Employment Rights During a Pandemic: What Essential and Non-Essential Workers Need to Know

Jul. 14, 2020 By Andrew Miltenberg

Employment Rights During a Pandemic: What Essential and Non-Essential Workers Need to Know

The COVID-19 pandemic has created novel issues for employers and workplaces. As lawmakers try to enact protections for workers across the nation, there remains a lot of confusion as to what rights employees have during these uncertain times.

Employee Rights to Take Leave Under Federal Legislation

The Families First Coronavirus Response Act (FFCRA) requires private employers with fewer than 500 employees to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. These benefits are as follows:

  • Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay if the employee is unable to work because the employee is quarantined 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 need to care for someone subject to quarantine or to 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
    Up to an additional 10 weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay if an employee, who has been employed for at least 30 calendar days, is unable to work due to a need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.

Employers with 500 or more employees are subject to the Family Medical Leave Act (FMLA). The FMLA entitles eligible employees (generally those who have worked for the company for at least the preceding 12 months) to take up to 12 weeks of unpaid, job-protected leave in a 12-month period for specified family and medical reasons which should include the COVID-19 virus. However, the FMLA does not have any provisions for paid time off over and above what the employer provides to its employees in general.

An employer may require that an employee use their accrued paid time off prior to receiving the benefits under the FFCRA or FMLA.

Work at Home Options

Many employers are allowing certain employees to work from home and many states are ordering employers to close and allow their employees to work from home. While generally an employee has no legal right to work from home, absent a disability, the employer’s place of business is subject to health and safety requirements of the Occupational Safety and Health Administration (OSHA). OSHA has published guidance for employers to maintain the safety of their workplaces. Failure to maintain a safe workplace can lead to fines up to $13,494 per violation. Failure to make corrections after being cited by OSHA can result in fines up to $134,937.

Protected employees concerted action activities include employees’ refusal to work in unsafe conditions if done as part of group action or by a single employee on the authority of others. Employers that discipline employees who engage in such activities may be subject to liability for an unfair labor practice.

Furloughs and Layoffs

An employer has the right to furlough and lay off employees providing its doing so does not discriminate on the basis of race, religion, sex, gender, national origin, disability, age (age 40 or older), or genetic information.

Laid off workers are considered terminated and must receive a final paycheck for any work time and accrued benefits that are payable under the employer’s plan. They are eligible to continue health insurance under COBRA.

A furloughed employee is considered an employee with a certain mandatory number of unpaid days off. The employee continues to receive health care benefits and does not receive a final paycheck. 

Both furloughed and laid off employees are entitled to receive unemployment compensation, subject to state law requirements.

Rehiring Decisions

Employers generally have the right to rehire employees in their discretion provided that doing so does not result in discrimination against one of the classes stated above. Generally, an employer will publish a plan for rehire. Whether they do or not, you should consider whether a disproportionate number of non-protected employees have been rehired as opposed to employees in protected classes. An employment discrimination case can be made by a “disparate impact,” which is showing that rehiring disproportionately favors non-protected employees such as white males under age 40.

Have Your Employment Rights Been Violated?

If you believe your employment rights may have been violated during the pandemic, we can help. 

Our attorneys are employment discrimination specialists and we are determined, experienced advocates who work diligently on behalf of employees who have faced discrimination and retaliation in the workplace. To consult with one of our employment discrimination specialist, please call our New York City office at (212) 736-4500 or visit our contact us page. There is no fee for a private consultation.

Nesenoff & Miltenberg, LLP. is a civil litigation firm specializing in, among other areas, employment discrimination and retaliation litigation. The purpose of this blog is to inform readers of their rights in the workplace. This blog should not be construed as offering legal advice. If you feel you have been a victim of discrimination in the workplace, please contact us.