As the challenges of the COVID-19 pandemic and shelter orders continue, employees and independent contractors can benefit from new and continuing legal rights.
FFCRA Paid Sick and Family Leave:
The Families First Coronavirus Response Act provides employees and independent contractors with paid sick and family leave if the employer has work available and one of 6 qualifying conditions causes the individual’s inability to work or telework:
- Government quarantine or isolation order (including shelter order) related to COVID-19
- Health care provider advises self-quarantine for COVID-19
- Experiencing COVID-19 symptoms and seeking a medical diagnosis
- Caring for an individual subject to order under (1) or (2)
- Caring for one’s child whose school/place of care is closed (or child care provider unavailable) due to COVID-19
- Experiencing any other substantially-similar condition specified by the U.S. Department of Health and Human Services
Sick leave can be up to 2 weeks (80 hours) and is capped: for reasons 1-3 and 6, worker receives his regular rate of pay up to $511/day or $5,110 total. For reasons 4 and 5, individual receives 2/3 regular rate, capped $200/day or $2,000 in total.
Family leave is also available – for reason 5 only – for up to 12 weeks. Pay is at 2/3, capped at $200/day or $10,000 total. General right to reinstatement after family leave, with certain exceptions for small employers. Employees on leave CAN be subject to furlough.
Employers can’t force employees to use up accrued company-provided leave to take FFCRA leave.
Workers must provide documentation to support the leave, e.g. a doctor’s certification, verification of school closure. Refusing to work out of general fear of exposure is not sufficient for FFCRA leave, could equal resignation, and likely ineligible for unemployment benefits.
Expanded Unemployment Benefits:
Employees and contractors who don’t qualify for FFCRA leave are likely entitled to unemployment benefits, including employees who have been laid off, furloughed (i.e. paid or unpaid leave, usually with insurance), or on reduced pay or hours. The CARES Act added 13 weeks to Illinois’ normal 26 weeks, as well as a guaranteed $600/week. Typical job search requirements are generally waived.
CDC’s latest guidelines:
The guidelines now allow essential workers who've been exposed to COVID to work on-site as long as they follow precautions and don't show symptoms. They must wear a face mask for 14 days after exposure. Employers can check workers' temperatures, monitor for symptoms, and send sick employees home.
Confidentiality:
Disability laws require employers to store medical information about an employee in a confidential file separate from the employee's personnel file, including temperature results and infection with COVID-19.
Discrimination:
Employers can’t refuse to hire or employ an individual based on speculation that employee is high-risk (e.g. over age 65 or pregnant.) However, if there is medical evidence of risk, infection or exposure, an employer can postpone the start date or consider allowing telework.
Reasonable accommodations:
Employers must provide reasonable accommodations to individuals with disabilities, which enable them to perform the essential functions of their position, absent undue hardship to the company. If a job may only be performed at the workplace, reasonable accommodations may offer protection to a high-risk employee. Reduced schedules and telework are also possible accommodations to reduce exposure to others in the workplace.
- Lori A. Goldstein, Employment Lawyer, CRC Board Member
