COVID-19: Keeping Your Job While Keeping Others (and Yourself) Safe
COVID-19 is here. Over the last week, we’ve seen just a glimpse of how life will change in the coming weeks and months. March Madness, St. Patrick’s Day Parades, concerts, and schools have been cancelled. Although difficult, these are steps in the right direction to limit the spread of a virus that could cripple our healthcare system and put our loved ones at risk.
Many employers have taken preventative steps, instructing employees to work from home or closing for the time being. However, many other employers are expecting their workers to arrive for their shifts as normal. If you’re one of the people in the second group, you’re likely wondering what options you have available if you or a loved one is diagnosed with COVID-19.
If so, you don’t need to wait until a positive test result. You can be preemptive. If you have a disability like diabetes, heart disease or lung disease, CDC guidance indicates that you will be at a greater risk if you contract COVID-19. Under state and federal law, you have the right to request a reasonable accommodation. Again, you do not have to wait until you contract the virus to make this request. A reasonable accommodation may be working remotely or taking medical leave to self-quarantine. You should express your concerns to your employer. Once your employer is aware of your disability, it has a duty to work with you to find a solution. Be prepared to provide a doctor’s note outlining your condition and be ready to discuss potential solutions.
A coronavirus diagnosis for you or a family member may make you eligible for FMLA leave. To qualify for FMLA leave, you or a family member that you are caring for must have a “serious health condition.” The FMLA defines a serious health condition as FMLA defines serious health condition as an illness, injury, impairment, or physical or mental condition that involves either: (1) inpatient care in a hospital, hospice, or residential medical care facility; or (2) continuing treatment by a health care provider. Under the current regulations, COVID-19 may not always qualify for FMLA leave, but we will provide updates as they become available from the Department of Labor (the federal agency that provides guidance for laws like the FMLA).
Were you sent home because your employer believed you may have contracted COVID-19?
COVID-19 alone likely does not constitute a disability under state or federal law. However, even if it did, your employer may be able to claim that it believed that you were a “direct threat” to others. The direct threat defense is a narrow exception to the general rule that employers may not discriminate based on disability. An employer’s determination that an employee poses a direct threat cannot be based on fears, misconceptions, or stereotypes about the employee’s disability. When relying on the direct threat defense, the employer must make a reasonable medical judgment, relying on the most current medical knowledge and the best available objective evidence. The factors an employer should consider are: (1) duration of the risk, (2) the nature and severity of the potential harm; (3) how likely it is the potential harm will occur; and (3) how imminent the potential harm is. Given the nature of COVID-19, there is a chance that a court would find for an employer that a direct threat exists.
To avoid this, be open with your employer and share if you’ve received a negative test result. If you or a family member has received a positive test result, ask your employer if you are eligible for FMLA leave.
Will I be paid if my employer ceases operations during the COVID-19 outbreak or if I miss work due to an infection?
This is a scary situation, and we wish that we had a clear answer—but we don’t. The situation depends on many factors, such as union contracts and what kind of benefits your job offers you. If you do not have paid leave, you may be able to apply for unemployment or short-term disability.
Currently, neither state nor federal law require employers to provide employees with paid sick leave. If you want to change that, contact your senators and representatives because a bill is currently being considered in D.C.
For the next couple weeks, our employees are working remotely with limited access to phones. If you believe your rights have been violated, you should speak to an attorney to know what your rights are. You can reach us through our website: click here.