This post is courtesy of Guest Blogger Lori Goldstein. As the challenges of the COVID pandemic and shelter orders continue, employees and independent contractors can benefit from new and continuing legal rights.

  • FFCRA Paid Sick and Family Leave: The Families First Coronavirus Response Act provides employees and independent contractors with paid sick and family leave if the employer has work available (i.e. employee is not on furlough or laid off), and one of 6 qualifying conditions causes the individual’s inability to work or telework:
  • government quarantine or isolation order (including shelter order) related to COVID;
  • health care provider advises self-quarantine for COVID;
  • experiencing COVID symptoms and seeking a medical diagnosis;
  • caring for an individual subject to order under (1) or (2);
  • caring for one’s child whose school/place of care is closed (or child care provider unavailable) due to COVID; or
  • experiencing any other substantially-similar condition specified by the U.S. Department of Health and Human Services.

Sick leave can be up to 2 weeks (80 hours) and is capped: for reasons 1-3 and 6, worker receives his regular rate of pay up to $511/day or $5,110 total. For reasons 4 and 5, individual receives 2/3 regular rate, capped $200/day or $2,000 in total.

Family leave is also available – for reason 5 only – for up to 12 weeks. Pay is at 2/3, capped at $200/day or $10,000 total. General right to reinstatement after family leave, with certain exceptions for small employers. Employees on leave CAN be subject to furlough.

Employers can’t force employees to use up accrued company-provided leave to take FFCRA sick leave.

Workers must provide documentation to support the leave, e.g. a doctor’s certification, verification of school closure.

Refusing to work out of general fear of exposure is not sufficient for FFCRA leave, could equal resignation, and likely render individual ineligible for unemployment benefits.

  • Expanded Unemployment Benefits: For a temporary period related to COVID, self-employed individuals, independent contractors, freelancers, sole proprietors, and gig workers (collectively “contractors”) not ordinarily covered by unemployment insurance laws can receive federal unemployment benefits under the CARES Act.

The new law provides up to 39 weeks of unemployment benefits, available retroactively from 1/27/20 – 12/31/20 for unemployment, partial unemployment, or inability to work caused by COVID. In addition, from 3/29/20 to 7/31/20, the federal government will provide an extra $600/week to all contractors and employees who qualify for state benefits.

Conditions for eligibility: Unemployment assistance will be available to such independent contractors under Section 2102 of the CARES Act if the individual certifies that he or she:

  • is diagnosed with COVID or experienced symptoms or is seeking a diagnosis,
  • has a member of his or her household that has been diagnosed with the illness,
  • is providing care to a family member with COVID,
  • has primary caregiving responsibility to a child that is unable to attend school due to COVID,
  • cannot reach his or her place of work because of a quarantine or advice of a health care provider to self-quarantine,
  • has become a breadwinner after the head of household has died from COVID,
  • has had to quit his or her work as a result of Coronavirus, or
  • has a work location that is closed as a direct result of a COVID public health emergency.

Partial unemployment: If an individual is working but hours or pay are reduced, many states provide partial unemployment benefits. In Illinois, for any week that the employee is earning less than half of her applicable weekly state unemployment amount, she will receive partial state benefits. Plus, for any week that a worker is entitled to state benefits – even $1 – the $600/week federal supplement will apply.

Contractors: In most states including Illinois, contractors must first file for state unemployment benefits (and be denied because state benefits don’t cover contractors.) Once denied, contractor can then submit a claim through the new federal unemployment portal. Receiving a denial for regular unemployment benefits is a mandatory first step in determining eligibility for PUA.

Caution: It may be tempting for employees and contractors to pursue the very generous federal benefits, which could be more than many individuals earn through their work. Others may refuse to work out of general fear of COVID. However, only those who truly qualify should apply and do so truthfully. An individual can’t simply choose not to accept work if the company has work available that you can do.

  • Disability Laws: Rights, Discrimination and Accommodations: Most employees are protected by federal or state disability discrimination laws. Illinois law protects both employees and contractors. During a pandemic health crisis, these laws permit employers to take employees’ temperatures, require a doctor’s note or a medical examination, or designate a period during which the employee has been symptom free before returning to work.

But employers must first have a reasonable belief – based on medical evidence of risk, infection or exposure – that the individual’s medical condition would impair his ability to perform essential job functions, with or without reasonable accommodation, or pose a direct threat to safety in the workplace.  A company can’t prohibit an individual from working on site out of concern that he may be at high risk of COVID solely because the employee has a disability, is pregnant or is a certain age.

Reasonable accommodations should be provided to individuals with disabilities if it enables them to perform the essential functions of their position, absent undue hardship to the company.  Generally, the worker or his doctor should request an accommodation based on the medical condition.  The employer may ask questions and seek medical documentation to help decide if the individual has a disability and if there is a reasonable accommodation that can be provided.

Examples of accommodation that may eliminate or sufficiently reduce a direct threat to an employee’s health include telework, modifying schedules (to decrease contact with coworkers/the public), moving the location of the worker (e.g. to the end of a production line for more social distancing), or erecting a barrier to separate employee and others.

  • Confidentiality: Disability laws require employers to maintain confidentiality of employee medical information and retain it in a confidential file separate from the employee’s personnel file. This includes temperature results and infection with COVID. If employer must notify employees of their potential exposure to a coworker with COVID, they cannot identify the coworker.

I continue to hear wonderful stories about the care, concern and compassion businesses are showing workers, beyond honoring legal rights. Companies understand the general stress during this time and the anxiety about working/returning to the worksite. Please stay safe and well as we transition to a “better normal.”

Lori Goldstein, a passionate employment lawyer since 1984, has a unique business and perspective, representing both employers/business owners and employees through her solo practice, the Law Office of Lori A. Goldstein LLC. Lori is practical and passionate about helping organizations and individuals achieve peaceful solutions to workplace issues, find closure, and move forward.

 

 

 

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