CORONAVIRUS (COVID-19) -
Coronavirus (COVID-19) for Employers
Families First Coronavirus Response Act
WHAT YOU NEED TO KNOW
If you are sick
If you have become ill with COVID-19 and require medical treatment, several laws and employer benefits may be applicable to you. Depending on the severity of your illness, your employer’s capabilities, and classification as an essential workplace, you may be entitled to paid time off under your employer’s existing benefit policy. You may also be entitled to an accommodation, such as remote work during isolation or quarantine. With regard to paid time off or sick leave, you are entitled to benefits under your employer’s policies, whether referenced as sick time, paid time off, or other leaves of absence.
In addition to paid time off, sick time, or vacation time, the federal government has enacted the Families First Coronavirus Response Act. This Act, effective April 1, 2020, applies to leaves taken from April 1, 2020 through December 31, 2020. This Act provides two forms of paid leave and is required for those employers employing less than 500 full and part time employees. Applicable to the situation where an employee is ill would be the Emergency Paid Sick Leave. Emergency Paid Sick Leave is capped at 80 hours. The employee should receive their regular pay, however, this regular pay is capped at $511/day or $5,110 in the aggregate for employees who have been diagnosed with COVID-19, have symptoms and are seeking a medical diagnosis, or are subject to a quarantine government order or health provider recommendation. Significantly, this leave will not apply if an employee has elected to self-quarantine because of personal fears of COVID-19. The employee’s isolation or quarantine must be mandated by either a health care provider or governmental entity.
If paid leave options have been exhausted and an employee is isolated or quarantined because they have COVID-19, a relative has COVID-19, or a physician has ordered a quarantine, the employee will generally be considered unemployed through no fault of their own. However, the employee would still need to meet other eligibility requirements, namely that the individual is able and available for work. An employee will be considered available for work if there is some work that they can perform through remote work. In other words, depending on the severity of illness, unemployment benefits may be applicable.
If a family member is sick or you need to be home with your child because of childcare
Under the Families First Coronavirus Response Act, it is a qualifying reason for Emergency Paid Sick Leave that an employee is caring for an individual under a government quarantine or health care provider self-quarantine order. It is also a qualifying reason that an employee is caring for employee’s child if the child’s school or childcare facility is closed or the childcare provider is unavailable due to COVID–19 precautions. Under Emergency Paid Sick Leave, the employee would be eligible for 80 hours of Paid Sick Leave, however, these benefits are capped at $200/day or $2,000 in the aggregate.
In addition, under the Families First Coronavirus Response Act, an employee may be eligible for Emergency Family Medical Leave. Under this leave, an employee can use up to 12 weeks of protected Emergency Family Medical Leave. The benefit of this leave is compensation at two-thirds of the employee’s regular pay after the first ten days. Note that the Emergency Paid Leave described above may cover an employee during the initial ten days. A substantial benefit of the Emergency Family Medical Leave is that, with limited exception for small businesses, the employer is required to return the employee to their same position when the employee returns from leave. In addition, unlike traditional Family Medical Leave, also known as FMLA, Emergency Family Medical Leave applies to employers of less than 500 employees. This includes employers that have between 1 and 50 employees.
If an employee were to voluntarily terminate employment because of childcare issues or caring for a sick family member, they would generally be disqualified from receiving unemployment benefits. However, given the statewide closure of schools, and closing of non-essential businesses, additional arguments for employees will be available that they are unemployed through no fault of their own.
If you are furloughed or your employer is in a temporary shut down
If coronavirus has forced your employer to cut your hours, take unpaid leave, or temporarily ended your employment, you may be eligible for unemployment benefits. For unemployment as a result of COVID-19, the federal government will be providing additional benefits beyond those provided by state unemployment agencies. Specifically, under the Coronavirus Aid, Relief, and Economic Security (CARES) Act, unemployment benefits will be supplemented by $600/week and an additional 13 weeks of benefits may be available. In addition, Illinois has waived the usual one-week waiting period, meaning you can begin to receive benefits immediately.
Ordinarily, in order to be eligible for unemployment benefits, you must certify to the state on a regular basis that you are actively seeking employment. If you have been temporarily laid off or furloughed as a result of COVID-19 and plan to return to the same employer, you do not need to meet the usual requirement of applying for positions while collecting unemployment benefits. Being prepared to return to work at your employer when the employer reopens classifies as actively seeking work.
If you have been furloughed and you are otherwise eligible for health insurance through your employer, you should continue to receive these benefits. Unless you are terminated, your health insurance should remain in effect.
If you are terminated
Unemployment benefits are a government benefit that provide temporary cash relief to employees terminated through no fault of their own. If you have been terminated from your employment, you may file for unemployment benefits. Although the Illinois Department of Employment Security (IDES) offices are closed, applications may be completed online. IDES has established an application schedule, so consult its website for what day of the week your application should be completed. If you have been terminated as a result of COVID-19, the federal government will be supplementing state unemployment benefits with $600/week under the CARES Act. If you have been terminated, you should apply for unemployment quickly in order to begin receiving these benefits.
In order to be eligible for unemployment benefits, you must be terminated through no fault of your own. This means that you cannot voluntarily leave your employment or be terminated for misconduct. In the context of the COVID-19 pandemic, these eligibility requirements mean that an employee who voluntarily leaves their position because of fears of coronavirus would likely be disqualified from receiving unemployment benefits unless it can be shown that there is a good reason attributable to the employer. For example, if an employer is not taking minimal precautions to provide a safe workplace would be attributable to the employer. An employee generally must make attempts to resolve these issues prior to leaving. In addition, it means that an employee who voluntarily ends their employment because issues or concerns over childcare would likely be deemed disqualified for unemployment benefits.
An additional concern when employment is terminated is the loss of benefits. Most concerning during a pandemic requiring medical treatment is health insurance. If you are receiving health insurance from your employer and are terminated or voluntarily resign your employment, absent an agreement with your employer to the contrary, this benefit will end. For this reason, the federal government has made it clear that furloughed workers are eligible for unemployment benefits. The goal here being to encourage employers to retain employees, and employee benefits like health insurance, even if the employer cannot afford to pay workers. In the event of termination, an employee would be eligible for continued participation in their employer-sponsored health plan under COBRA. However, many employees may find COBRA to be cost-prohibitive.
Also note that private funds are readily becoming available to supplement these government benefits. For example, if you are a bartender, cocktail server, or otherwise work in the bar industry, consider applying for the United States Bartenders’ Guild National Charitable Foundation’s Bartender Emergency Assistance Program. In other industries, other private funds are rapidly increasing. Consider how private or non-profit funds or programs can assist you during this time.
If you are being treated differently because of your national origin
At times, the messaging surrounding COVID-19 has placed blame for the virus on certain regions of the world. At other times, the prevalence of the virus in certain geographic regions has resulted in fear associated with these regions. All Illinois employees are entitled to a workplace that is free from discrimination based upon race, national origin, and ethnic background. No employee should be subjected to negative stereotypes. If you have faced discrimination from your employer based upon these characteristics, we would be happy to discuss the damages you have faced and remedies you may have.
If you require accommodations
During this pandemic, two types of accommodations are of concern for employees. The first is if you require accommodations for mild conditions relating to COVID-19. If you are physically able to work during a self-isolation or quarantine period because of contracting coronavirus, your employer may be required to accommodate you. Factors to be considered are whether contraction of COVID-19 constitutes a disability and the nature of your employer’s business, your job duties and responsibilities, and the health and safety of your colleagues and customers.
The other form of accommodation that may be applicable to an employee is for conditions that make the employee more susceptible to contracting COVID-19, such as a compromised immune system. If an employee has a qualifying disability, they are entitled to a reasonable accommodation for that disability. This is dependent upon your employer’s business, your job duties and responsibilities, and the hardship imposed on the employer in providing a reasonable accommodation. Telecommuting during the time of physical distancing has become a common accommodation. However, an employer is only required to accommodate disabilities that they are aware of. If an employee has not made the employer aware of his or her disability, the employer is not required to provide an accommodation. The employer is also not permitted to ask if you have a disability. This information must be voluntarily shared by the employee, but it must be shared before accommodations will be provided.
Your specific employment situation will always be unique. At DeSanto Morgan & Taylor, we seek to understand the uniqueness of your work and employment related issues in order to provide individualized consultation and advice. We offer employment consultations focusing on the uniqueness of your employment and providing individualized advice. We would be happy to speak with you today.