WE HOPE EVERYONE IS SAFE DURING THE COVID-19 / CORONAVIRUS PANDEMIC! CALL ROBERT MAIZEL ANYTIME AT 215-695-3000.
WE HOPE EVERYONE IS SAFE! WE ARE WORKING HARD DURING THE COVID-19 / CORONAVIRUS PANDEMIC TO HELP OUR CLIENTS, BOTH CURRENT AND NEW, WITH ALL OF THEIR LEGAL PROBLEMS.
ROBERT MAIZEL IS HERE TO ANSWER ANY LEGAL QUESTIONS YOU HAVE VIA TELEPHONE AT 215-695-3000. MY PHONES ARE ON AND WE ARE HERE TO SPEAK WITH YOU!
Coronavirus COVID-19 and Your Employment
Coronavirus COVID-19 is on the tip of everyone’s tongue, but how it affects your employment is uncharted territory. This is an emergency situation, but Employment Laws do apply.
Robert Maizel is an expert in the employment field and is free to consult about how the Coronavirus affects employment decisions and your employment. All of my meetings now are being conducted via telephone, Face Time or Skype. I can be reached at 215-695-3000.
Some of the most frequent questions come in the form of what type of leave am I entitled to.
FMLA – Family Medical Leave Act
Employees generally should be permitted to take FMLA or Family Medical Leave Time to accommodate the employee in caring for a family member who is affected by the Coronavirus. Likewise, employees should be afforded FMLA in the event that they are stricken with COVID-19 or exhibit the early signs of the Coronavirus. FMLA does apply in the event that a child is home because of school closures related to the Coronavirus / COVID-19.
Generally, employees are not permitted to take FMLA time to avoid getting sick at work, but employers should “think outside of the box” when faced with this question. Just because it may be unorthodox to request FMLA time to avoid sickness, does not mean that it is not permitted. In the case where an employee has a high-risk family member, FMLA may be a prudent option. Also, employers may want to err on the side of caution and permit FMLA leave in this case.
Employers may require that an employee use PTO (Paid Time Off), sick leave and/or vacation time before FMLA is used. Some employers have permitted employees to access their PTO, sick leave and/or vacation time early during this emergency, but it is not required. The City of Philadelphia has permitted its employees to access their banks early for Coronavirus / COVID-19 leave.
FMLA is only provided for employees of business with fifty (50) or more employees.
ADA – Americans With Disability Act
The ADA or Americans With Disability Act generally does not apply to CONVID-19 / Coronavirus because CONVID-19 is a transitory condition (non-permanent) which is not covered by the ADA. However, in the event that an employee has a pre-existing condition that may make them more susceptible to exposure or risk, an employer should offer an ADA accommodation to this employee.
Can I Be Sent Home From Work If I Exhibit Symptoms or Had Prior Exposure to COVID-19 / Coronavirus?
Yes. An employer has the absolute right to send you home to protect its other employees. An employer may also inform its other employees that one of its employees was exposed to the Coronavirus or that an employee is exhibiting symptoms of COVID-19, but the employer should not disclose the identity of the employee. Employee medical information is confidential. If your employer discloses your name to other employers, you may have a claim against your employer.
If you contract Coronavirus or COVID-19 at work, is this compensable under the Pennsylvania Workers’ Compensation Act? Possibly. If you are a healthcare worker or first responder, contracting Coronavirus at work may trigger a Workers’ Compensation Claim. In other situations, the cases would be very fact specific.
The Coronavirus / COVID-19 is not an “injury” as defined by the Pa. Workers’ Compensation Act, but is instead analyzed under Pennsylvania State Law to determine if it is an “occupational disease.” To be an occupational disease, an employee must generally show two things:
- the illness or disease must be “occupational,” meaning that it arose out of and was in the course of employment; and
- the illness or disease must arise out of or be caused by conditions peculiar to the work and creates a risk of contracting the disease in a greater degree and in a different manner than in the public generally.
If you contract Coronavirus / COVID-19 at work, I am available to discuss the specifics of your case to determine whether you are covered under the Workers’ Compensation Act.
SOCIAL DISTANCING – BUSINESSES THAT ARE OPEN
Businesses that have been deemed essential services and sectors include but are not limited to food processing, agriculture, industrial manufacturing, feed mills, construction, trash collection, grocery and household goods (including convenience stores), home repair/hardware and auto repair, pharmacy and other medical facilities, biomedical and healthcare, post offices and shipping outlets, insurance, banks, gas stations, laundromats, veterinary clinics and pet stores, warehousing, storage, and distribution, public transportation, and hotel and commercial lodging.
If you work in any of these industries, your employer must maintain policies for “social distancing” or keeping at least 6 feet from each other. Employers should provide the ability for regular handwashing, social distancing policies and cleaning products to keep work areas clean.
Recently Costco Wholesale’s corporate headquarters remained open and employees were required to report to work in the Costco headquarters where an employee died after contracting Coronavirus / COVID-19. Employers should not required any employees to report to work after any employee tests positive for Coronavirus or COVID-19.
WAGE AND HOUR & LOST INCOME
Must employers keep paying employees who are not working?
Under the Fair Labor Standards Act (FLSA), for the most part the answer is “no.” Employees who are not working are typically not entitled to the wages the FLSA requires. If an employee refuses to report to work where the business is open, and the employee is not performing their duties remotely, employers are not required to pay the employee subject to any and all PTO (paid time off), vacation pay and sick leave pay policies.
One possible difference relates to employees treated as exempt FLSA “white collar” or exempt employees whose exempt status requires that they be paid on a salary basis. Exempt employees are salary employees. Generally speaking, if such an employee performs at least some work in the employee’s designated seven-day workweek, the salary basis rules require that they be paid the entire salary for that particular workweek. The focus under FLSA is on the workweek, per week. There can be exceptions, such as might be the case when the employer is open for business but the employee decides to stay home for the day and performs no work. A U.S. Department of Labor (USDOL) opinion letter addressing these matters can be accessed here.
Non-exempt employees or those who are hourly workers even if they receive a “salary,” or better stated those who are entitled to overtime are to be paid for hours worked.
Employees that are laid off because of the Coronavirus / COVID-19 can apply for Unemployment Compensation. Employees whose hours are reduced because of Coronavirus / COVID-19 can apply for partial Unemployment Compensation. We all hope that layoffs and reduced work hours will not exceed six (6) months, but if it does the WARN ACT will apply for large layoffs.
COMMENTS IN THE WORKPLACE – NATIONAL ORIGIN
You should pay close attention to whether your have been subjected to comments in the workplace based on your National Origin related to Coronavirus / COVID-19. If you have been subjected to any such comments, you should report them to your supervisor immediately.
You may have a course of action against your employer related to any comments pertaining to your National Origin and Coronavirus / COVID-19.
Robert Maizel is an Experienced Trial Attorney in Philadelphia with over fifteen years of trial experience.
You will speak to an attorney about your case!
Saffern & Weinberg has offices located in both Center City Philadelphia and Jenkintown, Pennsylvania. Attorney Robert Maizel is a Partner with the Law Offices of Saffren & Weinberg.
Robert Maizel is associated with, and is a Partner with the Law Firm of Saffren & Weinberg. Robert Maizel is not a Law Firm, and rather Robert Maizel is affiliated with the Law Firm of Saffren & Weinberg. All clients shall formulate an agreement with the Law Firm of Saffren & Weinberg, with the option of hiring Robert Maizel as lead counsel on your case to be heard in the State Courts of Pennsylvania, and Marc Weinberg as the lead counsel in cases to be heard in the Federal Courts of Pennsylvania. Mr. Maizel handles all actions in the Administrative Courts of Pennsylvania including the EEOC and PaHRC.
Call Robert Maizel at 215-695-3000 to schedule your free consultation.