, it appears that we are not all affected in the same way. As the CDC recommends: “Finding ways to maintain support and connection, even when physically apart, can empower and encourage individuals and communities to protect themselves, care for those who become sick, keep kids healthy, and better cope with stress.”⁶⁸ It is only in looking out for each other and finding ways to lift each other up that we can overcome this historic challenge.
Sources: ¹ U.S. Department of Labor – Wage & Hour Division, Families First Coronavirus Response Act: Employee Paid Leave Rights, https://www.dol.gov/agencies/whd/pandemic/ffcra-employee-paid-leave. ² U.S. Dept. of Labor Poster: “Employee Rights – Paid Sick Leave and Expanded Family and Medical leave Under the Families First Coronavirus Response Act,” https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_N.... ³ U.S. Department of Labor – Wage & Hour Division, Families First Coronavirus Response Act: Employee Paid Leave Rights, https://www.dol.gov/agencies/whd/pandemic/ffcra-employee-paid-leave. ⁴ U.S. Dept. of Labor – Wage and Hour Division, “Families First Coronavirus Response Act: Questions and Answers,” Questions 52-54, https://www.dol.gov/agencies/whd/pandemic/ffcra-questions#52. ⁵ U.S. Dept. of Labor – Wage and Hour Division, “Families First Coronavirus Response Act: Questions and Answers,” Questions 56-57, https://www.dol.gov/agencies/whd/pandemic/ffcra-questions#56. ⁶ Guidance on Returning to Work at 11, available at https://www.osha.gov/Publications/OSHA4045.pdf. ⁷ Guidance on Returning to Work at 15. ⁸ Id. ⁹ [Id. ¹⁰ 29 C.F.R. 1910.132. ¹¹ 29 C.F.R. 1910.143. ¹² “U.S. Department of Labor Cites Smithfield Packaged Meats Corp. For Failing to Protect Employees from Coronavirus,” U.S. Dept. of Labor Press Release No. 20-1684-NAT (September 10, 2020), available at https://www.osha.gov/news/newsreleases/region8/09102020. ¹³ “U.S. Department of Labor Cites Smithfield Packaged Meats Corp. For Failing to Protect Employees from Coronavirus,” U.S. Dept. of Labor Press Release No. 20-1684-NAT (September 10, 2020), available at https://www.osha.gov/news/newsreleases/region8/09102020. ¹⁴ Id. ¹⁵ Economic Policy Institute, Black Workers Face Two of the Most Lethal Preexisting Conditions for Coronavirus – Racism and Economic Inequality, June 1, 2020, https://www.epi.org/publication/black-workers-covid/. ¹⁶ Id. ¹⁷ Economic Policy Institute, Latinx Workers – Particularly Women – Face Devastating Job Losses in the COVID-19 Recession, August 20, 2020, https://www.epi.org/publication/latinx-workers-covid/. ¹⁸ Center for Disease Control and Prevention, “Health Equity Considerations and Racial and Ethnic Minority Groups,” July 24, 2020, https://www.cdc.gov/coronavirus/2019-ncov/community/health-equity/race-e....
¹⁹ “CDC COVID Data Tracker,” Center for Disease Control, https://covid.cdc.gov/covid-data-tracker/#cases_casesinlast7days.
²⁰ See e.g. Yale-Loehr, Stephen, “Undocumented Immigrants Pay More Taxes than President Trump,” Cornell University Tip Sheet, https://news.cornell.edu/media-relations/tip-sheets/undocumented-immigra.... ²¹ Texas Executive Order GA 14 – Relating to Statewide Continuity of Essential Services and Activities During the COVID-19 Disaster, (Governor Greg Abbott March 31, 2020), https://gov.texas.gov/uploads/files/press/EO-GA-14_Statewide_Essential_S.... ²² “Health Equity Considerations & Racial & Ethnic Minority Groups,” CDC, https://www.cdc.gov/coronavirus/2019-ncov/community/health-equity/race-e.... ²³ East Line and R.R.R. Co. v. Scott, 10 S.W. 99, 102 (Tex. 1888). ²⁴ See generally U.S. Dept. of Labor Wage and Hour Division, “Family and Medical Leave Act,” https://www.dol.gov/agencies/whd/fmla. ²⁵ 29 U.S.C. § 2612(a)(1). ²⁶ 29 U.S.C. § 2611(2)(A)(i-ii). ²⁷ 29 U.S.C. § 2611(2)(B)(ii). ²⁸ 29 U.S.C. § 2611(11). ²⁹ U.S. Dept. of Labor Wage and Hour Division, “COVID-19 and the Family and Medical Leave Act Questions and Answers,” Question 3, https://www.dol.gov/agencies/whd/fmla/pandemic#q3. ³⁰ U.S. Equal Employment Opportunity Commission, “Disability Discrimination,” https://www.eeoc.gov/disability-discrimination. ³¹ Id. ³² 42. U.S.C. § 12102(1)(A). ³³ 42 U.S.C. § 12112(d)(4)(A); see also U.S. Equal Employment Opportunity Commission, Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-a.... ³⁴ 42 U.S.C. §§ 12111(3). ³⁵ 42 U.S.C. § 12112(b)(5). ³⁶ 42 U.S.C. § 12112(d). ³⁷ U.S. Equal Employment Opportunity Commission, Pandemic Preparedness in the Workplace and the Americans with Disabilities Act (hereafter “Pandemic Preparedness”), Question 11, https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-a.... ³⁸ Pandemic Preparedness, Question 12. ³⁹ U.S. Equal Employment Opportunity Commission, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEOC Laws (hereafter “What You Should Know”), Question G.2 (EEOC June 17, 2020), https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-re.... ⁴⁰ Pandemic Preparedness, Question 7. ⁴¹ Pandemic Preparedness, Question 16-17. ⁴² Pandemic Preparedness, Question 20. ⁴³ U.S. Equal Employment Opportunity Commission, Transcript of March 27, 2020 Outreach Webinar (hereafter “Transcript”), Question 4, https://www.eeoc.gov/transcript-march-27-2020-outreach-webinar. ⁴⁴ What You Should Know, Question B.5. ⁴⁵ Pandemic Preparedness, Question 5. ⁴⁶ Pandemic Preparedness, Question 9. ⁴⁷ Transcript, Question 5. ⁴⁸ Pandemic Preparedness, Question 12. ⁴⁹ 42 U.S.C. § 12111(10)(A). ⁵⁰ 42 U.S.C. § 12203. ⁵¹ What You Should Know, Question D.1. ⁵² What You Should Know, Question D.2. ⁵³ 42 U.S.C. § 12112(b)(5)(A). ⁵⁴ 42 U.S.C. § 12112(b)(5)(A). ⁵⁵ 29 C.F.R. § 1630.2(o)(3). ⁵⁶ Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, n. 35. ⁵⁷ U.S. Equal Employment Opportunity Commission, Employer-Provided Leave and the Americans with Disabilities Act, May 9, 2016, https://www.eeoc.gov/laws/guidance/employer-provided-leave-and-americans.... ⁵⁸ OSHA News Releases – Enforcement, accessed on October 16, 2020, and available at https://www.osha.gov/news/newsreleases/enforcement/. ⁵⁹ See e.g. East Line and R.R.R. Co. v. Scott, 10 S.W. 99, 102 (Tex. 1888). ⁶⁰ Eligibility and Benefit Amounts, Texas Workforce Commission, available at https://www.twc.texas.gov/jobseekers/eligibility-benefit-amounts. ⁶¹ Id. ⁶² Id. ⁶³ Texas Workforce Commission, Ongoing Eligibility Requirements for Receiving Unemployment Benefits, available at https://www.twc.texas.gov/jobseekers/ongoing-eligibility-requirements-receiving-.... ⁶⁴ Internal Revenue Service, “Immigration and Taxation,” 2014 IRS Nationwide tax Forum, https://www.irs.gov/pub/irs-utl/20-Immigration%20and%20Taxation.pdf. ⁶⁵ Center for Disease Control and Prevention, “Health Equity Considerations and Racial and Ethnic Minority Groups,” July 24, 2020, https://www.cdc.gov/coronavirus/2019-ncov/community/health-equity/race-e.... ⁶⁶ Id. ⁶⁷ Id. ⁶⁸ Id.
