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Contact Buckley Beal online about your legal concern, or call (404) 471-3725 for employment matters or (404) 913-7415 for business disputes and all other litigation needs. The following are frequently asked questions concerning the Coronavirus related to your employment. This information does not constitute legal advice but is designed to give guidance concerning available government resources during this pandemic. We stand ready to assist you in the event you have legal needs related to your employment.

Q: I am immunocompromised and/or have an underlying medical condition and my job is still requiring that I come to work. What can I do?

Even with leaders in many states (including Georgia) issuing “stay at home” orders, some workers are still deemed essential and are required to report for work. If you are immunocompromised and/or have an underlying medical condition, and are worried about your safety and health at work, you have a few options. If you have a disability, you may be covered by the Americans with Disabilities Act, Amendments Act, which means that asking to work from home or away from anything that could compromise you medicaly could be a request for a reasonable accommodation. If feasible, you can request to work remotely. If working remotely is not feasible for your job, you can request an alternative accommodation, such as working in an area less exposed to the public or request that your employer provide you protective equipment. Alternatively, if your employer has fewer than 500 employees, you may be eligible for paid leave under the Families First Coronavirus Response Act (“FFRCA”). Read more about those protections here. Otherwise, you may want to consider applying for short-term disability leave or leave under the Family Medical Leave Act, if applicable.

Q: Is my employer required to comply with the new laws passed by Congress related to COVID-19? When is the new law effective?

The answer depends on what type of employer you work for. The expanded family and medical leave provisions of the FFRCA apply to certain public employers and to private employers with fewer than 500 employees. For public employers, all public organizations subject to the Fair Labor Standards Act (“FLSA”) are subject to the provisions of the FFRCA, regardless of the number of employees. If you work for a private employer with more than 500 employees, your employer is not required to comply with the provisions of the FFRCA. Whether or not an employer has 500 employees is measured at the time the leave is taken, and only employees in the US or its territories are counted. Employees jointly employed with another employer and employees supplied by a temporary employment agency should be counted. Independent contractors are not considered employees.

If you work for a small business with fewer than 50 employees, your employer may be exempt from certain requirements to provide leave due to school closings or a lack of childcare, if the leave requirements of the FFCRA jeopardize the viability of the business. However, even small businesses with fewer than 50 employees will not be exempt from providing emergency paid sick leave for other qualifying reasons under the FFCRA (besides school closings/ lack of child care), such as the imposition of a federal, state, or local quarantine order; where the employee has been advised by a health care provider to self-quarantine; where the employee is experiencing symptoms of coronavirus and seeking diagnosis; or, where the employee is caring for an individual who has been advised to self-quarantine.

The new law is effective, and employers are expected to comply by April 1, 2020.

Q: Am I eligible to take leave under the new laws (specifically the FFCRA, which includes the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act)?

You may be eligible for paid leave under FFCRA if you and your employer meet certain criteria. There are two types of leave that are available: “paid sick leave” under the Emergency Paid Sick Leave Act (“EPSLA”) and “expanded family and medical leave” under the Emergency Family and Medical Leave Expansion Act (“EFMLA”). These new laws cover paid leave taken between April 1, 2020 and December 31, 2020.

Under the EPSLA, paid sick leave is provided for up to eighty hours of work, which is two typical work weeks, and is subject to the qualifying eligibility criteria below.

You may be eligible to take this paid if you are unable to work or telework due to a need for leave because you:

(1) are subject to a Federal, State, or local quarantine or isolation order related to COVID-19;

(2) have been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or

(3) are experiencing symptoms of COVID-19 and are seeking medical diagnosis.

Your pay will be the greater of: your regular rate of pay, the federal minimum hourly wage in effect under the FLSA, or the applicable State or local hourly minimum wage. In these circumstances, you are entitled to a maximum of $511 per day, or $5,110 total over the entire paid sick leave period.

You may also be eligible for up to eighty hours of paid sick leave if you are unable to work because you are:

(1) caring for an individual who is subject to a Federal, State, or local quarantine or isolation order related to COVID-19 or an individual who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;

(2) caring for your child (including adult disabled children) whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons; or

(3) experiencing any other substantially-similar condition that may arise, as specified by the Secretary of HHS.

In this case, you may be entitled to compensation at two-thirds of the greater of the amounts above, subject to a maximum of $200 per day, or $2,000 over the entire two week period. The FFCRA’s 10 day emergency paid sick leave allotment can be taken on top of any existing paid leave that an employer already provides.

According to the Department of Labor, Congress intended for the EPSLA to provide part-time employees with sick leave hours equal to 14 times the average number of hours the employee worked per calendar day over the six month period ending on the date the employee takes paid sick leave, including hours the employee took leave of any type. For employees who worked less than six months, the employer should calculate the employee’s average hours over the entire period of employment.

Under the EFMLA, which can apply after the first two weeks of paid leave discussed above, certain employees are provided with up to ten weeks of paid leave if they are unable to work or telework in certain situations.

You may take paid sick leave for the first two weeks of that leave period, or you may substitute any accrued vacation leave, personal leave, or medical or sick leave you have under your employer’s policy, which you may consider doing if you get more pay. For the following ten weeks, you will be paid for your leave at an amount no less than 2/3 of your regular rate of pay for the hours you would be normally scheduled to work.

If you take paid sick leave during the first two weeks of unpaid expanded family and medical leave, you will not receive more than $200 per day or $12,000 for the twelve weeks that include both paid sick leave and expanded family and medical leave, when you are on leave to care for your child whose school or place of care is closed, or whose child care provider is unavailable due to COVID-19 related reasons. If you take employer-provided accrued leave during those first two weeks, you are entitled to the full amount for such accrued leave, even if that is greater than $200 per day.

For more information, click here.

Does the FFRCA allow me to take paid leave on an intermittent basis?

If you are able to telework your normal work schedule due to one of the qualifying reasons for paid sick leave, you and your employer may agree to take your leave intermittently, while teleworking. You should be sure to get approval for your intermittent leave in writing to avoid disputes later. This also applies if you are prevented from teleworking your normal schedule of hours because you need to care for your child whose school or place of care is closed, or whose child care provider is unavailable because of COVID-19 related reasons.

If you are working at your normal worksite, taking intermittent leave is less flexible. Unless you are teleworking, paid sick leave for qualifying reasons related to COVID-19 must be taken in full-day increments. Unless you are teleworking, once you begin taking paid sick leave for one or more of the qualifying reasons, you must continue to take paid sick leave each day until you either (1) use the full amount of paid sick leave or (2) no longer have a qualifying reason for taking paid sick leave. This limit is imposed because if you are sick or possibly sick with COVID-19, or caring for an individual who is sick or possibly sick with COVID-19, the intent of FFCRA is to provide such paid sick leave as necessary to keep you from spreading the virus to others.

If you are taking paid sick leave to care for your child whose school or place of care is closed, or whose child care provider is unavailable because of COVID-19 related reasons, you may be able to take intermittent leave based on a scheduled agreed upon with your employer, for days of the week to work. For example, with employer’s permission, you may take paid sick leave on Mondays, Wednesdays, and Fridays to care for your child, but work at your normal worksite on Tuesdays and Thursdays. You would not have to telework on the days you are permitted to take paid sick leave.

If you no longer have a qualifying reason for taking paid sick leave before you exhaust your paid sick leave, you may take any remaining paid sick leave at a later time, until December 31, 2020, if another qualifying reason occurs.

Intermittent expanded family and medical leave should be permitted only when you and your employer agree upon such a schedule. For example, if your employer and you agree, you may take expanded family and medical leave on Mondays, Wednesdays, and Fridays, but work Tuesdays and Thursdays, while your child is at home because your child’s school or place of care is closed, or whose child care provider is unavailable, due to COVID-19 related reasons, for the duration of your leave.

Q: Can I be forced to take PTO/ vacation time because of the coronavirus instead of working from home? Can my employer fire me instead of letting me work from home?

In general, employees in Georgia do not have a legal right to work from home, and the law does not prevent an employer from requiring an employee to use accrued leave time instead of permitting the employee to work from home, or from terminating an employee who can only work from home for purely personal reasons.

However, if you take a leave of absence from work that is covered by the Families First Coronavirus Response Act (FFCRA), your employer is specifically prohibited from requiring you to use up your accrued paid time off or vacation time before you use your FFRCA benefits. The qualified leave benefits to which you are entitled under the FFCRA exist in addition to any other leave benefits that are already provided to you by your employer. If you are terminated from your job because you asked for or took a FFCRA covered leave of absence, we strongly encourage you to schedule a consultation with the attorneys of Buckley Beal LLP to discuss whether you have a potential claim for FFCRA interference or retaliation against your employer.

Q: I lost my job due to COVID-19. What help can I get?

It depends on why and when you lost your job, and the size of your employer. If you were terminated after 4/1/2020, and your employer has fewer than 500 employees, the new FFRCA may apply to you, and you may have redress against your employer.

Regardless of whether the FFRCA applies, if you have been terminated related to COVID-19, you should file for unemployment benefits online with your state’s department of labor. In Georgia, individuals may receive unemployment benefits for 26 weeks and do not currently need to fulfill the work search requirement. Under the FFRCA, an additional $600 will be provided to individuals who are collecting regular state unemployment insurance. This additional federal benefit will be provided until July 31, 2020.

Many Americans are also entitled to the Economic Impact Payments, which are automatically directly deposited into your account on file with the IRS if you filed taxes in 2018 and 2019 (or receive Social Security or Railroad retirement benefits). This Economic Impact Payment is based on your adjusted gross income.

Also consider other non-employment related relief that may be available to you:

  • Federal student loan no interest forbearance of payments: 0% interest will accrue on Direct, Perkins and FFEL loans and they will be placed in temporary forbearance from 3/13/2020 until 9/30/2020.
  • Housing in Atlanta: There is an eviction moratorium on the Atlanta Housing Authority, Atlanta Beltline Inc., the Fulton County/City of Atlanta Land Bank Authority, Invest Atlanta, Partners for Home, and the city Department of Grants and Community Development.
  • Certain other providers will suspend/reduce or allow for continuation of services despite non-payment IF you contact them and directly state that you are “unable to make payments due to COVID-19.” For example, Georgia Power has temporarily suspended disconnections until 4/15/2020 and will reevaluate and announce continuation of suspension on its website. As for mortgages, Fannie Mae and Freddie Mac have asked lenders to work with borrowers. All major cell phone and internet carriers have programs in place to waive certain fees or suspend payments.

Q: If I am furloughed, is my employer legally obliged to rehire me in the future?

If you have been furloughed, you have not been fired or laid off from your job. To the contrary, you are still considered an employee. You are simply being forced to take a break from work without pay or to reduce the days or hours that you work. So, a furlough is a temporary status and you usually will get to return to work, and return to the same compensation level and seniority status.

Q: If I’m furloughed, is my employer obliged to pay me any part of my salary during the furlough? Should I apply for unemployment?

If you are furloughed, that means you are either not working or your work hours or days have been reduced for a temporary period of time. If you are an hourly worker, your employer only needs to pay you for the time you actually worked. If you are not working, your employer is not legally obliged to pay you during this time period. Typically, though, employees keep their health insurance during this time frame even though they may lose their paychecks. You should consider applying for unemployment insurance benefits during the time period for which you are considered a furloughed employee.

Q: I am unable to work from home because I have to care for a family member or my children, can I get paid leave?

Possibly. Depending on the type of employer you work for and the individual you are caring for, the Families First Coronavirus Response Act (“FFCRA”) may be available to you.

If you are unable to attend work or telework because you are caring for a child whose school or place of care is closed (or whose child care provider is unavailable) for reasons related to COVID-19, you are eligible for up to 12 weeks of paid leave. The first two weeks of leave is under the FFCRA’s Emergency Paid Sick Leave (“EPSLA”) provision. Then, provided you have been working for your employer for at least 30 calendar days, you are eligible for up to an additional 10 weeks of paid family leave to care for a child under the Emergency Paid FMLA portion of the FFCRA. Oddly, the Department of Labor has interpreted the law finding that if an employee has already taken some FMLA leave prior to taking emergency leave under the FFCRA, that leave is applied against the total paid time available under the FFCRA, thereby reducing the amount of available leave as a result of the pandemic.

If you are unable to attend work or telework because you are caring for an individual subject or advised to quarantine or isolation as a result of COVID-19, you are eligible for two weeks of paid leave under the FFCRA’s Emergency Paid Sick Leave provision. You may also be eligible for unpaid leave under the Family Medical Leave Act which pre-dates the COVID-19 crisis. Specific qualifying rules apply in that situation so it is best to contact legal counsel or your employer’s Human Resources representative to determine if you would qualify for traditional FMLA leave.

Q: My employer implemented salary cuts, but only for certain individuals. Is this allowed?

It depends. If your pay has been cut and other employees with similar job duties have not, it is important for you to contact an attorney to help you determine if unlawful discrimination has occurred under a false premise of COVID-19.

If your employer has only cut your salary and has not reduced other employees’ salaries, or has only reduced the salaries of individuals on a basis prohibited by any of the EEO laws (e.g. race, sex, national origin, religion, pregnancy, disability, or age), or made salary reductions in retaliation for you exercising rights under EEO laws, then your employer may be liable for unlawful discrimination under federal employment discrimination laws.

If your pay has been cut and other employees with similar job duties have not had their salaries cut as well, it is important for you to contact the lawyers at Buckley Beal LLP to help you determine if unlawful discrimination has occurred.

Can my employer treat me differently because it thinks I may have coronavirus, or because I have been diagnosed with coronavirus?

No. The Americans with Disabilities Act prohibits employers from discriminating against employees because they are “regarded as” disabled, even though they can perform the essential functions of the job. Such a claim must be evaluated on a case-by-case basis, but it could arise under the present circumstances, particularly where an employer takes an adverse action against an employee who is diagnosed with COVID-19, including, for example, reducing an employee’s salary, disciplining or terminating an employee.

Q: Can my employer take my temperature to determine if I am sick/infected?

Yes. Your employer may take your temperature to determine if you exhibit symptoms of COVID-19. Although normally this is considered a “medical examination” under the ADAAA, which employers cannot compel unless job-related or based on business necessity, the United States EEOC stated on March 18, 2020, that employers may require employees to have their temperatures taken if pandemic influenza symptoms become more severe than the seasonal flu, or if pandemic influenza becomes widespread in the community as assessed by state or local health authorities or the CDC. Since both the State of Georgia and the CDC have assessed that COVID-19 has become widespread in the United States and Georgia, employers will be in within their rights to take employees temperatures while COVID-19 remains widespread in the community. In addition, your employer will be permitted to take your temperature or subject you to further medical examination if your employer has a reasonable belief, based on objective evidence, that: your ability to perform essential job functions will be impaired by a medical condition; or you will pose a direct threat due to a medical condition. Due to the highly contagious nature of COVID-19, your employer will likely be able to successfully argue that you will pose a direct threat if you spread the coronavirus to other employees, and therefore may take your temperature at the very least to determine if you have a fever that may indicate COVID-19 infection.

Can my employer ask me to stay home or leave work if I exhibit symptoms of COVID-19?

Yes. During the COVID-19 pandemic, your employer may also require employees exhibiting COVID-19 symptoms to leave work. Employers cannot single out employees either to telework or to continue reporting to the workplace on a basis prohibited by any of the EEO laws (e.g. race, sex, national origin, religion, pregnancy, disability*, or age), or in retaliation for exercising rights under EEO laws. But if any employer prevents an employee who tests positive for COVID-19 from coming to work, that would not be considered “singling out” in violation of an EEO law.

During the COVID-19 pandemic, your employer may also undertake other infection-control strategies, such as: requiring employees to wash their hands and wear protective equipment (masks, gloves, goggles); implement coughing/sneezing and proper tissue usage/disposal procedures; ask employees if they are experiencing symptoms of the pandemic virus, which information would constitute a confidential medical record under the ADA; and require doctor’s notes certifying fitness for duty after an employee returns to work after having a COVID-19 diagnosis. An employer may not, generally, ask employees who have exhibited no pandemic influenza symptoms whether they have a medical condition that the CDC says would make them vulnerable to COVID-19.

For more information, see the U.S. Equal Employment Opportunity Commission’s guidance on employee rights during a pandemic response.

If your employer asked you to leave work due to suspected COVID-19 infection, the FFCRA may apply to you and you may be eligible for paid leave.

Q: I am a healthcare or public safety worker being exposed to a heightened risk of contracting COVID-19 through my work. What happens if I get sick?

As soon as possible, report your illness and symptoms to your immediate supervisor and also the human resources department. Make the report in a written documentation; by email if you are confined to home. As a healthcare or public safety worker, you should request a COVID-19 test both through your employer and through your hospital. Once you receive results, provide those results to your immediate supervisor and the human resources department, again in a written communication. If you test positive for COVID-19, and are disabled from working, you may be entitled to Georgia workers compensation coverage, including weekly income replacement benefits and 100% medical coverage and treatment for all COVID-19 related physical and psychological injuries. You will need a lawyer experienced in workers’ compensation to handle filing a claim with the Georgia Board of Workers’ Compensation. You will not need to pay the lawyer any hourly fees, as these cases are all required to be taken by lawyers on a contingency basis set by statute and supervised by administrative law judges. Buckley Beal LLP has extensive experience with all types of workers’ compensation cases that result in loss of income due to being disabled from working, or that unfortunately result in death of the worker.

Q: My hours have been reduced due to COVID-19 but I’m still employed. Can I get any assistance?

The federal government is allowing states to expand eligibility for unemployment benefits because of the impact of COVID-19. If your hours or pay have been reduced because of COVID-19, you may still be eligible for partial unemployment compensation; however, most of what you currently earn will be subtracted from your benefit amount. You may also be eligible for benefits if you have been forced to take a part-time position and you are unable to get additional work.

The Georgia Department of Labor has passed an emergency rule requiring employers to file claims for partial unemployment benefits online on behalf of employees who have had their hours reduced due to COVID-19. Employers must file claims on behalf of all full- and part-time employees whose hours have been reduced due to the lack of work and who earn an amount not exceeding their maximum weekly benefit amount plus $50.

The CARES Act also extends the time period you’re able to claim state unemployment benefits by an additional 13 weeks on top of your state’s maximum, and increases unemployment benefits by an extra $600 per week for up to four months.

Q: Is having COVID-19 considered a disability?

It depends what symptoms you are experiencing.

If you were exposed to COVID-19, but are experiencing no symptoms or only mild/temporary symptoms, COVID-19 alone likely would not qualify as a “disability” under the Americans with Disabilities Act (“ADA”). However, if your COVID-19 symptoms are severe or if COVID-19 complicates or worsens one or more of your other health condition(s)/disabilities, you may be entitled to “reasonable accommodation” from your employer and protection under the ADA. This disability assessment is performed on a case by case basis and whether you're covered or not will be depend on the extent to which COVID-19 affects your ability to complete your job duties with or without an accommodation, and how the COVID-19 symptoms are impacting your daily functions.

If a medical professional has certified that you are unable to work due to having or being exposed to COVID-19, you can apply for short-term disability. If approved, short-term disability will provide you with a percentage of your salary, depending on your employer’s plan.

Q: Under what circumstances can my employer ask me to leave work related to COVID-19?

Employers can lawfully ask you to leave work if:

      1. You exhibit COVID-19 symptoms;
      2. You were asked and confirmed that you are experiencing COVID-19 symptoms;
      3. You refuse to provide a doctor’s note certifying fitness for duty before returning to work after having a COVID-19 diagnosis;
      4. You refused to have your temperature taken when it was required of all employees in your role; OR
      5. You refused to wear protective equipment or take other precautions required of all employees in your role.

If you are not yet an employee on payroll but are an applicant or new hire, your employer can withdraw your offer or deny you a position if you:

  1. Refused a screening for COVID-19 that was required of all applicants for your position;
  2. Failed to pass the screening; OR
  3. Have been diagnosed with COVID-19.

Q: My company did not inform me that I was working with people who were COVID-19 positive. Do I have rights?

If you learn that you are working with people who have tested positive for COVID-19 and are concerned for your safety in the workplace, you have rights. If you believe your workplace is unsafe for any reason related to COVID-19, you can report a potential safety violation to the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA). The lawyers at Buckley Beal LLP are glad to consult with you to discuss your safety concerns and the process for filing a complaint with OSHA.

If you contract COVID-19 from exposure to a co-worker, and are disabled from working, you may be eligible to seek workers’ compensation benefits to cover your lost income, medical coverage, and the cost of treatment for COVID-19 related physical and psychological injuries. If you believe you have contracted COVID-19 on the job, please contact the experienced workers’ compensation attorneys at Buckley Beal LLP to discuss filing a claim with the Georgia Board of Workers’ Compensation.

For more information, you may want to review the following links:

Families First Coronavirus Response Act: Employee Paid Leave Rights

Families First Coronavirus Response Act: Questions and Answers

COVID-19 and the Fair Labor Standards Act Questions and Answers

What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws

COVID-19 Overview - US Department of Labor

Memorandum on Making General Use Respirators Available

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