What are my rights to paid leave and unemployment during the pandemic?

Note: This article was updated April 22, 2020 to reflect new guidance from Department of Labor editors.

On March 18, Congress passed the Families First Coronavirus Response Act (FFCRA), partly to discourage layoffs and partly to ensure paid leave for workers who must stay home due to the COVID-19 emergency. On March 27, Congress enacted the CARES Act to expand unemployment insurance eligibility and benefits. Both laws expire on December 31, 2020, unless extended.

Here is a selection of questions relating to the new laws. Please note that this is a complicated and rapidly evolving field. Although the US Department of Labor has published several regulations and guides, some aspects of the programs remain unclear.

Additionally, enforcement is likely to be slow and patchy, as an understaffed Federal Wage and Hour Division of the Department of Labor appears unable to effectively oversee the furlough program and state unemployment insurance agencies. claim to be overwhelmed by the flood of requests. Unionized workers should always review their contracts to see if they have stronger protections.

1. Business closure due to COVID-19 emergency

Q Our Governor has ordered the temporary closure of non-essential retail businesses due to the COVID-19 emergency. My employer, a department store, issued over 300 layoff notices. Can I get Unemployment Insurance (UI) benefits even though I only worked there for a week?

A. Yes. The CARES Act provides unemployment insurance benefits to workers who are laid off, temporarily furloughed, or whose hours are reduced due to the COVID-19 emergency, even if they have a sparse wage history. Most states pay around 50% of wages up to a maximum amount that varies widely from country to country. Some add more for dependents.

The CARES Act adds $600 to weekly Unemployment Insurance benefits between March 27 and July 31, 2020, even though it increases benefit checks above a claimant’s regular salary. Unemployment insurance payments are taxable.

2. Quit due to COVID-19 security concerns

Q I work in a supermarket in close contact with customers and colleagues. Social distancing is impossible. Management did not respond to our complaints about the lack of adequate protective equipment. Two workers have contracted COVID-19 and I have a history of COPD. If I resign because of the virus risk, will I be able to claim unemployment insurance?

A. May be. The CARES Act grants unemployment insurance eligibility to an employee “who must leave employment as a direct result of COVID-19.” Although the law does not specify, the right would appear to apply to an employee with a serious underlying medical condition who stops working due to a reasonable fear of death or serious injury from the virus, especially if advised by a medical professional. A state UI official will ultimately decide.

Point: Put your resignation in writing, making sure to explain your concerns.

3. Paid sick leave during self-quarantine

Q My doctor told me to self-quarantine for two weeks due to symptoms of COVID-19. Does my employer have to give me paid leave for the absence?

A. Yes, unless you are a health care provider or emergency responder or work for an employer with 500 or more employees (see questions 5 and 6 below).

Under the FFCRA, a full-time worker who must be quarantined due to COVID-19, or who exhibits symptoms of the virus and seeks a diagnosis, is entitled to up to 80 hours of paid sick leave at a rate of up to $511 per person. day over a two-week period. Part-time workers are entitled to pro-rata remuneration. The employer is reimbursed dollar for dollar through federal government tax credits.

You may not be required to use other accrued benefits, such as paid vacation or sick leave, in lieu of FFCRA leave. Nor can you be forced to make up for lost time.

Your employer must continue to pay for group health coverage while you are on leave. If your workplace has 25 or more employees, you must be reinstated in your regular job or an equivalent position (unless a layoff affecting you has occurred).

Your employer can refuse paid leave if 1) you decline an offer to telecommute, or 2) there is no work available. In the latter case, you would be eligible for unemployment insurance benefits.

After two weeks, if you continue to quarantine or still have symptoms of COVID-19 (but are not critically ill), you can apply for benefits from your state unemployment insurance agency.

To note: You are also entitled to paid leave to care for a family member or other person with whom you have a relationship who is under a quarantine order or is advised by a medical practitioner. self-quarantine. Your rate will be two-thirds of your regular salary up to a maximum of $1,000 per week.

To note: Workers requesting paid sick leave under the FFCRA should notify their employer as soon as possible after the first day missed, providing the name of the health care provider who issued the stay-at-home notice.

4. Paid parental leave

Q My ten year old’s school has closed due to the COVID-19 crisis and I have to be home to take care of her. Should my boss give me paid vacation?

A. Yes. You are covered by the FFCRA if you have worked 30 days or more for your employer and you are not one of the exempt categories of the law (see questions 5 and 6 below). Eligible employees are entitled to 12 weeks of protected paid time off if a child’s school or daycare closes due to the COVID-19 crisis and no other parent or regular childcare provider is available.

The rate of pay for workers taking parental leave under the FFCRA is two-thirds of regular pay to a maximum of $200 per day. You can top up your check up to your regular earnings with other available paid time off such as sick pay or vacation pay. Leave can be taken intermittently, up to a total of 12 weeks, if your employer agrees. Your employer cannot take adverse action against you because of your leave request.

Your weeks without work will be deducted from your annual entitlement of 12 weeks to family and medical leave (FMLA). If your employer violates your leave rights, you can file a complaint with the U.S. Department of Labor’s Division of Wages and Hours.

A worker whose application for parental leave is refused may apply for unemployment insurance benefits. Unemployment insurance benefits may also be available if you need more than 12 weeks of leave. You cannot collect Unemployment Insurance benefits for the weeks in which you receive paid leave.

5. Employers can deny leave requests from health care providers

Q I am a hospital nurse. My child’s regular caregiver cannot come to my home because of the COVID-19 virus. Am I entitled to paid vacation?

A. It’s a sensitive point. To ensure the availability of medical personnel, the FFCRA allows covered employers, public and private, large and small, to deny COVID-related sick and caregiver leave to individuals who serve as “healthcare providers.” A similar federal law (the FMLA) limits this term to physicians and other professionals qualified to make a medical diagnosis. According to the Department of Labor, however, for the purposes of FFCRA leave, the term includes anyone employed by a hospital, clinic, nursing home, pharmacy, manufacturer of medical products, or other similar institution. Therefore, your hospital may deny your request.

To note: A hospital employee whose request for COVID-related compassionate care leave is denied can stop working and apply for unemployment insurance benefits under the CARES Act. The possible downside is that the employee may lose rights to paid health insurance and re-employment.

6. Large employers can refuse leave

Q We work for General Motors. Are you entitled to sick and caregiver leave under the FFCRA?

A. Surprisingly, no. Congress excluded private employers with 500 or more employees (in all facilities) from the FFCRA, supposedly to prevent those employers from claiming the law’s tax credits.

7. Public employees

Q Are government employees entitled to paid sick and childcare leave under the FFCRA?

A. Yes. The FFCRA applies to all state and local government agencies and many, but not all, federal agencies.

8. Small Employers and Paid Vacations

Q I work for a private social services agency with 12 employees. Does the agency have to approve FFCRA leave?

A. Yes, with one exception. An employer with less than 50 employees can deny parental leave related to COVID-19 if the employee’s absence prevents them from working at their minimum capacity or results in an overspending of their revenues.

9. Workplace closes during caregiver leave

Q I am on full 12 week FFCRA leave to take care of my children. If my company closes its workplace while I’m away, can it stop paying me?

A. Yes. Payment for COVID-related leave may be discontinued if the employer closes or has no work available. You can then apply for unemployment insurance benefits.

10. Independent Contractors and Unemployment Insurance Benefits

Q I drive for Uber. Due to COVID-19, rides have dried up across the city. Due to social distancing and COVID-19 containment guidelines, rides have dried up across the city.

A. Yes. The CARES Act allows self-employed individuals, including independent contractors and “gig” workers, whose incomes have dried up due to the COVID-19 crisis, to apply for full or partial unemployment insurance benefits up to through December 26, 2020. Successful applicants will receive their regular weekly wage rate plus a $600 bonus (bonus ends July 31). Benefits can continue for up to 39 weeks. You will need to document or otherwise certify your lost earnings.

11. Part-time workers and unemployment insurance benefits

Q I was working part-time when my employer went out of business due to the COVID crisis. Do I have to seek full-time employment to receive Unemployment Insurance benefits?

A. No. The CARES Act allows those unemployed due to the COVID crisis to limit their job search to part-time work.

12. Undocumented workers and unemployment insurance benefits

Q Can undocumented immigrants apply for unemployment insurance benefits due to the COVID-19 public health emergency?

A. No. Although undocumented workers are deemed essential in some industries, they are still excluded from unemployment insurance programs.

Robert M. Schwartz, a retired labor attorney, is the author of several Labor Notes books, including The Legal Rights of Union Stewards, The FMLA Handbook, and Just Cause: A Union Guide to Winning Discipline Cases. Ordering information can be found at labornotes.org for the reopening of our online store.

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