Explanation of workplace rights under the law, including the new Families First Coronavirus Response Act
Q.I am worried about catching Coronavirus/COVID19; do I have to go to work?
A. Just being worried is not enough to get you out of work. Assuming you work at a place that is allowed to stay open as an essential service, your employer can generally require you to go to work.
While just being worried is not enough, if you work for an employer with less than 500 employees, there are some exceptions that allow you to take time off and also be paid for a short period of time. Examples of when you would be entitled to such short leave include:
- If a healthcare provider advises to take leave
- Employee has symptoms and is seeking a diagnosis
- Caring for kid whose school is closed
Q. My employer is not taking precautions to protect Coronavirus/ COVID19; what can I do?
A. If your employer is not following basic safety requirements, you should contact OSHA and report what is happening. OSHA has guidance like having soap and water available, discouraging workers from using others’ phones, and maintaining social distancing.
With that said, under OSHA rules, Employees are only entitled to refuse to work if they believe they are in imminent danger. This means a risk of death or serious bodily harm. That is a high standard.
Another idea is to seek protection under the National Labor Relations Act. This allows non-supervisory employees to stand up together and demand workplace protections. For example, you could circulate a petition demanding safety, or start an employee online Facebook page. If you are fired for doing so, you may have legal rights under the National Labor Relations Act and you can file a complaint with the National Labor Relations Board.
Q. I was laid off because of Coronavirus/COVID19; What are My Legal Rights?
A. There is a big difference between a wrongful termination and an unfortunate termination. If you feel that you were terminated because you exercised your rights under the Families First Coronavirus Response Act, you may have a wrongful termination claim. With that said, the vast majority of terminations are because of the economy and safety concerns. Those terminations are always unfortunate but usually not illegal.
The most immediate thing you should do is apply for unemployment. In Illinois, you can get nearly ½ of your compensation. Tell about your dependents as this will allow you to get more money.
One tip: Try applying late at night as the state’s website has been very slow. If you Google “Illinois apply for unemployment” the correct website should pop up.
If you have an employment contract: you may be eligible to keep getting paid through the duration of the contract. Most employees are “at will” but if you signed a contract when you started, be sure to review it for a duration. For example, some employment contracts are for a year or more.
Q. Do I get paid if I have to miss work because of COVID19/Coronavirus?
A. If you work for a company with fewer than 500 employees (or the government), you can get 2 weeks of sick leave at your regular pay rate (80 hours). Here are examples of when you are eligible:
- Employer subject to COVID19 quarantine order (or caring for someone who is)
- Healthcare provider advises to take leave
- Employee has symptoms and is seeking a diagnosis
- Caring for kid whose school is closed
In these situations, you are entitled to two weeks of pay for full-time employees (or the average of two weeks of pay for part-time employees).
Q. Can I take FMLA because of COVID19/Coronavirus?
A. Yes, the Family Medical Leave Act (FMLA) has been expanded on an emergency basis.
Here are the important eligibility criteria:
- Only need to have been on the job for 30 days.
- 500 or fewer employees
- First 10 days: unpaid leave (employer does not have to pay), except that you can use PTO, vacation, sick leave, etc. during that period of time.
- This is paid leave after 10 days: 2/3 of the regular rate of pay. (Subject to $200 per day/$10,000 total)
After 10 days of unpaid leave, your employer will pay you no less than two-thirds of your usual pay—up to $200 per day, and
$10,000 in total.
Q. I work for a small employer; do I still get the additional protections as a result of COVID19/Coronavirus?
A. The new emergency legislation states that the Department of Labor can exempt businesses with fewer than 50 employees from providing workers with paid emergency leave if this might jeopardize the financial viability of a small business. So if you work someone with only a handful of employee that has no income, the DOL would likely exempt. This leaves millions of employees uncovered as some 12 million Americans work for companies with fewer than 50 employees.