Employment Rights During COVID-19

 

The information provided on this website is for general informational purposes only and does not constitute legal advice. Please contact Pisgah Legal Services or a private attorney if you need to speak with an attorney regarding your specific situation. You can apply online for Pisgah Legal at www.pisgahlegal.org/free-legal-assistance or call 1-800-489-6144.

updated 10/23/2020

main FAQs

 

Know Your Rights as an Employee: Family Leave, Sick Leave, Safe Work and more

 If you have questions about your rights as an employee, please check the resources on this page. If you need information on unemployment benefits, click here. If you need legal advice about an employment-related matter, you can apply to Pisgah Legal for help online at www.pisgahlegal.org/free-legal-assistance or call 800-489-6144.

Emergency Paid Sick Leave

Under the Emergency Paid Sick Leave (EPSL) Act, effective from April 2, 2020 through December 31, 2020, you are entitled to paid leave at your regular rate of pay for 10 business days (up to 80 hours) if you work for an covered employer and the leave relates to COVID-19, as defined below.

Covered Employers:

  • A private employer that has fewer than 500 employees total at all of its locations within the U.S. at the time of your leave, including temporary employees. This includes employers that are franchises, non-profits, and religious organizations; or
  • A governmental entity; however, some federal government employees are excluded from this type of leave because they are covered under different provisions of the FMLA rules.

Exclusions:  

  • Employers of most types of health care providers or emergency responders may elect to exclude such employees from EPSL leave.
  • If you work for an employer with fewer than 50 employees, and if you are taking leave to care for a child whose place of care is closed, note that these small employers may opt out of providing EPSL leave if providing such leave would jeopardize the viability of their business. This exclusion only applies to small employers and if the leave is for child care.

COVID-Related Reasons:

  • The employee is experiencing COVID-19 symptoms recognized by the CDC and is seeking medical attention; or
  • The employee or someone the employee is caring for (immediate family member or household member) is subject to a government quarantine or isolation order or has been advised by a health care provider to self-quarantine due to COVID; however, this does not apply to “shelter-in-place” orders; or
  • The employee is caring for a child whose school or place of care has closed due to COVID, or whose child care provider is not available due to COVID.

If you use EPSL leave to care for others, then your rate of pay will be 2/3 of your average weekly pay, (average over the past six months), with a cap of $200 per day or $2,000 total for the 10 days.  If you use EPSL leave because you have COVID-19 symptoms, then your rate of pay is 100% of your average weekly pay, with a cap of $511 per day or $5,110 total for the 10 days.

Note that EPSL leave can be taken only one time, even if you work for different employers; however, EPSL leave can be combined with the Emergency FMLA leave (see below) if applicable.  EPSL leave cannot be carried over to the next year, and it cannot be paid out when you separate from employment.  You will need your employer’s permission to take intermittent leave, and your employer may require you to provide documentation of the reason for your leave.  The federal government reimburses employer costs for this program through employer tax credits.

 

Emergency Family and Medical Leave

Under the Emergency Family and Medical Leave Expansion (EFMLA) Act, effective April 2, 2020 through December 31, 2020, if you are unable to work or telework because your child’s school or place of care is closed, or your child’s usual care provider is unavailable because of COVID-19, then you are entitled to up to 12 weeks of job-protected leave.  The first 10 days are unpaid (or are paid by EPSL leave as described above), but the remaining 10 weeks are paid at 2/3 of your regular pay (averaged over the past six months), with a maximum of $200 per day and $10,000 total.  A “child” includes adopted and foster children, wards, children for whom you are serving in loco parentis, and disabled adult children.  Unless excluded as explained below, you should be eligible if:

  • You have been on the employer’s payroll for at least 30 calendar days, no matter how many days you actually worked during that 30 days, regardless if you were a temporary or permanent employee; AND
  • You work for a private employer that has fewer than 500 employees total at all of its locations within the U.S. at the time of your leave, counting temporary employees. This includes employers that are franchises, non-profits, and religious organizations; OR
  • You are an employee of a governmental entity; however, some federal government employees are excluded from this type of leave because they are covered under different provisions of the regular FMLA rules.

Exclusions:   Employers of most types of health care providers or emergency responders may elect to exclude such employees from EFMLA leave, and employers with fewer than 50 employees may opt out of providing EFMLA leave if providing it would jeopardize the viability of their business.

If the child’s school is offering only remote programs on all or some days, then the school is viewed as closed for purposes of EFMLA leave on those remote-only days.  If your child is over age 14, you should be ready to explain in writing the special circumstances that require you to provide care.  You may be required to take any other available leave that your employer offers before using the EFMLA Leave, such as vacation, sick time, PTO, or personal leave, and you will need your employer’s permission to take intermittent leave.  You have a right to be restored to your original position once you return from leave, unless the employer has less than 25 employees and your position no longer exists due to changed economic conditions or changes in the employer’s operations.  However, the employer must make reasonable efforts to restore you to an equivalent position for up to one year.

Note that the regular provisions of the Family and Medical Leave Act, described below, are still available to allow for unpaid leave for an employee’s serious medical condition or need to care for a first-degree relative with a serious health condition.  For both EPSL leave and EFMLA leave, your employer should maintain your existing health care and other benefits as long as the benefit plan’s eligibility rules are met.  The federal government reimburses employer costs for this program through employer tax credits.

OTHER FAMILY & MEDICAL LEAVE

The Family & Medical Leave Act (FMLA) has been in existence since 1993 and is not a special rule enacted because of COVID.  It entitles “eligible employees” of “covered employers” to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. Eligible employees are entitled to:

  • Twelve workweeks of unpaid leave in a 12-month period for:
    • The placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement;

 

  • The birth of a child and to care for the newborn child within one year of birth;
    • To care for the employee’s spouse, child, or parent who has a serious health condition;
    • A serious health condition that makes the employee unable to perform the essential functions of his or her job;
    • Any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty;” OR

 

  • Twenty-six workweeks of unpaid leave during a single 12-month period to care for a covered servicemember with a serious injury or illness if the eligible employee is the servicemember’s spouse, son, daughter, parent, or next of kin (military caregiver leave).

 

Eligible Employees:  To be eligible for FMLA leave, you must:

  • Work for a covered employer (as defined below); and
  • Have worked 1,250 hours during the 12 months prior to the start of leave; (special hours of service rules apply to airline flight crew members); and
  • Work at a location where the employer has 50 or more employees within 75 miles; and
  • Have worked for the employer for 12 months. The 12 months of employment are not required to be consecutive in order for the employee to qualify for FMLA leave. In general, only employment within seven years is counted unless the break in service is (1) due to an employee’s fulfillment of military obligations, or (2) governed by a collective bargaining (union) agreement or other written agreement.

 

Covered Employers:  Only covered employers are required to offer FMLA leave to eligible employees. These are:

  • Public agencies, including local, State, and Federal government employers, and local education agencies (schools); and
  • Private sector employers who employ 50 or more employees for at least 20 workweeks in the current or preceding calendar year – including joint employers and successors of covered employers.

 

Safe Workplaces:

You have a legal right to a safe and healthy workplace. The NC Department of Labor (NCDOL) has information about how workers can protect themselves from COVID-19 here:

https://www.labor.nc.gov/coronavirus-disease-2019-covid-19#hazard-overview

 If things at my job aren’t safe, what can I do?

You have the right to file a complaint with OSHA if you think your workplace is unsafe.  You can file a complaint either online on NCDOL’s website, in writing, or by telephone (1-800-NC-LABOR). If you want OSHA to inspect your workplace, put your complaint in writing.  You can ask OSHA to keep your name confidential, so your employer won’t know who made the complaint.

If I raise questions about health and safety, can my boss retaliate or discriminate against me?

 It is illegal for your boss to retaliate or discriminate against you for questioning or making a complaint about health and safety.  He or she cannot transfer you, deny you a pay raise, cut your hours, or fire you because you took action regarding your health or safety. If you have been retaliated against because of a safety or health complaint, you have 180 days to file a retaliation complaint with NCDOL Retaliatory Employment Discrimination Bureau.

You have more protection if you complain with other workers. If you decide not to go back to work because of unsafe conditions, tell your employer exactly what you think is unsafe, and that you are ready to come back when the conditions are fixed.  Apply for unemployment benefits and explain that you are not working because your workplace is unsafe.  It would be helpful for your unemployment claim to have documentation of the unsafe conditions and your discussions with your employer.

Can my employer send me home if they think I have COVID-19?

Your employer can probably send you home as it sees fit, but you are entitled to paid leave.  See the information on paid leave above.

If you think your employer is discriminating in who it is sending home because of race, color, religion, gender, national origin, or another protected category, you can file a complaint with the Equal Employment Opportunity Commission (EEOC) within 180 days.

 

Thanks to our partners at NC Justice Center for Safe Workplace information.

The information provided on this website is for general informational purposes only and does not constitute legal advice. If you have questions about your rights as an employee or about securing unemployment compensation, please check the resources on this page. Please contact Pisgah Legal Services or a private attorney if you need to speak with an attorney regarding your specific situation. You can apply online for Pisgah Legal at www.pisgahlegal.org/free-legal-assistance or call 828-253-0406 or 800-489-6144.