Employee Rights Update: COVID-19
As states and cities have enacted “stay-at-home” and “shelter-in-place” orders in response to the COVID-19 pandemic, workers and employees are facing difficult times, especially if they have been terminated, laid off, or furloughed. Unfortunately, due to the economic impact of the Coronavirus, many jobs will be lost, and wages will be reduced due to economic necessity. Generally speaking, since most employment relationships are “at-will” a layoff, furlough, or prospective pay reduction due to the economic impact COVID-19 has had on a business is not illegal.
However, the fact that the nation is in the midst of a public health emergency does not relieve employers of their obligation to comply with state and federal laws that protect employees from illegal discrimination and ensure that employees are paid the wages, salaries, and commissions they earned and were promised to them. In fact, effective April 1, 2020, a new federal law called the Families First Coronavirus Response Act requires certain employers to provide paid leave and sick time for COVID-19 related reasons.
Employer Obligations Under The Families First Coronavirus Response Act (FFCRA)
Under the Coronavirus relief legislation, employers with fewer than 500 employees are required to provide 12 weeks of FMLA (Family Medical Leave Act) leave for childcare reasons related to COVID19. The new FMLA leave must be compensated after the first 10 days, at two-thirds of an employee’s wage, up to $200 per day. Employers must also provide 80 hours of paid sick time for specified reasons related to COVID-19. The U.S. Department of Labor has also issued its own Q&A guidance (located here) on the Families First Coronavirus Response Act of which the Emergency Paid Sick Leave Act is a part. Employers are required to post the following poster which informs employees of their rights under the FFCRA in a conspicuous place in the workplace or otherwise provide it to employees via email, mail, or an internal or external website.
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, files a complaint, or institutes a proceeding under or related to this Act. If you believe that your employer is covered and is improperly refusing you paid sick or FMLA leave, you may have a claim against them.
Employee Rights under the Age Discrimination in Employment Act (ADEA)
The Age Discrimination in Employment Act (ADEA) prohibits employers from discriminating against older employees in the absence of a “bona fide occupational qualification.” Despite the presence of information which suggests that older persons are more at risk to COVID-19 than younger persons, an employer that adopted a policy which targeted persons protected by the ADEA (40 and over) for layoffs and furloughs could be violating the ADEA. Similarly, a blanket policy that prohibits employees over a certain age from working would likely be unlawful.
Employee Rights under the Americans With Disabilities Act
Similar to the COVID-19 risks posed to older persons, persons with pre-existing conditions and disabilities may in some instances be at higher risk of complications if they are infected by the virus. Still, despite this legitimate concern, it would remain unlawful under the ADA for an employer to adopt a policy prohibiting persons from working because the employer knows that employee (or prospective employee) has a disability or they perceive that person has a disability under the act. As has been the case prior to the COVID-19 outbreak, telework (i.e. working from home) may be an appropriate and “reasonable accommodation” under the ADA that an employer is obligated to provide under certain circumstances.
The ADA (which only applies to employers with 15 or more employees) also obligates employers to protect and keep confidential certain employee medical information, which could include information that a specific employee has been diagnosed with COVID-19 or is exhibiting symptoms consistent with a diagnosis.
Employee Rights to Unpaid Wages
The Wage and Hour laws continue to require employers to pay employees for the hours they have worked at the rate promised by their employer. An employer may reduce wages and other forms of pay to account for the economic impact of the COVID-19 outbreak, but only prospectively (i.e. going forward after the employer provided the employee notice of the reduction.). Under the North Carolina Wage and Hour Act, wages owed to an employee are due on the regular payday. If you have been terminated or furloughed, your employer is still required to pay you any unpaid wages and other benefits, such as accrued Paid Time Off (PTO), that the employer has a policy and practice of paying employees upon termination. Contact the Wage and Hour attorneys at Maginnis Law if you believe your employer is illegally withholding your wages.
Your Rights Still Matter
The current situation is like none before and it goes without saying that “we are all in this together.” But, while unity is going to be a key part of how we all get through this, the fact remains that you still have rights.
If you believe your employer may have violated any of these employment laws or if you have questions about your rights under any employment agreement, including a severance agreement, we may be able to assist you in navigating these difficult and trying times.