The outbreak of a new coronavirus originating from Wuhan, China last year has since swept across the world in a pandemic affecting hundreds of thousands of people. By March 23, the Centers for Disease Control and Prevention (CDC) reported more than 33,000 cases in all U.S. states and territories except American Samoa.
Due to its high rate of infection, the virus – COVID-19 – and its spread were combatted by local and state governments, which ordered shelter-in-place orders and required non-essential businesses to close. Since then, the number of unemployment claims in California has surged as a result of layoffs caused by businesses unable or unwilling to pay workers without a clear revenue stream. Workers who have been able to keep their jobs may be working overtime hours and harder than ever to help their employers keep up with demand.
While President Donald Trump signed the Families First Coronavirus Response Act, which provided new protections for all U.S. employees during the COVID-19 crisis, little has changed regarding employment law that goes against the interests of workers. In other words, a state of national emergency doesn’t mean you lose rights as a worker – if any, your employer is accountable for ensuring you are treating according to new temporary protections.
There are a lot of questions you may have right now as an employee working during a pandemic. Here are some answers to questions that many workers like you are asking.
WHAT DOES THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT DO FOR WORKERS?
There are many things that this piece of legislation does to support workers during the COVID-19 crisis, but there are three key aspects that directly impact workers: paid sick leave, paid medical leave for childcare, and a $1 billion federal boost to states’ unemployment programs.
The paid sick leave provision applies to employees who work for employers who have 50-500 employees. It grants each qualified employee up to two weeks of paid sick leave and includes part-time employees, who get compensated on their average weekly rate.
The paid medical leave for childcare extends existing provisions in the Family and Medical Leave Act (FMLA) to provide 10 weeks of paid leave for employees who care for a child whose school has shut down. This also only applies to workers of employers with 50-500 employees.
CAN I SUE MY EMPLOYER FOR LAYING ME OFF OR PUTTING ME ON UNPAID LEAVE?
It’s possible. The mere fact that your employer took this course of action may not itself have legally actionable grounds to sue, so it’s intent that matters the most here. If you feel you were subjected to adverse employment decisions – like a round of layoffs or unpaid leave – because of your association with a protected class, you may be able to hold your employer liable for discrimination.
Virus or no virus, it’s illegal to discriminate against someone based on their age, sex, gender identity, disability status, pregnancy, national origin, skin color, and many other groups in California. If you think what happened to you was based on any of these factors and not business matters related to COVID-19, you may have a valid claim.
SO, I CAN ONLY SUE IF DISCRIMINATION IS A FACTOR?
No. If you get fired, laid off, placed on unpaid leave, or even have your hours reduced for speaking up about how your employer isn’t adapting to any of the new laws being passed right now, you can hold them accountable for retaliation under state and federal whistleblower laws. In fact, whistleblower protections may be important now more than ever because employers may feel tempted to ignore certain employment laws – like those related to overtime – to keep up with demand and keep their costs down.
You can also sue your employer for breach of the covenant of good faith and fair dealing, although this may be a challenging case to prove during this time. While not strictly an employment law matter, a lawsuit of this type can hold employers accountable for employment decisions that go against their own policies or what’s outlined in an employment agreement.
WHAT IF MY EMPLOYER SAYS I DON’T GET THE NEW PAID SICK LEAVE?
As previously stated, the paid sick leave outlined in the Families First Coronavirus Response Act applies to companies that employ 50-500 employees. It grants up to two weeks of paid leave for qualified employees. Your employer doesn’t have to comply with this new law if they have less than 50 or more than 500 employees.
SHOULD I BE GETTING PAID OVERTIME RIGHT NOW?
Whether the U.S. is in a state of national emergency or not, every worker is entitled to overtime pay of one-and-a-half times their normal rate for each hour greater than 40 in a workweek. This is a provision of the Fair Labor Standards Act, which has been federal law since 1938. If your employer isn’t paying you your overtime wage rate or not accounting for overtime hours right now, you may have a valid claim.
AM I ENTITLED TO HAZARD PAY DURING THE COVID-19 PANDEMIC?
Hazard pay is compensation for a worker who is on duty in a situation that can result in serious injury or death. Soldiers, for instance, are among the most common recipients of this type of pay but can apply to healthcare workers or employees operating in dangerous conditions.
That said, there are no state or federal protections for hazard pay. Because of this, you are unlikely to successfully sue for hazard pay unless your employer is failing to make do on a contractual obligation to do so.
AM I PROTECTED IF I REFUSE TO WORK OR TAKE ON AN ASSIGNMENT?
Yes. Due to whistleblower laws, it’s unlawful for your employer to retaliate against you for complaining or refusing to perform a task out of concern for their safety. However, if a reasonable person would deem the task safe – such as if the employee is equipped with training and equipment that makes it safe – then refusing the assignment could result in legal adverse employment actions.
IS MY EMPLOYER LIABLE IF I CATCH COVID-19 AT WORK?
Maybe, but it’s unlikely you’d have a successful lawsuit. Because the novel coronavirus is so infectious, it would be hard to prove that you caught it at work or as a result of negligence on behalf of your employer. More clear injuries such as slips and falls are easier to determine fault and hold accountable parties responsible, but a practically invisible factor-like COVID-19 can’t be easily traced.
WHAT DO I DO IF MY EMPLOYER IS BREAKING THE LAW?
Contact an employment law attorney. If your employer is taking advantage of you and your labor during this time, you can hold them accountable and fight for fair and just compensation. At The Manukyan Law Firm, we know that there are workers risking their health and safety to maintain their livelihoods right now.
If your employer has discriminated against you, isn’t paying you what you deserve, or is retaliating against you for speaking up, reach out to us for the employment law help you need.
Contact The Manukyan Law Firm online or call to get an employment law attorney on your side during this crisis.