Navigate rights amid time of crisis

As COVID-19 roils workplaces, here’s what experts tell employees, employers

As businesses close in an effort to halt the spread of COVID-19, workers and employers are raising questions about their rights.

Here’s how attorneys answer some of these questions.

Q: Are employees who are not working because of Illinois’ stay-at-home order entitled to paid sick leave under the federal Families First Coronavirus Response Act?

Yes. The federal law, which goes into effect April 1, mandates employers give two weeks of fully paid sick leave if an employee is unable to work because they are experiencing COVID-19 symptoms or if they are under quarantine “pursuant to Federal, State, or local government order.” So employees ordered to stay home because they’re considered non-essential and who aren’t being paid because they can’t do their jobs remotely — including many in hospitality and retail — are eligible for this benefit, which is capped at $510 per day.

Employers will be reimbursed dollar-for-dollar for the paid sick time in the form of tax credits.

However, many employers worry they won’t be able to afford it in the meantime if revenues are down. Scott Cruz, a labor and employment attorney who works in the Chicago office of Greensfelder Hemker & Gale and represents management, is adthat vising clients with cash flow concerns to terminate employees, not just furlough them, so they are not on the hook for providing paid sick leave if they can’t afford it.

Meanwhile, lawyers representing workers are keeping an eye out for such terminations and could challenge them in court. Cody Reinberg, a Chicagobased attorney with HKM Employment Attorneys who represents employees, said it could be argued that firing people just before the law kicks in next week constitutes retaliation or interference with someone’s right to federal benefits.

Q: What is the difference between being terminated or furloughed?

Furloughed employees are unpaid and don’t work, but they continue to be employed by the company and retain their health and other benefits. Termination means you cease to be employed by the company and no longer receive benefits. You can claim unemployment insurance if you are furloughed or terminated.

Q: Do employees have to provide a doctor’s note or other proof of symptoms if they want to claim sick leave under the emergency leave act?

The law is silent on whether documentation is required. Cruz said many employers are concerned about the potential for abuse, so he is advising them to require evidence an employee is seeking a medical diagnosis.

Q: What protections are there for workers at companies with more than 500 employees, which are not covered by the Families First Coronavirus Response Act?

Chicago and numerous Cook County suburbs have laws that require all employers to let workers accrue an hour of paid sick time for every 40 hours worked, up to five days a year.

In addition, employers with more than 50 employees are covered by the Family and Medical Leave Act, which allows employees to take up to a dozen weeks of job-protected unpaid leave for reasons including a serious health condition or caring for someone with a serious health condition.

Q: Who is eligible for unemployment insurance? Any employee who has been laid off, furloughed or had their hours reduced can make a claim for unemployment insurance. Independent contractors, freelancers and other selfemployed people who are typically not covered by unemployment insurance will be under the stimulus deal being negotiated, so HKM’s attorneys recommend they also make a claim now. Illinois’ unemployment benefits typically replace 47% of a person’s lost wages, up to $484 a week for an individual, but the stimulus plan will add $600 weekly to that. Unemployment insurance is not available to people who have been terminated for misconduct or who voluntarily resign without good cause.

Q: Does an employer have to pay employees who are working from home even if there isn’t much work for them to do?

Salaried employees who are exempt from overtime rules must be paid their weekly salary if they work at all during that week, even if it’s just an hour.

Hourly employees who are not exempt from overtime rules must be paid for the time worked.

Cruz said employers can consider changing the status of salaried employees to hourly during this period if there is not much work for them to do. While that risks hurting morale, it could help some companies with cash flow issues from going out of business, he said.

Q: Can an employer require an employee to use paid time off if they are home and not working?

Yes.

Q: Are employers obligated to allow their employees to work from home if the work can be done from home?

Federal and state guidelines encourage it, but there is no legal requirement.

Q: Can employees considered essential under the state’s order refuse to show up for work?

No. If you are an at-will employee, you could be fired for not showing up. But you can ask to use sick or vacation time, or any other paid or unpaid time off, if you feel uncomfortable going to work.

Q: What if an employee is immunocompromised or lives with someone who is immunocompromised?

Employees who have an underlying health condition that makes them particularly vulnerable to getting sick, such as diabetes, could invoke the Americans with Disabilities Act to get a reasonable accommodation, such a work-from-home arrangement or unpaid leave. If, however, an employee lives with someone who is immunocompromised, it is “very up in the air” if the law applies, said Dan Kalish, an attorney with HKM.

Employees in that situation could use sick time or take up to 12 weeks of unpaid leave under the Families and Medical Leave Act, which covers caring for someone with a serious health condition.

Additional protections under the Families First Coronavirus Response Act, which provides for two weeks of paid sick leave at two-thirds your rate of pay if you are caring for someone who has been advised to self-isolate on coronavirus concerns, may also apply.

Q: What if the workplace feels unsafe?

Employers are legally obligated to provide a safe working environment.

Federal guidelines are recommending regular disinfecting of commonly touched areas, increased ventilation and 6-foot social distancing. Workers who feel their workplace is unsafe should report it to a manager to request changes and, if nothing changes, to the Occupational Health and Safety Administration, which will investigate. Employers are prohibited from punishing employees who flag safety issues.

If an employee decides to leave a work site because nothing is being done to make it safer, he or she could file an unemployment insurance claim.

Though people are typically not eligible for unemployment if they voluntarily resign without good cause, “if your employer is not practicing social distancing and not sanitizing responsibly, if you have reported this and suggested alternatives and they refused, I think you’d have good cause to leave and be eligible for unemployment,” Reinberg said.

Q: What recourse do employees have if they think their business should not be considered essential under the state order?

There does not appear to be a process set up for making an official complaint to the state. Reinberg advises reaching out to local alderman or state legislators to make them aware of their concerns.

Q: What are a company’s obligations to its workforce if someone at the work site tests positive for COVID-19?

An employer may not disclose the name of the person who has been diagnosed, but they should inform his or her co-workers of the situation so that they can self monitor for symptoms and take precautions to keep the workplace safe, such as by sanitizing the area or allowing people to work from home if possible. If they fail to take such precautions and someone else gets sick, the employer could open itself up to liability.