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COVID-19 and Employment Law

If you are an employee, you may be confused about your employment rights and obligations during the coronavirus shutdown. If you listen to your friends and the media, you may get many differnet answers to the same question. A lot of people are understandably confused and afraid. Below, we try to answer any questions you might have or send you to the appropriate resource if we do not have the answer.

The U.S. Congress has enacted many new, emergency labor and employment laws in response to the coronavirus shutdowns. The main piece of new federal law is called the Families First Coronavirus Response Act (FFCRA). The FFCRA includes 2 major subparts which relate to employment and labor laws: the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act. This page will go over some of the key components of these new laws and answer some common questions.

Leave Under the FFCRA

The FFCRA created special coronavirus sick leave rules and requirements. These new regulations are only applicable to companies with fewer than 500 employees. There are 2 two separate components of the new leave entitlements under the FFCRA: (a) emergency sick leave; and (b) expanded family and medical leave.

(a) Emergency Sick Leave

The new emergency sick leave requirements are applicable to ALL employees (part and full time), no matter how long they have been at the company.

Full Pay ESL:

Any covered employee will be entitled to 80 hours of “emergency sick leave” at their full rate of pay if:

  • The employee has tested positive and is subject to a direct quarantine order; OR
  • The employee becomes sick with COVID-19 symptoms and is seeking testing or medical diagnosis.

Two-Thirds Pay ESL:

Employees can get 80 hours of emergency sick leave at two-thirds their regular rate of pay if:

  • The employee has a legitimate need to care for someone who is subject to a quarantine order.
  • The employee has a legitimate need to care for children who are home because of school closings.
(b) Extended Family or Medical Leave

Employees are entitled to an additional 10 weeks of expanded family leave at two-thirds their regular rate of pay if the employee is unable to work (or telework) because they have a bona fide need to care for a child whose school or day care is closed due to COVID-19.

Working Remotely / Remote Working Policies

Many employers are voluntarily permitted employees to work from home in order to comply with social distancing guidelines. However, this is not compulsory. None of the newly enacted coronavirus laws guarantee employees the right to work from home.

What are My Rights if I Travel for Work?

If you are an employee at an “essential” business you can still be required to travel for work when necessary. None of the new coronavirus labor laws give employees a right to work from home if the employer will not allow it. Under OSHA rules, employees can refuse to travel only if there is a “realistic” threat to their health and safety. General travel for business probably does not amount to a realistic health threat, unless it requires travel to certain hot spot areas.

Do I Have to Come to Work During COVID-19?

The answer to this question depends largely on what type of company you work for and what job you have. Almost all states have issued orders requiring non-essential businesses to shut down. So if you work for company that is in a non-essential sector your employer cannot force you to come work. If your employer is defined as an essential business they are exempt from any shutdown order. If your job at the company is considered important or essential to the business operation you can be required to come to work.

Employee Refusal to Come to Work During Coronavirus

None of the new coronavirus laws give employees the right to refuse to come to work simply because they are concerned about COVID-19. Under OSHA regulations an employee can only refuse to come to work if the workplace presents a valid and reasonable danger to health and safety. Absent unique circumstances, employees at essentially businesses cannot refuse to come to work simply because they are worried about getting COVID-19.

How to Handle Suspected or Actual Employee Exposure to COVID-19

If an employee exhibits COVID-19 symptoms, employers are allowed to require them to leave work and stay at home. The employer can also ask them to seek medical attention. On March 18th, the Equal Employment Opportunity Commission (EEOC) issued regulatory guidance clarifying that employers can take the following actions if an employee exhibit symptoms of the coronavirus or the flu:

  • Take the employee’s temperature
  • Tell the sick employee to leave work and stay home
  • Require a doctor’s note before allowing sick employees back to work
Employee or Co-Worker Tested Positive for COVID-19

If an employee tests positive for COVID-19 there are no mandatory legal requirements or obligations. The CDC has issued advisory guidelines for how to handle this situation. These guidelines state that the infected employee should be sent home until medically cleared and all employees who worked closely with them should also be sent home. The name of the infected employee should be kept confidential.

Discrimination and Harassment During COVID-19

There are a number of federal and state laws that protect employees from various types of discrimination and harassment in the workplace. These laws remain in full effect during the coronavirus pandemic, even when employees are not physically present in the office anymore.

The fact that the coronavirus may have originated in China has led to incidents of harassment, exclusion, and other types of discrimination against people of Asian descent. The EEOC has issued a public notice reiterating that workplace discrimination based on national origin or ethnicity is prohibited. Age discrimination is also an increased concern since older people are at higher risk for COVID-19.

Retaliation for Exercising Legal Rights During COVID-19

A number of new laws have been created at both the state and federal levels to prohibit employers from taking action retaliatory actions against employees who exercise their rights under the FFCRA and other new coronavirus laws. The FFCRA contains fairly strong anti-retaliation provisions. Employers are not permitted to fire, discipline or otherwise discriminate in any way against an employee who claims paid leave under the FFCRA or files a complaint in relation to those claims.

ADA and Coronavirus

The coronavirus pandemic has created a number of unique issues for employers seeking to keep their workplace safe without violation protections of the Americans with Disabilities Act. The EECO has issued guidelines to explain how employers can deal with the pandemic while complying with the ADA. The EEOC guidelines address disability-related inquiries, allowable medical examinations, and reasonable accommodation obligations. Below are some of the key points from the EEOC guidelines.

  • Employees can be sent home if they have flu-like symptoms.
  • Employers can request health information from employees about flu-like symptoms, but information must be kept confidential.
  • Employers can take an employee’s temperature to check for fever.
  • Employers are permitted to ask questions about exposure to COVID-19 after employees return from travel.
  • Employees can be required to adopt infection-control practices such as hand washing.
  • Employees can be required to wear personal protective gear (gloves, face masks, etc.) at work.
  • Employers can required sick employees to provide doctors note before returning to work.
Employee Privacy and Coronavirus

Privacy laws in the U.S. do not provide employers with very clear guidance when it comes to sharing employee information. Group health plans are subject to very specific privacy rules under the Health Insurance Portability and Accountability Act (HIPAA). However, employers themselves are generally not subject to HIPPA and the same is usually true for health privacy laws at the state level.

The ADA and FMLA have privacy rules that limit what employers may request and how they may react to employees' medical information related to COVID-19. An employer should not disclose the identity of an employee who has tested positive for COVID-19 to others in the workplace. Under the ADA, any information regarding the medical condition or history of an employee that an employer obtains as part of an examination or inquiry into a disability could constitute a confidential medical record that can be disclosed only to certain individuals in limited circumstances.

Employee Travel on Personal Time During Coronavirus Outbreak

One question that has arisen recently is whether an employer can prohibit employees from traveling during their personal time. The short answer to this question is NO, employers cannot restrict the right of their employees to engage in otherwise legal activities outside of work.

Filing for Unemployment Due to Coronavirus Pandemic

Unemployment benefits have been greatly expanded in response to the pandemic. At the end of March, the federal government enacted the Coronavirus Aid, Relief, and Economic Security (CARES) Act which gives states additional funding and the ability to extend unemployment benefits to workers impacted by COVID-19 shutdowns. Like most states, Maryland has fully adopted all of the expanded benefits under the CARES Act. Below is summary of the extended UI benefits Maryland’s workers can get under the CARES Act:

  • FPUC of $600 Per Week: Federal Pandemic Unemployment Compensation (FPUC) everyone will get an additional $600 per week in UC through the end of July.
  • PUA for Contractors & Self-Employed: Pandemic Unemployment Assistance (PUA) provides up to 39 weeks of UC benefits to individuals who normally do not qualify for regular unemployment. This includes independent contractors, freelance workers, small business owners and other self-employed individuals.
  • PEUC Extension of Benefits: for those individuals who were already nearing the end of their UC benefits when COVID-19 hit, the Pandemic Emergency Unemployment Compensation (PEUC) program extends benefits for an additional 13 weeks and gives.
  • Benefits for Part-Time Workers: part-time workers who lost their jobs due to COVID-19 are eligible to receive partial UC benefits, plus the extra $600 weekly.
  • New Employees: individuals who were not able to start a new job because of the coronavirus shutdowns will be eligible for UC benefits

For more information about CARES Act unemployment benefits in Maryland check out the Maryland DLLR’s CARES Act FAQ page.

OSHA Standards and Coronavirus

Under the Occupational Safety and Health Act (OSHA), employers have a generalized duty at all times to provide a workplace that is safe and “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” 29 U.S.C. § 654(a)(1). This may require employers in higher risk settings to provide personal protective equipment (masks, gloves, etc.) to employees.

Health Insurance Benefits and During COVID-19

Millions have been laid off or lost their jobs as a result of the coronavirus shutdowns, and millions more are expected to follow. Most people have health insurance through their jobs, so getting laid off means a lose of health insurance coverage. None of the newly enacted federal programs guarantee a continuation of health insurance for individuals who have been laid off due to COVID-19. Here is a summary of you have lost health insurance through your job.

  • COBRA: COBRA allows employees to continue their health care coverage after losing their job. The big drawback of COBRA continuation coverage, however, is that if you want to continue your coverage you have to pay for the full cost of that insurance out of your own pocket. This can be incredibly expensive, especially for someone who has just lost their income.
  • Affordable Care Act Coverage: If you lose your job and health insurance, getting new coverage under the Affordable Care Act (also know as Obamacare) will almost always be cheaper than continuing your existing coverage under COBRA. Anyone who losses health insurance after a job loss is automatically eligible for special ACA enrollment. To find out about ACA coverage visit HealthCare.gov

For those people who are currently uninsured and want to get health insurance to make sure they are covered if they get COVID-19, Maryland is one of 11 states that has opened the ACA marketplace for a special enrollment period in response to COVID-19. For information about Maryland’s special enrollment period check out this bulletin.

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