In the past six months, we have all seen an email, text, tweet, or post that begins with “During these unprecedented times.” At this point, “unprecedented” has become one of the top words that people never want to hear again. While it sounds rote, it is an accurate description of the seismic moment that we are currently facing, and “during these unprecedented times,” there are unprecedented legal issues for those dealing with the direct impact of the coronavirus pandemic (COVID-19) on their family and friends, physical and mental well‑being, and employment.
As businesses and schools begin to reopen, there are many people who feel significant discomfort and apprehension about returning to work in the midst of an uncontrolled pandemic. In addition to responsibilities that existed prior to COVID-19, people have had to take on new roles to adapt to the realities of the pandemic, such as household provider, teacher, and/or caregiver. It is also a heartbreaking reality that people are grieving the loss of a loved one or recovering from the virus themselves. People are weighing decisions about returning to work and the possibility of unintentionally exposing themselves or their children, parents, and co-workers to the virus. Some parents feel that they have no choice but to send their children back to in-person classes because they are unable to work remotely or unable to both work their jobs and teach their children through online schooling. Teachers and students are returning to schools that are not enforcing safety protocols, such as social distancing or mandatory mask wearing.
In sum, the reopening of businesses and schools has raised issues on personal and professional levels that are complicated and lead to larger questions of how employees can use the law to protect themselves and their loved ones.
First, the Families First Coronavirus Response Act (FFCRA) entitles employees of companies with 500 or fewer workers to emergency paid sick leave (EPSL) and expanded family and medical leave (EFMLA) if school is closed because of the pandemic. The EPSL provides two weeks paid sick leave and applies to all employees of covered employers who qualify for listed reasons. The EFMLA provides 10 additional weeks leave and applies only to those employed for 30 days with a covered employer who qualify because of COVID childcare unavailability. The FFCRA was signed into law on March 18, 2020 and went into effect on April 1, 2020. The FFCRA is set to expire on December 31, 2020, unless Congress extends the act. Once an employee exhausts the leave provided for in FFCRA, an employee is not entitled to more emergency leave. To access an extensive list of questions and answers that the Department of Labor has addressed, and Barrett & Farahany has compiled on its website. Additionally, you can read an explanation of the “Do’s & Don’ts in the Time of Covid-19,” in this blog post.
Second, the Americans with Disabilities Act (ADA), which applies to private and public entities with 15 or more employees, entitles employees with current or past disabilities to “reasonable accommodation.” Employees need to approach their employer to request an accommodation, but it does not have to be in writing or a formal request. Employers cannot retaliate against an employee in response to a reasonable accommodation request. Please note that there is no accommodation owed based on age alone. The accommodation request process is meant to be an “interactive process” between the employer and the employee, and there are a variety of accommodations that can be discussed, specific to COVID-19, including remote work, higher-quality personal protective equipment (PPE), leave time, rotating schedule, plexiglass barriers, HEPA filters, and modification of duties. In contrast to the FFCRA, when receiving an accommodation, employees are entitled to that accommodation for the duration of employment, provided there is no undue hardship on the employer. You can see a comprehensive review of how the ADA applies to accommodations related to COVID-19 here.
Third, the Occupational Safety and Health Administration (OSHA) and the Center for Disease Control and Prevention (CDC) both publish detailed information on workplace safety, and it is a good practice for employees to be aware of the latest guidance. The OSHA guidance sets out different phases and considerations for business in those phases. The CDC’s guidance provides for how to best protect oneself from the virus. You can see OSHA’s guidance on returning to work here and you can view CDC’s guidance on its website.
Employers can and should take proactive steps to support employees during the pandemic and assess if there is really a need to return to the office. Employers should consider tools to gauge their employees’ comfort levels, such as offering an anonymous survey to understand employees’ perceptions about returning to the office, evaluate childcare/eldercare situations, and receive feedback on how they can support employees. If employers are requiring in-office work, they should have a plan in place for what should happen when someone in the office contracts the virus. Employers should strive to be as transparent as possible about what they are doing to protect their employees who are being asked to work in person.
As you return to work, if you have any concerns about the procedures your employer is implementing, you should speak with your manager or supervisor about them. If you have any serious problems, you can reach out to us at 404-487-0903 or visit our website at www.justiceatwork.com to schedule a call with an attorney who can discuss any issues with you.
Resources for COVID-19 Relief: https://www.justiceatwork.com/covid-19-resources