Employment and the COVID-19 Crisis

The COVID-19 pandemic has disrupted all aspects of life -- including work. Some employers have been able to maintain operations by allowing employees to work from home. Other employers, where home work is not feasible, have implemented staggered work hours and split shifts to reduce the total number of employees reporting to work at the same time. Other employers have been forced suspend operations entirely resulting in mass employee layoffs and terminations.

Developments in the employment field are changing rapidly as the COVID-19 pandemic evolves. Even so, there have been many reports of employers temporarily shutting-down operations due to COVID-19 outbreaks in the workplace and employees filing lawsuits alleging that they were subject to wrongful COVID-19 related terminations.

This article highlights some of the laws that may be relevant in the employment field to address COVID-19 issues in the workplace.

Paid Sick Leave for COVID-19 Illnesses

There is no doubt that employees with COVID-19 related symptoms should stay home from work. The Families 1^st Coronavirus Response Act provides for paid sick leave to employees impacted by the COVID-19 virus. 29 CFR § 826.20. The Act is effective April 1, 2020 through December 31, 2020 and applies to public employers and private employers with under 500 employees. In general, the Act requires that covered employers must pay employees up to 10 days of paid sick leave at the employee’s regular rate of pay where the employee is quarantined pursuant to advice from a health care provider or sick or experiencing symptoms from COVID-19.

Employees are entitled to up to 10 days paid sick leave at 2/3 of the employee’s regular pay rate for missing work due to caring for a family member subject to quarantine or caring for a child whose school or day care provider is closed due to COVID-19.

The Families 1^st Coronavirus Response Act is in addition to other sick leave and paid leave policies offered by an employer. In addition, employees who work in a union setting likely have additional rights to paid sick leave under their labor agreements.

The Act makes it unlawful to terminate or discriminate against an employee for taking paid leave under the Act. §826.150. The Act is enforced by the Department of Labor and employees can file complaints for violations of the Act with the DOL Wage and Hour Division. §826.152. Employees who feel sick should not feel pressure to go to work because they fear that if they stay home, they will be fired or miss a paycheck. Although this Act is not perfect, it does provide some additional protection to employees who must miss work due to COVID-19 related illnesses.

The Americans with Disabilities Act (ADA)

Employees who have existing disabilities under the Americans with Disabilities Act (ADA) may need to seek additional workplace accommodations due to the coronavirus. For example, an employee might have an existing health issue, when if infected with the virus, would lead to more serious complications. Serious health issues that could lead to higher risk of illness if exposed to the coronavirus include diabetes, heart or lung disease, asthma, a weakened immune system, or kidney disease according to the Centers for Disease Control (CDC).

The Equal Employment Opportunity Commission (EEOC) has published guidance addressing accommodations for employees who have concerns about exposure to the coronavirus. Employees who are concerned that their existing disabilities may be impacted by the coronavirus should seek reasonable accommodations. Reasonable accommodations may include temporary job restructuring to limit exposure to others in the workplace, permitting telework from home, erecting plexiglass guards to ensure minimum distances from customers and providing PPE gear. It is important to remember that an accommodation is not reasonable if it poses and “undue hardship” upon the employer.

An employer that wrongfully denies an employee a reasonable accommodation, or that terminates an employee because of a disability that is compromised by the coronavirus, may be subject to legal action under the ADA.

Employers have the right to take reasonable actions to check employees for the coronavirus or related symptoms. The EEOC states that disability-related inquiries and medical exams that are tailored to assessing whether employees are experiencing symptoms related to the pandemic virus are permissible. For instance, the EEOC states in its April 23, 2020 guidance that an employer may administer a COVID-19 test to an employee to detect the presence of the virus.  The EEOC further explains that taking an employee’s temperature, to monitor for fever, is a permissible medical examination during the pandemic.

Employers who have continued workplace operations should be taking steps to ensure that the workplace is safe and that the employer is complying  with applicable CDC guidelines. These steps may include making reasonable medical assessments of employees to check for COVID-19 related symptoms. That being said, an employer who fires an employee for testing positive for the coronavirus or for exhibiting coronavirus symptoms would likely be in violation of various laws including the ADA.

Age and Race Discrimination Laws in response to COVID-19 

The coronavirus has impacted certain age and race groups more severely. The CDC says that older adults, 65 years and older, are at higher risk for severe illness due to COVID-19. Some statistics have shown that persons over age 50 are susceptible to the most severe complications from the virus. COVID-19 appears to be hitting minority communities especially hard across the country. According to a University of Michigan April 9, 2020 publication, “African Americans account for 33% of COVID-19 cases and 40% of the deaths, according to state data, though they make up 14% of the state’s population.”

Employers must ensure that employees are not subject to workplace pandemic-related harassment. Employers should reduce the chance of harassment by explicitly communicating to the workforce that the fear of the COVID-19 pandemic should not be misdirected against individuals because they belong to a protected class like national origin, age or race.

In addition, an employer cannot discriminate against employees due to national origin, age, race or other protected categories and claim that the coronavirus justifies the discriminatory treatment. For instance, an employer cannot state it is laying off all persons over age 55 because it wants to protect older workers from the potential risks posed by the coronavirus.

Michigan’s Whistleblowers’ Protection Act

Governor Whitmer has issued various Executive Orders that impact the workplace. Executive Order 2020-42 prohibits an employer from requiring an employee to come to work unless the employee does critical infrastructure work or performs minimum basic operations. An employer who willfully violates this Executive Order may be guilty of a criminal misdemeanor.

An employee who believes that their employer is in violation of the Executive Order by wrongly classifying them as a “critical infrastructure worker” could file a complaint with MIOSHA, the Attorney General’s Office or local law enforcement.              

An employee may have a valid claim under the Whistleblowers’ Protection Act if an employer terminates an employee for filing a complaint asserting that the employee is being forced to come into work in violation of the Executive Order.

The question of whether an employer can fire an employee for speaking publicly -- for instance by posting workplace COVID-19 criticisms on social media -- is complex and requires an analysis of several factors. Employees should seek legal advice before speaking publicly or making public pronouncements on social media about their employers and the COVID crisis if they have concerns about how the public comments may impact their continued employment.

OSHA/MIOSHA 

Employees have the right to work in a safe workplace. If an employer is not taking proper safety precautions in light of the COVID pandemic, the employer may be subject to investigation by federal or state agencies. Employees have the right to bring legitimate workplace safety issues to the federal Occupational Safety and Health Administration or, in Michigan, MIOSHA. Section 11(c) of the Occupational Safety and Health Act, 29 USC 660(c), prohibits employers from retaliating against workers for raising concerns about safety and health conditions.

Michigan law similarly prohibits an employer from firing an employee, or otherwise discriminating against an employee, for filing a complaint with MIOSHA that an employer is not taking proper precautions to protect employees from COVID-19 exposure.

Know Your Employment Rights 

Ultimately, most employers will do the right thing and take proper precautions to ensure that the workplace is safe. Most employers will not wrongfully terminate employees based upon illegitimate COVID-19 pandemic related reasons. Employees have the right to request reasonable accommodations and to insist that employers comply with orders, regulations and guidelines that have been enacted in response to the COVID crisis.

However, if you believe that you have been subject to discrimination or wrongful termination or that you have been denied reasonable accommodations, you may have various legal protections. If you have a workplace concern related to the COVID-19 crisis, feel free to contact the attorneys at Kalniz, Iorio & Reardon.

This article does not provide legal advice and the COVID-19 pandemic is causing new developments by the day.