2020 arrived with a bang.  The COVID-19 pandemic has wreaked havoc on the U.S. as we’ve tallied more than 2 million cases and over 122,000 deaths (and counting).  For a time, the entire nation was locked down under mandatory quarantine.  But now, several months later, states are conducting phased “re-openings,” and employers are eagerly recalling workers back into the office.  For the most part, employees have voiced one of two opinions regarding their eventual return to the workplace: (1) They’re over the quarantine and can’t wait to get back to their normal lives, or (2) they fear returning to the office and believe the risk of becoming sick or spreading it to a loved one is not worth it.

So what options, if any, are available for employees who fall into the latter category? Can they simply refuse to return to the office AND keep their job?  In most cases, the answer is no.  However, there are a few exceptions:

Family First Coronavirus Response Act (“FFCRA”)

The Families First Coronavirus Response Act requires that certain employers provide employees with paid sick leave or expanded family and medical leave for select COVID-19 related reasons.

FFCRA provides paid sick time for employees who are unable to work or telework if:

1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19
   1. Up to 80 hours of leave for full-time employees
   2. Employees taking leave are entitled to pay at either their regular rate or the applicable minimum wage, whichever is higher, up to $511 per day and $5,110 in the aggregate (over a 2-week period)
2. The employee has been advised to self-quarantine by a health care provider due to COVID-19 related concerns
   1. Up to 80 hours of leave for full-time employees
   2. Employees taking leave are entitled to pay at either their regular rate or the applicable minimum wage, whichever is higher, up to $511 per day and $5,110 in the aggregate (over a 2-week period)
3. The employee is experiencing COVID-19-like symptoms and is seeking a medical diagnosis
   1. Up to 80 hours of leave for full-time employees
   2. Employees taking leave are entitled to pay at either their regular rate or the applicable minimum wage, whichever is higher, up to $511 per day and $5,110 in the aggregate (over a 2-week period)
4. The employee is caring for someone who has been placed under a Federal, State, or local quarantine or isolation order; or an individual who has been advised to self-quarantine by a health care provider due to COVID-19 related concerns
   1. Up to 80 hours of leave for full-time employees
   2. Employees taking leave are entitled to pay at ²⁄₃ their regular rate or ²⁄₃ the applicable minimum wage, whichever is higher, up to $200 per day and $2,000 in the aggregate (over a 2-week period)
5. The employee is caring for a child whose school or place of care is closed (or a child care provider is unavailable) for reasons related to COVID-19
   1. Up to 12 weeks of leave (two weeks of paid sick leave followed by up to 10 weeks of paid expanded family & medical leave) at 40 hours a week
   2. Employees taking leave are entitled to pay at ²⁄₃ their regular rate or ²⁄₃ the applicable minimum wage, whichever is higher, up to $200 per day and $12,000 in the aggregate (over a 12-week period)
6. The employee is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury
   1. Up to 80 hours of leave for full-time employees
   2. Employees taking leave are entitled to pay at ²⁄₃ their regular rate or ²⁄₃ the applicable minimum wage, whichever is higher, up to $200 per day and $2,000 in the aggregate (over a 2-week period)

These FFCRA provisions (enforced by the Department of Labor’s Wage and Hour Division) will apply through December 31, 2020.

Note: Although expanded family leave is available for employees whose child’s school or place of care is closed, businesses with less than 50 employees may qualify for an exemption from this provision if the leave would jeopardize the viability of the business as an ongoing concern.

In general, employees are covered under FFCRA if:

• their employer has 500 or fewer employees, and
• they’ve been employed for at least 30 days

Equal Employment Opportunity Commission (“EEOC”) and the Americans with Disabilities Act (“ADA”)

An employee may request a reasonable accommodation from their employer if they have one of the medical conditions the CDC has identified as putting them at higher risk for severe illness from COVID-19.

To qualify, the employee or a third party (such as their doctor) must request an accommodation from the employer for a reason related to their underlying medical condition.  The employer is allowed to ask questions or seek medical documentation to help decide if the employee has a disability, and if there is a reasonable accommodation they can provide barring undue hardship.

If the employee has been teleworking throughout the pandemic, they may ask their employer to allow them to continue working from home for an extended period of time.

Family Medical Leave Act (“FMLA”)

An employee who fears contracting the virus and potentially exposing it to an immunocompromised loved one in their care may seek extended leave under FMLA laws if they qualify.

If you have questions on whether any of these provisions may apply to you, please contact Madison Law, PLLC.