What To Do If You Are An Employee Impacted by COVID-19?
By Jonathan R. Ksiazek
COVID-19, otherwise known as the Coronavirus, has impacted every American employee and will continue to do so for the upcoming weeks and months. In such an unprecedented time, it is important for employees to know what their rights are in the event that they are laid-off, furloughed, have to stay home to take care of their children or a loved one, or become sick themselves. This article explains what steps employees can take and the proposed relief that may be available to them.
Because legislation is still pending and the situation is fluid, this article is based on the best resources available as of March 18, 2020.
If You Are Laid-Off or Need to Leave Work due to COVID-19
In the unfortunate event that you are laid-off or furloughed due to the economic impact of COVID-19, you will be entitled to file for unemployment benefits through the Illinois Department of Employment Security (“IDES”). The IDES recently adopted emergency rules to make the unemployment insurance system as responsive to the current situation as possible.
Typically, unemployment insurance (“UI”) provides temporary maintenance to employees who have been separated from their employment through no fault of their own and meet certain eligibility requirements including registering with the IDES employment service and actively seeking work. A non-salaried employee that is furloughed because of lack of work, or had their hours substantially reduced, may also be eligible to receive UI.
The IDES has changed some of their eligibility requirements for UI in relation to employees whose workplace is impacted by COVID-19. Based on the IDES’ new emergency rules, any employee temporarily laid off or furloughed due to COVID-19 does not have to register with the IDES’ employment service or actively seek work in order to qualify for UI benefits. The IDES will consider an employee to have met this requirement as long as they are prepared to return to their job when the workplace re-opens.
If an employee is confined to their home and cannot work due to COVID-19 because they are sick, have to care for a loved one, or are under a government-ordered or recommended quarantine, that employee likely will be considered to have been separated from their employment due to no fault of their own. Thus, any employee in this situation should apply for unemployment benefits so long as they meet the other eligibility requirements such as being able and available to work and are actively seeking work from the confines of their home.
It is important to note that any employee who leaves their job voluntarily without a good reason attributable to the employer is generally disqualified from receiving UI. Thus, an employee has a duty to make a reasonable effort to work with his or her employer to resolve any issues that would cause the employee to consider leaving their position.
An employee who is sick, or whose family members are sick may be entitled to leave under the Family Medical Leave Act (“FMLA”) under certain circumstances. The FMLA entitles eligible employees of covered employers to take up to 12 weeks of unpaid, job-protected leave in a designated 12-month leave year for specified family and medical reasons. This may include the flu where complications arise that create a “serious health condition” as defined by the FMLA.
Employees on FMLA leave are entitled to the continuation of group health insurance coverage under the same conditions as coverage that would have been provided if the employee had been continuously employed during the leave period. An employee who takes leave for the purpose of merely avoiding COVID-19 would not be protected under the FMLA.
The Families First Coronavirus Response Act
On March 16, 2020, the U.S. House of Representatives passed its the Families First Coronavirus Response Act (“FFCRA”). On March 18, 2020 the Senate passed, and the President signed, the FFCRA into law.
The FFCRA contains two main centerpieces: (1) emergency paid sick leave; and (2) a new paid Family and Medical Leave to deal with the COVID-19 “public health emergency.” The FFCRA provides the following relief to impacted employees:
- An employee who works for a company that has fewer than 500 employees and a) must go into isolation or quarantine in accordance with a federal, state or local order; 2) quarantine based on direction from a health care provider; or, 3) who is experiencing symptoms associated with COVID-19 or is caring for an individual with symptoms associated with COVID-19; or 4) who must stay home to provide care to a child due to the closure of a school or daycare due to COVID-19 and cannot work or telework is entitled to up to two weeks of paid sick leave equal to the number of hours they work, on average, over a two week period.
- The amount of paid sick leave is capped at $511 per day, or $5,110 in aggregate for individuals who have to quarantine or have a suspected case of COVID-19 and at $200 per day, or $2,000 in aggregate, for employees who have to stay home to care for someone who is suspected of having COVID-19 or to provide care to their children due to the closure of a school or daycare.
- Makes paid FMLA available to an employee who has worked for their employer for at least 30 days and has to take time off due to COVID-19 to care for a minor child because of a school closure or childcare-provider loss.
- The initial period of protected leave is 10 days of unpaid leave; however, employees can choose to use vacation, sick or personal time off.
- Employees who are out due to childcare-related leave and cannot work from home are entitled to 10 additional weeks of paid leave at two-thirds salary.
- The FFCRA defines the “inability to work” due to a childcare-related leave to include an inability to telework. Thus, any employee who can work from home despite having childcare loss would not entitled to pay for the additional 10 weeks FMLA.
- Caps the amount of paid FMLA at $200 per day or $10,000 in aggregate.
The COVID-19 situation continues to rapidly change, and further legislation may be proposed to address it. Employees and employers need information in real time, so we are continuing to closely monitor the situation and will provide moment-to-moment updates as they become available.