Coronavirus (COVID-19) and the Workplace

The COVID-19 crisis is having a dramatic effect on the American workplace, creating new risks, posing new economic challenges for employees, and prompting new legislation.   If you are looking to find and hire an advocate to help you with your questions during this crisis, or to assist you in vigorously enforcing your rights as an employee, Werman Salas P.C. can help.  Learn more about some commonly asked questions below.

Health Care Workers

  1. I work in health care and am concerned about the safety of my workplace during this crisis. What rights do have?

There have been reports of doctors and nurses facing retaliation by their employer for speaking out about their concerns regarding workplace safety during this crisis.  You have the right to report unsafe work conditions to your coworkers and your supervisors without retaliation.  If you are terminated for raising concerns about workplace safety, including inadequate Personal Protective Equipment (PPE) or COVID-19 exposure, you may have a claim for wrongful discharge.  Furthermore, if you do not return to work because you fear your employer’s policies put you at risk of death or great bodily harm, you may have a claim for constructive discharge.

Your employer is required to provide a workplace free from recognized hazards that are causing or are likely to cause death or serious physical harm.  The Occupational Safety and Health Administration (OSHA) has provided that this duty may include the requirement to provide Personal Protective Equipment (PPE) to employees, depending on that employee’s risk of exposure to known or suspected sources of COVID-19.  Employees who may face these risks include doctors, nurses, dentists, paramedics, emergency medical technicians, laboratory personnel, morgue workers, or medial transport workers.

  1. I work at a hospital and my hours have increased in light of the Covid-19 crisis. Am I owed overtime?

Under the Fair Labor Standards Act, hospitals and other institutions “primarily engaged in the care of the sick, the aged, or the mentally ill” are covered employers.  Under special rules, the 8 and 80 Overtime System, non-exempt employees are owed one and one-half times the employee’s regular rate of pay for all hours worked in excess of 8 in a workday and 80 in a fourteen-day period. The 8 and 80 system only applies if the employer has prior agreement or understanding with the affected employees before the work is performed.  If you are a non-exempt employee and have not agreed to the 8 and 80 system, you are owed overtime pay at the rate of at least one and one-half times your regular rate of pay for hours worked over 40 in a workweek. Your employer cannot require you to work through breaks without pay or work additional hours without pay.

  1. I believe that my employer is engaged in fraud relating to the new relief packages passed by Congress. Do I have the right to report this fraud?

Congress has authorized a multi-trillion dollar stimulus package to respond to the COVID-19 emergency.  If the past is any indication, emergency spending such as this creates new opportunities for wrongdoers seeking to profit and defraud the government during a time of public panic.

The False Claims Act protects your right to become a whistleblower and report fraud. If a government contractor makes money by knowingly misleading the government, you could help the government recover that money – and receive up to one-third for yourself – as a qui tam whistleblower.  The Department of Justice has specifically warned about the risks of fraudulent billing for tests and procedures during this COVID-19 crisis.

Furthermore, if you report illegal conduct and you get demoted or terminated, you may be owed compensation under anti-retaliation laws.

Sick Leave

  1. I am unable to work because I think I may have the coronavirus or I think I have been exposed to someone who has the coronavirus. Am I allowed to take time off work?

Certain public employers and private employers with fewer than 500 employees are required by the new Families First Coronavirus Response Act (FFCRA) to provide paid sick leave if you are unable to work, including unable to telework, because:

  • You are subject to a government quarantine order;
  • You have been advised by a health care provider to self-quarantine;
  • You are experiencing COVID-19 symptoms and are seeking medical attention.

You may be entitled to two weeks (up to 80 hours) of paid sick leave at your regular rate of pay, capped at $511 daily and $5,110 total.

You may also be entitled to up to 12 weeks of unpaid, job-protected leave under the Family and Medical Leave Act (FMLA).  That law also requires that group health benefits be maintained during the leave. The FMLA requires employers of 50 or more employees to give up to 12 weeks of unpaid, job-protected leave to eligible employees for the serious illness of the employee or a spouse, child or parent. To be eligible for FMLA leave, an employee must:

  • work for a covered employer;
  • have worked for the employer for a total of 12 months;
  • have worked at least 1,250 hours over the previous 12 months; and
  • work at a location in the United States or in any territory or possession of the United States where at least 50 employees are employed by the employer within 75 miles.
  1. I am unable to work because I need to care for someone who is under a quarantine related to COVID-19. Am I allowed to time off work?

Certain public employers and private employers with fewer than 500 employee are required by the new Families First Coronavirus Response Act (FFCRA) to provide paid sick leave if you are unable to work, including unable to telework, because you have a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider) and/or the individual is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor.

You may be entitled to two weeks (up to 80 hours) of paid sick leave at two-thirds your regular rate of pay capped at $200 daily and $2,000 total.

The Family and Medical Leave Act (FMLA) also requires your employer to provide you up to 12 weeks of unpaid, job-protected leave if an immediate family member requires care for a serious health condition.

  1. I am unable to work because I need to take care of my kids who are home from school or day care. Am I allowed to take time off work?

Certain public employers and private employers with fewer than 500 employee are required by the new Families First Coronavirus Response Act (FFCRA) to provide paid leave if you are unable to work, including unable to telework, because you are caring for your son or daughter whose school or place of care is closed or whose child care provider is unavailable for reasons related to COVID-19.

The law may require your employer to provide you with twelve weeks of paid sick leave at two-thirds your regular rate of pay, if you have worked for your employer for at least 30 days.  This leave is capped at up to $200 daily and $12,000 total.

If you have not worked for your employer for at least 30 days, you may still be entitled to two weeks (up to 80 hours) of paid sick leave at two-thirds your regular rate of pay

  1. Can I be fired for using leave?

An employer is prohibited from interfering with, restraining or denying any right you have to take leave under federal law.  The employer cannot retaliate against you or discharge you because you sought to exercise your right to leave.

  1. Can I be fired because I have the coronavirus?

You have the right under Title I of the Americans with Disabilities Act against discrimination on the basis of a disability.  Depending on the particular circumstances of your health, including any other health conditions you may have, you may be considered disabled under federal law.  If your employer is covered by the ADA, your employer cannot discriminate against you in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment.

Teleworkers

  1. Can my employer reduce my pay because I am working from home, rather than at the office, during the COVID-19 crisis?

Your employer probably cannot change your rate of pay if you are working at home because of a disability, or if you have an employment contract that sets your rate of pay and allows you to work from home.

Even if you do not have an employment contract, your employer needs to pay you for all hours you actually work, whether at home or at the employer’s office.  If you are a non-exempt worker, you are owed at least the minimum wage for all hours worked, and at least time and one half the regular rate of pay for hours worked in excess of 40 in a workweek.  If you are a salaried exempt employee, you are owed your full salary in any week in which you perform work, subject to certain very limited exceptions.

  1. Can my employer require me to cover costs that I incur because I am working from home, such as the costs of an internet connection, a computer, a printer, a fax machine, or increased use of electricity?

If you are a non-exempt employee covered by the FLSA, you cannot be required to cover the costs of business expenses if doing so reduces your earnings below the required minimum wage or overtime compensation.

  1. Can my employer require me to come to work during the COVID-19 crisis, even though I can perform my job duties from home?

There is generally no right under the law to work from home.  If you have an underlying disability that increases your risks of serious health consequences from a COVID-19, you may have the right to work from home, if telework is deemed a reasonable accommodation for your disability.

Employee Separations and Terminations

  1. In light of the economic conditions, my company has laid me off and offered me a severance package. Can I renegotiate it?

You should consult an attorney regarding your options to negotiate a higher severance payment.  Our employment lawyers have negotiated higher severance payments with advice tailored to an employee’s unique circumstances. It’s possible we can help you without your employer ever knowing you hired a lawyer.

  1. I agreed to a severance package with my former employer, but the employer is now withholding severance payment. Can they do this?

If you and your employer reached an agreement regarding your severance, and the employer is not honoring it, you may have a breach of contract claim.  Our attorneys have experience aggressively negotiating and litigating employment contract disputes.

  1. My former employer is withholding wages and commissions I have earned, stating they cannot pay under the current economic conditions. Can they do this?

No. All employees in Illinois, except those working for the state or federal government, are subject to the Illinois Wage Payment and Collection Act.  This law requires an employer to pay compensation owed under an employment contract or agreement.

Unlawful Changes in the Workplace

  1. I have been treated unequally at work or have been harassed because of my race or country of origin. What rights do I have to prevent this?

COVID-19 is a global pandemic, and media reports reveal some employees have faced harassment and discrimination as the crisis escalates.  Federal and state law protects from hiring, promotion, or termination decisions being based on your race or national origin.  You cannot be treated differently in the workplace because you come from a particular place, because of your ethnicity or accent, or because it is believed that you have a particular ethnic background.

  1. My employer has reduced my pay, stating it was necessary to do so because of the economic conditions. What rights do I have?

All covered non-exempt employees must receive at least the applicable Federal minimum wage, or higher state or local minimum wage, for all hours worked. In a week in which employees work overtime, they must receive their regular rate of pay and overtime pay at a rate not less than one and one-half times the regular rate of pay for all overtime hours. Minimum wage laws do not prohibit an employer from lowering an employee’s hourly rate, provided the rate paid is at least the minimum wage, or from reducing the number of hours the employee is scheduled to work.

If you are paid a salary, and your employer considers you a bona fide executive, administrative, or professional employee, exempt from the overtime laws, you may be owed overtime if your salary is reduced lower than $684 a week, and you work more than 40 hours a week.

  1. I received a job offer, but the employer has now withdrawn it. Can the employer do this?

The general rule is that employment is “at will,” thus an employer can terminate the relationship even before it even officially started.  However, in Illinois, if you relied on your future employer’s promise of a job, and the employer breaks that promise, you may be able to recover for expenses you incurred in reliance on the promise. For example, you may be able to recover wages you lost by quitting your prior job or moving expenses you incurred to relocate.