Employment Law Questions Related to Corona Virus – COVID-19

Thank you for contacting Sterling Attorneys at Law, PC with your questions.

The ways in which various States and the Federal government are responding to the Coronavirus/COVID-19 pandemic, create new, and often confusing questions. Please know that we are not in any position to tell you how to protect yourself or your family, what to believe, how to act, or, for example, whether you should wear a mask while driving. We leave those matters to your common sense and beliefs. However, what is legally required, and the implications therefrom, from an employment law perspective, are areas we can help.

Please know, this information sheet is not intended as legal advice; nor is this response intended to create an attorney/client relationship. We are simply trying to keep you updated on recent changes as they affect you from an employment perspective. If your question warrants a specific legal response, our staff will do an intake, and one of our attorneys will follow up if there is anything specific we can do to help.

The following issues seem to be of most concern at this time:

1. Essential workers.

As we see the gradual re-opening of economies, now more than ever are people concerned if they are required to return to work. If you have a question as to whether or not you are an "essential" worker, required to report to work during the continuing Governor's emergency orders, the answer has been defined by the Governor's Office. Governor Whitmer's office is updating "Frequently Asked Questions" on a regular basis. Click https://www.michigan.gov/coronavirus/0,9753,7-406-98810---,00.html for some answers to frequently asked questions regarding the Governor's Orders.

If your employer requires you to report as an "essential" worker, and you still have questions whether your employer is providing the necessary personal protective equipment (PPE) or following recommended precautions, you can ask your employer to clarify that designation. Click https://www.michigan.gov/ag/0,4534,7-359-98784_98791_99174-524770--,00.html for some pointers given by Michigan's Attorney General's Office.

If you believe returning to work impacts your occupational health, or the health, safety and welfare of those you work with, you can also consult Michigan's Occupational Health and Safety Administration (MIOSHA), including making a complaint for working in hazardous conditions. Click https://www.michigan.gov/leo/0,5863,7-336-78421_11407_15349---,00.html for MIOSHA's website.

If you have a pre-existing condition or compromised immune system but your employer is requiring you to work, you should consult with your primary care physician. Your employer may require you to provide medical documentation if you are claiming you cannot return to work due to a health issue, including but not necessarily limited to a positive COVID-19 test. You should follow up with your doctor and provide periodic updates to your employer. This is particularly true if you are on leave under the Family Medical Leave Act (FMLA) or the emergency provisions of the Families First Coronavirus Response Act (FFCRA).

If your documented health issues still preclude you from physically reporting to work, you may be able to request an accommodation, such as being allowed to work from home. If your employer denies you that accommodation, and the accommodation is a reasonable one, you may have a viable claim for which you can file a complaint with MIOSHA (see previous link) or the Michigan Attorney General. Click https://www.michigan.gov/ag/0,4534,7-359-98784_98791_99174-524770--,00.html for helpful information.

2. FFCRA

On April 1, 2020 the Families First Coronavirus Response Act became effective, meaning if you or your family experiences a COVID-19 related health issue, the FFCRA requires certain employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. These provisions will apply from through December 31, 2020. Generally, the FFCRA provides that covered employees are eligible for:

  • Two weeks (up to 80 hours) of paid sick leave at the employee's regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis(*); or

    *This is "up to 80 hours." An employer does not need to pay a covered employee a full 80 hours if the employee did not regularly work 80 hours ins a regular two-week period. Put another way, the employer only has to pay up to what the employee would have regularly earned in a two-week period.
  • Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee's regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or to care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor(**); and

    (**This is an alternative to the first situation. If an employee is COVID-19 compromised, the first paid sick leave requirement applies; if the employee is caring for a dependent who is COVID-19 compromised, or a minor child whose school or daycare is closed due to an ordered closing, and the employee is the sole provider (which is what "bona fide" means), then this two week provision applies. These are not cumulative; if an employer is already paying the maximum up to 80 hours for the two weeks sick leave, the employer has met the obligations of the FFCRA for the firsts two provisions.)
  • Up to an additional 10 weeks of paid expanded family and medical leave at two-thirds the employee's regular rate of pay where an employee, who has been employed for at least 30 calendar days, is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19(***).

    (***This provision applies if there is a bona fide need for leave to care for a child whose school is closed, and the employee cannot work in another capacity. For example, an employee who cannot perform necessary job functions from home equivalent to at least 2/3 of regular time worked. If the employee's can provide as much as 27 hours per week from stay at home work, and has a bona fide need (which requires evidentiary support), the employer does not need to provide the up to 10 additional weeks at 2/3 her rate.)

To summarize, all covered employees are eligible for two weeks of paid sick time for specified reasons related to COVID-19. Bona fide employees employed for at least 30 days are eligible for up to an additional 10 weeks of paid family leave to care for a child under certain circumstances related to COVID-19.

The FFCRA is silent as to whether medical proof or documentation is necessary to demonstrate if an employee is a "covered" employee, or a "bona fide" employee. At the onset of the pandemic, employers were relaxing proof requirements. However, as time as passed, more employers are requiring medical or other documentation to support leave or accommodation requests. Therefore, it is advisable for any employee to be able to support a medical need with verifiable medical support. It is advisable for a bona fide employee to be able to provide support that (a) a child or incapacitated dependent is home from school, daycare, or facility due to an emergency order, (b) nobody else in the household besides the employee can care for that child or dependent, and (c) work from home is not possible. If work from home is possible, an employer may require the covered or bona fide employee to work from home before the employer is required to pay up to the 10 weeks of emergency family leave.

If you believe you qualify for the extended leave under FFCRA, here are the Department of Labor's qualifying reasons for leave:

Under the FFCRA, an employee qualifies for paid sick time if the employee is unable to work (or unable to telework) due to a need for leave because the employee:

  1. is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  2. has been advised by a health care provider to self-quarantine related to COVID-19;
  3. is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
  4. is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
  5. is caring for a child whose school or place of care is closed for reasons related to COVID-19; or
  6. is experiencing any other substantially-similar condition specified by Health and Human Services.

Duration of Leave:

For reasons (1)-(4) and (6): A full-time employee is eligible for 80 hours of leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period.

For reason (5): A full-time employee is eligible for 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, and a part-time employee is eligible for leave for the number of hours that the employee is normally scheduled to work over that period.

Calculation of Pay:

For leave reasons (1), (2), or (3): 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).

For leave reasons (4) or (6): 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).

For leave reason (5): 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).

*The items in italics come directly from the U.S. Department of Labor.

3. Protective Equipment and/or the Order to Return to Work

Similarly, if you are required to work without proper personal protection equipment, or you are ordered to return to a potentially unsafe work environment, this may also be a violation of MIOSHA and other laws, and you can file a complaint with MIOSHA or the Michigan Attorney General.

Generally, an employee who is fired, demoted, or disciplined for making a complaint to MIOSHA or the Michigan Attorney General regarding unsafe or hazardous working conditions may have legal recourse for the negative action under laws prohibiting retaliation, including Michigan's Whistleblower Protection Act.

From an employment law perspective, we do not recommend that you refuse to report to work, nor should you quit your job; of course, though, you need to do what is best for you and your family's health and welfare. If there are specific health concerns with reporting (i.e. you feel you have been exposed to COVID-19), you should also contact your primary care physician for medical advice.

4. Unemployment Compensation Questions

Over the past several weeks you have likely heard horror stories about delays in receiving Michigan unemployment benefits while laid off or furloughed for COVID-19 reasons. We have seen some significant changes to Michigan's UIA system, its processing of claims, and ultimately paying those claims. However, there are still delays being experienced.

We do not recommend that you call the Michigan unemployment system to check on your benefits. With unemployment exceeding 20% in the State, the system is slowed down; however, we are reasonably informed the system is working. If you call, you will likely end up being on hold for extended periods, only to have to leave a voice mail message. That will cause you to become very frustrated. More significantly, phone calls and listening to voice mails causes the State to expend worker's resources that could otherwise be used in processing unemployment claims. Simply put, if you filed your claim online, the system should process your claim.

We do recommend that you periodically go online to check the status of your claim. Often UIA will send you updates and requests for information through your online account. You should follow whatever instructions UIA gives you so as not to further delay your claim.

Most importantly, notices regarding determinations and eligibility will also be mailed to you. You should review anything you receive by mail from the State of Michigan very carefully. If any adverse action has occurred regarding your claim, there are strict time requirements within which to respond or appeal. These time limits are "use them or lose them" deadlines. Therefore, you should act within the time frames given to you.

If you believe your unemployment claim has been denied in error, or there are other issues that an unemployment attorney can assist you with, please contact us directly. We regularly work with specialists in this area of the law and can help connect you to the right person to assist you.

We hope you have found the above information to be helpful. If your issue is more fact specific, or you still have additional questions, please feel free to contact us again and we will review your issue in more detail, and do our best to further help you navigate these difficult waters.

We wish you the best. We hope you stay safe and healthy. And most of all, we thank you for considering Sterling Attorneys at Law, PC to handle your legal needs.