March 27, 2020
Ariel D. Weindling

1. Can I take time off if I or a family member becomes sick with COVID19?

The federal Family & Medical Leave Act (FMLA) allows a qualified employee to take up to 12 weeks of unpaid leave within a 12-month period if they or an immediate family member requires care for a “serious health condition.” The law also entitles a qualified employee to continued health insurance benefits and requires their employer to offer them the same or equivalent position when they return. Qualified employees are those who have worked for at least one year, over 1,250 hours in the prior year, and whose employer has at least 50 employees in a 75-mile radius.

The Family First Coronavirus Response Act (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 by 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 daycare 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. 

State and local laws may provide even greater protection for employees.

2. My employer has taken me off work – without pay – because of the COVID19 crisis. Can they lawfully do that?

It depends. If your employer has a policy that provides paid leave for those who are forced to take time off in connection with an illness, then the terms of the policy will dictate your employer’s obligations. Some states and cities have laws that provide employees with access to paid sick leave.

The FFCRA allows employees of companies with 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 healthcare 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 healthcare 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.

3. I was just fired by my employer after getting the coronavirus. Is this legal? 

No. The American 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. State and local laws sometimes extend additional protections for people with disabilities or serious health conditions.

4. I don’t feel comfortable going to my workplace even if I am not sick. Can I ask my employer to let me work from home? I also need to take care of my kids who are home (no school and no childcare).

Generally, there is no legal right to telecommuting, 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 telecommute as an accommodation, depending on whether working from home is reasonable under the circumstances.

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 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. 

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

Employers have the right to set the terms and conditions of employment, which includes work location, so long as they comply with the law. That means that an employer can require employees to work from home due to a reason such as business need or health and safety.

However, an employer may not mandate that certain people work from home because of a perceived or actual disability if it would operate as an adverse action based on a disability. For example, if working from home was akin to a demotion or resulted in lower pay for only certain individuals, those individuals may be protected by federal, state, or local statutes that prohibit discrimination based on a disability. 

6. My employer has required that I work from home. Should I be compensated for the time work from home? 

Yes! If you are an exempt (salaried) employee and you work any portion of the week, you must be paid your regular weekly pay. Non-exempt (hourly) employees who work from home are entitled to be paid for all hours worked, including overtime hours.

7. My employer has me work from home and had me pay for the cost of setting up a home office. Is this lawful?

It depends on the state in which you work. In California for example, it is not. California requires an employer to reimburse workers for things like internet access, computers, and cell phones used for work. If the expenses you incur in setting up your home office causes your weekly pay to drop below the minimum wage, you may have a claim under the federal Fair Labor Standards Act (FLSA) and some state wage and hour laws. 

8. My employer recently laid me off or cut my hours. What can I do?

There are specific laws that protect employees from mass layoffs. The federal Worker Adjustment And Retraining Notification (WARN) Act, requires companies to give affected employees 60-days advanced written notice of the mass layoff, worksite closing, or plant closing, but there are exceptions that may apply. 

Several states and cities require an employer to provide schedules in advance and must pay the workers when they take away or add shifts. Some laws also require extra pay when employers require workers to work split shifts, and if you are laid off or have your hours reduced, you may be entitled to unemployment benefits, which vary by jurisdiction.

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.

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

As the coronavirus outbreak has escalated, some employees have reported negative treatment from employers or coworkers because of their race, ethnicity, or national origin. That type of mistreatment is discrimination, and it’s illegal under federal law and many state and local laws.

If you feel you have been a victim of workplace discrimination or unlawful workplace treatment during this COVID-19 crisis, we invite you to download the #NotMe App and report your issue via our new COVID-19 questionnaire. The #NotMe team is available to assist you.

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Ariel D. Weindling, CEO and Founder of #NotMe

Ariel is a Los Angeles-based entrepreneur, a leading employment lawyer and an advocate for greater equality, safety, and transparency in the workplace. His passion for equality led him to create #NotMe: an app and AI-powered platform that gives all employees a safe, unbiased way to report workplace misconduct, while guiding employers to take swift and appropriate action.

Ariel has trained hundreds of employees on the subjects of sexual harassment, discrimination and bullying. After fifteen years handling a litany of cases involving harassment and discrimination and watching instances of workplace misconduct constantly repeat themselves, Ariel realized that corporate America was in need of a major paradigm shift. As the #MeToo and #TimesUp movements continue to steamroll through the collective consciousness of America, Ariel, along with a team of high-profile advisors, found himself in a unique position to help turn these movements into action, thus he created #NotMe

Ariel has a vision of a world in which his own children will inherit a workplace environment that is safe and equal, allowing them to freely thrive while accomplishing their own dreams.

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