Coronavirus and Your Rights at Work

Charles Joseph

With a pandemic disrupting workplaces across the country, what laws protect workers affected by COVID-19?

After emerging in Wuhan, China in late 2019, the novel coronavirus outbreak quickly spread to countries around the world, creating a global pandemic. As COVID-19 cases increase in the United States, many workers are left wondering about their rights at work.

Will sick leave cover COVID-19 quarantines? Do people who catch the coronavirus qualify for FMLA? And what laws protect workers from discrimination or harassment because of the coronavirus outbreak?

Workers need to know about their rights to protect themselves in the workplace. We’ve provided the most current information in several key areas for workers affected by COVID-19. 

Keep in mind that the COVID-19 outbreak is changing on a daily basis. As local, state, and federal governments respond to the epidemic, the legal protections for workers may change. For example, new laws may provide extended sick leave protections or offer additional benefits to those affected by coronavirus. 

Sick Leave

According to the Bureau of Labor Statistics, 73% of private-sector workers have paid sick leave protections. That number jumps to 94% for managers, but only 58% of service workers have paid sick leave. 

State and local sick leave laws, including the NYC Paid Safe and Sick Leave Law, cover many COVID-19 absences, according to The National Law Review. In New York City, employees receive at least five days of sick leave.

However, in many cases paid sick leave laws may not cover quarantines where the employee is not showing symptoms. Similarly, sick leave protections may vary depending on whether the employer instructed the employee to stay home or if the employee is caring for a family member with COVID-19.

Unfortunately, very few employees have ten or more paid sick days per year, reports the Economic Policy Institute. With an incubation period of 14 days and recovery times that can stretch into the weeks, COVID-19 could easily burn through an employee’s sick time.

Employers can require their employees to use vacation time, PTO, or sick time to cover a COVID-19 absence from work. Employers can also require employees to use vacation time or PTO to cover a self-quarantine period. 

If you need to miss work because of the coronavirus outbreak, your employer can advance vacation time or PTO to cover your absence.

On March 18, 2020, the Families First Coronavirus Response Act added new protections for workers. The bill created a federal emergency paid leave program for workers. Under the program, employees can receive two weeks of paid sick leave for the following circumstances:

• They have symptoms of COVID-19
• They are under quarantine or isolation
• They are caring for someone in quarantine or isolation
• They are caring for children due to school closures.

The new federal law applies to employers with fewer than 500 employees and includes provisions for self-employed workers.

State governments may provide additional sick leave protections. Employers are also changing their sick leave policies in the face of the epidemic. If you believe your rights have been violated, contact an employment lawyer. 

FMLA

Will the Family and Medical Leave Act cover COVID-19? In some cases, yes.

FMLA provides job security for employees dealing with a “serious health condition.” The law also protects employees caring for a spouse, child, or parent with a serious health condition. 

COVID-19 may qualify as a serious health condition, depending on the severity of the case. For example, the FMLA defines a serious health condition as one that incapacitates the person for more than three calendar days and requires treatment by a healthcare provider. 

However, FMLA may not cover individuals who do not seek medical treatment. Similarly, FMLA would not qualify if the employee experiences an asymptomatic infection. 

Employees must also meet several qualifications to use FMLA protections. Individuals only qualify for FMLA protections after working for the company for 12 months, with at least 1,250 hours of work during the previous year. The employer must also employ at least 50 employees within a 75-mile radius for employees to qualify for FMLA. 

The Families First Coronavirus Response Act also provides expanded family and medical leave for employees unable to work because of COVID-19 or to care for a child because of COVID-19 closures. The Act includes up to 10 weeks of leave for employees who have worked at least 30 calendar days.

New York State Paid Family Leave provides up to 10 weeks of paid leave for workers caring for a family member with a serious health condition. However, the leave does not apply to workers who are sick. Your employer cannot retaliate against you for taking paid family leave.

Unemployment and Workers Compensation

Unemployment benefits, managed at the state level, may cover employees affected by coronavirus. 

In Washington state, for example, an emergency rule allows workers to receive unemployment benefits if their workplace shuts down temporarily because of a worker with a positive COVID-19 test. Workers asked to isolate because of COVID-19 exposure can also receive unemployment benefits. 

In Washington, workers who are temporarily laid off or face a cut to their hours because business slowed as a result of the coronavirus outbreak may also qualify for unemployment.

The New York Department of Labor manages unemployment insurance in the state and may cover workers who are fired for taking time off due to an illness. Similarly, New York’s Disability Benefits may provide short-term workers’ compensation benefits for employees who contract COVID-19 at work. 

However, many workers’ compensation laws only cover employees who contract an illness at work, and some state laws exclude contagious diseases spread by other employees. 

At the federal level, the U.S. Department of Labor Office of Workers’ Compensation Programs will cover federal employees who contract the coronavirus at work. The Federal Employees’ Compensation Act would cover medical treatment, wage loss, or a disability because of COVID-19.

Racial and National Origin Discrimination

As the novel coronavirus spreads, the U.S. has experienced a rise in racism and xenophobia, often targeting people linked to China. According to NPR, anti-Asian discrimination has targeted businesses and led to harassment and bullying. 

Anti-discrimination laws protect employees’ rights in the workplace. Racial discrimination and national origin discrimination laws prevent employees from treating people unfavorably because of their race, ethnicity, or their country of origin. 

Discrimination laws forbid harassment because of someone’s race or national origin. This can include offensive remarks about a person’s race or hostile comments that target people from a particular country. If harassment creates a hostile work environment, employees can file a lawsuit – even if they were not the target of the harassment.

Employers also cannot single out employees because of their race, national origin, or ethnicity. This includes only asking Asian employees about their recent travel or demanding medical information only from Chinese employees. 

The CDC guidelines for businesses warn against stigma and discrimination in the workplace, but some employers may still discriminate against employees. For example, excluding someone from work because of their race or national origin qualifies as discrimination. Similarly, travel policies that rely on race, ethnicity, or national origin may violate discrimination laws. 

If you experience workplace discrimination because of coronavirus, you can contact an employment lawyer for a free consultation. 

Disability Discrimination

Laws protecting workers from disability discrimination may apply to those affected by COVID-19. Disability discrimination laws cover people with disabilities and those perceived as disabled, which may cover employees with the symptoms of COVID-19. 

Employees who face harassment or other forms of discrimination because of a COVID-19 diagnosis or even the perception of having the novel coronavirus have protections under disability discrimination laws. 

Disability laws mandate that employers must provide reasonable accomodations for employees with a disability. In New York, sick workers may qualify for unpaid leave as a reasonable accommodation. 

Workplace Safety

The novel coronavirus outbreak has created new concerns about workplace safety. The CDC recommends that businesses let employees work from home, if possible. Workplace safety laws protect employees from potentially unsafe conditions. 

Workplace protections may cover employees who refuse to go to work because of COVID-19. For example, the National Labor Relations Act (NLRA) may allow workers to refuse to work in conditions they see as unsafe. 

Similarly, the Occupational Safety and Health Act (OSHA) may protect employees who refuse work assignments that could put them at risk of death or serious physical harm. NLRA and OSHA protect workers who exercise these rights from workplace retaliation. 

Remember, the coronavirus outbreak is changing on a daily basis, and new laws may provide additional sick leave or workplace protections for people affected by COVID-19. It’s important to stay informed and stay healthy during this pandemic.

Charles Joseph has over two decades of experience as an NYC employment lawyer. He is the founder of Working Now and Then and the founding partner of Joseph and Kirschenbaum, a firm that has recovered over $140 million for clients.