1. My workplace closed or I was part of a mass layoff because of COVID-19; will I still get paid?
Under the federal Worker Adjustment and Retraining Notification (WARN) Act, employers that have more than 100 full-time employees are generally required to provide a 60-day notice of the business closure or temporary shutdown. If you do not receive the 60-day notice, you may be entitled to 60 days of backpay.
The WARN Act can also apply to “mass layoffs” A mass layoff means a reduction in force that is not the result of a plant closing and that results in an employment loss at a single site of employment during any 30-day period for (a) at least 33% of the employees and at least 50 employees (excluding part-time employees) or (b) at least 500 employees, excluding part-time employees.
But there is a potential loophole for employers called the “unforeseeable business circumstances” exception which (if it applies) would only require as much advanced notice as practicable. We are not aware of any cases addressing whether a pandemic would qualify for this exception and expect this issue will be hashed out in various courts in the months to come.
A comprehensive summary of your rights under the WARN Act may be found here. A National Law Journal article addressing the applicability of the WARN Act to COVID-19 closures and mass layoffs is here.
You may also be eligible for unemployment compensation if you were terminated due to no fault of your own. North Carolina recently expanded its unemployment compensation protections in response to COVID-19, a full overview of those expansions may be found here.
2. Do I still get paid if my employer requires me to work from home?
Yes. The North Carolina Wage and Hour Act (NCWHA) and the federal Fair Labor Standards Act (FLSA) govern wage payment. If you are a non-exempt “hourly” employee, you are required to be paid for all hours worked, including for your overtime hours. Similarly, if you are an exempt “salaried” employee, you are required to be paid your full salary for each day you perform work for your employer, even if it is just a half day, because exempt employees’ salaries have to be guaranteed. These wage payment requirements continue to apply even if you work from home. [Note: for more detailed information about misclassification as exempt or non-exempt, please click here.].
3. If I’m required to work from home, does my employer have to cover the cost of setting up my home office?
Maybe, it depends on your rate of pay and what your employer’s policy says. Under the NCWHA, your employer is required to pay you all wages promised. These promises can be found in your employer’s policy, in an agreement with you, or established by your employer’s regular practice. If your employer promised to reimburse you for home office expenses, that promise is likely legally enforceable.
Similarly, under the federal FLSA, if your home office expenses causes your gross weekly pay to drop below the minimum wage (currently, $7.25/hour), you might have a viable claim if your employer does not reimburse you.
4. May my employer makes me leave work because they think I have COVID-19?
Probably. The answer will vary based on whether you are symptomatic or asymptomatic.
Based on the EEOC’s 2009 H1N1 flu pandemic guidance, requiring a symptomatic employee to go home is not a disability-related action under the Americans with Disabilities Act (ADA) if the illness is akin to seasonal influenza. Additionally, under the ADA, your employer may require you to leave work if your illness is serious enough to pose a direct threat to the workplace. [Note: the term “direct threat” may not be based on subjective perceptions or irrational fears.].
Additionally, guidance from the Center for Disease Control (CDC) provides that even if you are asymptomatic (not exhibiting symptoms), your employer may still require you to leave work if you (i) have close contact with, (ii) sat within six feet on an aircraft within of, (iii) or live in the same household as, are an intimate partner of, or are caring for at home for a symptomatic individual with a confirmed case of COVID-19. Requiring you, as an asymptomatic employee, to leave work most likely does not violate the ADA’s “regarded as” clause because the ADA does not cover conditions that are “transitory and minor.”
5. May my employer require I get tested for COVID-19?
Probably not. Generally, your employer is prohibited by the ADA from making medical inquiries of you, and requiring you to subject yourself to a medical test or to report your test results back to your employer would certainly fall within the definition of “medical inquiry.” However, if your symptoms rise to the level of posing a “direct threat” to the workplace, the ADA’s prohibition against medical inquiries would no longer apply.
It is fair game for your employer to ask questions such as whether you’re experiencing symptoms, have traveled to hotspots in the pandemic (like China and Italy) or are caring for someone who has COVID-19.
6. May my employer require I give them a doctor’s note before I go back to work?
Sometimes employers have policies that require you to provide a doctor’s note to return to work after being sick—especially if you used paid sick leave. These policies are lawful, although the CDC has encouraged employers not to require doctor’s notes at this time due to the high volume of patients at medical facilities. It is important to remember that if you used Family Medical Leave Act (FMLA) leave for your absence, then your employer has a legal right to request a fitness-for-duty note from your doctor before you return to work.
7. May I stay home from work without risking termination, if I am just generally concerned about contracting COVID-19?
It depends. Employers in North Carolina are covered by both the federal Occupational Safety and Health Act (OSHA) and the Occupational Safety and Health Act of North Carolina (NC OSH). Under these laws, you have a legally protected right to refuse work in limited circumstances that meet all of the following requirements:
- You have asked your employer to eliminate a danger, and the employer failed to do so;
- You refused to work in “good faith.” because you genuinely believe that an imminent danger exists;
- A reasonable person would agree that there is a real danger of death or serious injury;
- There is not enough time, due to the urgency of the hazard, for the hazard to be corrected through regular enforcement channels, such as requesting an OSHA inspection.
As you can imagine, it will be pretty difficult to satisfy all four of these requirements at most workplaces. Without satisfying these four requirements, the question of whether you can refuse to go to work due to COVID-19 concerns falls squarely within the grey area of the law. The current pandemic is unprecedented, and the laws simply have not caught up.
At some point in the future, the state or local government may issue an executive order or other law that requires strict compliance with individual quarantines or that closes down certain businesses (for example, Executive Order No. 118, issued on March 17, 2020, limited the sale of food and beverages from restaurants and bars to carry-out, drive-through, and delivery only). In the event that the government mandates closure of your workplace, you would be legally permitted to refrain from reporting to work. To stay up to date on North Carolina’s official response to COVID-19, please click here.
8. May my employer require me to work if I feel sick?
It depends. With regard to influenza, CDC guidance indicates that employees who exhibit symptoms of acute respiratory illness should not report to work in general business settings until at least 24 hours after they have recovered from a fever (“fever” is defined as 100.4° F or greater) and all other symptoms. Such recovery should be without the aid of fever-reducing or other symptom-altering medicines (e.g. cough suppressants). Keep in mind that CDC guidance is not law and will not legally protect you if you disregard your employer’s directive to report to work, even if you are sick.
However, you are provided legal protections for certain medical leaves of absence under the FMLA and the Families First Coronavirus Response Act (FFCRA). Click here to learn more about your rights under the FMLA. Congress passed the FFCRA earlier this week and President Trump signed it into law on March 18, 2020. The FFCRA will take effect on April 2, 2020. We are working to rapidly digest and analyze this new law and will update our resources in the immediate future.
9. Does my employer have to provide me with personal protective equipment?
It depends. OSHA and NC OSH require employers to provide a safe workplace that is from recognized hazards that are causing or likely to cause death or serious physical harm. The answer to this questions will largely depend on the industry you work in. For example, if you work in healthcare and are regularly in contact with patients, your employer will almost certainly provide you personal protective equipment (PPE). However, if you work in an office setting or do not have regular contact with the general public, then your employer likely has no obligation to provide you with PPE, but may be required to provide hand sanitizer, ample soap, disinfectant and perhaps more frequent cleanings of your office space.
10. I’m concerned about the health and safety of my coworkers, am I protected if I speak out?
The National Labor Relations Act provides protections for employees who engage in “protected concerted activity.” Such protected activity occurs when two or more employees (you and at least one additional employee) take action for mutual aid or protection regarding terms and conditions of employment. You may also engaged in protected activity on your own if you, among other things, are acting on the authority of a group of employees or bringing a group complaint to your employer’s attention.
Expressing safety concerns, such as concerns about COVID-19 in the workplace, would fall within the definition of protected concerted activity as long as you raise the issues on behalf of a group. If you are discriminated or retaliated against for raising a group safety concern, you may have a claim under the NLRA.
11. What else should I know?
Navigating the laws covering your workplace can be stressful and confusing at times. At Van Kampen Law, we understand the current COVID-19 pandemic has caused additional uncertainty about sustainable employment. If you have additional questions about your employment situation, please contact us at (704) 247-3245 or complete our intake form here. Our team is here to help.