Covid-19 Podcasts

Intro: 00:01 Human resources, employee relations, the legal department are aligned against you. Your employer has trained for this day, the day you’ve become an expendable number at work. There are robust laws that may protect you. But unlike the company, you’ve not been drilled on how to wield them. You’re playing catch-up. There are pitfalls to avoid and counter measures to deploy that may save your job or puts you in the best position to negotiate a favorable settlement. Minutes matter. Your words and actions matter even more. The Walking Papers podcast offers the first foray into learning how to turn the tables when you’ve been targeted at work. Knowledge is power. Let’s get started.

Robert Ingalls: 00:46 What happens if you contract coronavirus at work? Many employees working jobs deemed essential are understandably worried about contracting the coronavirus, and how that will affect not only their health but their finances and their families. Today, I am here with North Carolina employment lawyer, Josh van Kampen, to discuss these issues and more. Welcome back, Josh.

Josh Van Kampen: 01:09 Good to be here.

Robert Ingalls: 01:10 Right. Now, the title of this episode is Quid pro quo Clarice – Will workers’ compensation, insurance carriers or short-term and long-term disability insurers have your back if you contract COVID-19?

Josh Van Kampen: 01:24 So I don’t know what your favorite movie was in law school or an undergrad, but The Silence of the Lambs was one that I probably watched, I don’t know, maybe 20, 30 times. And so, does everybody remember the scene where Clarice is meeting Hannibal Lecter, and he says, “Clarice, come closer, Clarice. Clarice, I need to see your identification. Come closer.” And then later on in that scene, he talks about a quid pro quo where he’ll give her information if she shares some personal information about herself. Well, in the workplace, there are quid pro quos’ that have happened with respect to certain benefits that employees are supposed to have access to.

Josh Van Kampen: 02:13 And we’re going to be talking about basically two categories of those benefits that are applicable potentially in the COVID-19 pandemic. One is a workers’ compensation benefit. So in North Carolina and probably in virtually all states in the country, employers are required to carry what’s called workers’ compensation insurance. And so, if an employee is injured at work or suffers a workplace injury, they’re literally an insurance company. You’ve seen these Aflac commercials, which are for short-term, long-term disability. That’s the second category, but there are also insurance companies that provide coverage when employees are injured or contract a disease at work.

Josh Van Kampen: 02:58 So, that’s one category we’re going to be talking about, are workers’ compensation benefits. And then the second are essentially the Aflacs’ of the world, and I should probably get a royalty for calling them out as opposed to some of their competitors. But Aflac and other companies like it, they sell to employers or to individual employees disability policies, so that if for whatever reason you are unable to report to work, there are disability policies that you may be entitled to recover some of your lost wages from. And so that’s the second category of potential benefits that listeners may be able to take advantage of with COVID-19 under these short-term and long-term disability policies. But first step essentially is workers’ compensation benefits.

Robert Ingalls: 03:52 So most people are not intimately familiar with workers’ compensation laws, and how they work, and the ins and the outs. Can you give us a brief overview?

Josh Van Kampen: 04:01 Sure. So, a normal scenario where workers’ compensation benefits would come in, would be… I like to talk about supermarkets. So let’s say a cashier was injured while walking around the supermarket to show a customer where a particular product was. They fell and they broke their leg. They would have broke their leg at work in the course of performing their duties and would be entitled to what are called workers’ compensation benefits as a result of that injury. So what does that entail? First, any medical bills that are associated with a workplace injury are covered by a workers’ compensation carrier. So you don’t have to do it on your private insurance. Second, that cashier, maybe, she’s laid up for a month recovering from her broken leg, well obviously, she’s going to be suffering a loss of income during that recovery period.

Josh Van Kampen: 05:03 Well, under the workers’ compensation laws, the insurance carrier would be required to supplement, depends by a state, but in general, supplement two thirds of her lost pay while she’s recuperating from an injury. Those workers’ compensation laws also… God forbid. Let’s say that the injury ended up having some sort of permanent restriction on that employee’s leg. Let’s say that a doctor said that she was now restricted to 90% usage of her leg or it was 10% disabled, there are formulas, at least under the North Carolina workers’ compensation law that can ascribe a value to that work injury, separate it apart from her loss of income.

Josh Van Kampen: 05:48 And then the workers’ compensation laws are good too. Because let’s say she’s only able to come back on light duty or a restricted duty or fewer hours in the week, the workers’ compensation law requires employers to work with… In other words, ease that employee back into their position. So that’s nice. And then in North Carolina, there are really robust protections for people that file workers’ compensation claims. And so you’re not allowed to be retaliated against for doing that, for example. And if we prove that somebody was retaliated against for filing a workers’ compensation claim, then we can recover, literally, tripled damages on their lost pay benefits. So it’s got a nice whistleblower protection component to it.

Robert Ingalls: 06:34 So let’s say I have a workers’ compensation claim I want to make, how do I go about starting that process

Josh Van Kampen: 06:40 Well, in gen, there are a couple of different ways to do it. But the first way to do it, you start by notifying your employer that you suffered a workplace injury. And you want to do that as soon as possible, and certainly, within 30 days if you want to avoid having problems. That should prompt the employer, if they’re sophisticated, to give you what’s called a Form 18, which is basically like an injury report or incident report to document the injury. At that point, the employer is supposed to notify its workers’ compensation carrier that you’ve been injured at work, and then the insurance carrier does due diligence.

Josh Van Kampen: 07:24 And you get sent to a doctor, and they’re determining whether or not the injury that you’re claiming was work-related or not. Because workers’ compensation insurance covers work injuries not non-work injuries. You know how insurance companies are. Sometimes, they try to weasel out of protections. And so for our listeners, if you’re claiming a workers’ compensation injury, they’re going to try to tease you or tricky you into saying something about how it was a preexisting condition, maybe you hurt yourself playing basketball when you were in college, whatever.

Josh Van Kampen: 07:59 Don’t go there. Don’t be fooled. It only applies to workplace injuries. And then if there’s a denial, there’s, at least in North Carolina, an agency called the North Carolina Industrial Commission where you can appeal a denial of workers’ compensation benefits. And at that point, if you get a denial, you should hire a workers’ compensation attorney. And there are a bunch of good ones in Charlotte. I’m not a workers’ compensation lawyer, but if you call my office, we can certainly point you in the right direction.

Robert Ingalls: 08:31 So that takes us to the big question that I have. Can someone get workers’ compensation benefits for contracting COVID-19?

Josh Van Kampen: 08:41 Well, once again, we got a law that’s on the books that didn’t envision a pandemic. And so here, we’ll have listeners nationally, we’ll have listeners in North Carolina, understand, if you’re not in North Carolina and you’re listening to this, you have to take whatever I say with a huge grain of salt because each state has its own workers’ compensation law. And a lot of times, they’re pretty similar. But all I’m going to be speaking to essentially is the North Carolina workers’ compensation law. So the North Carolina Workers’ Compensation Act does not address whether or not someone contracting COVID-19 in the workplace, whether or not that is something that you can get workers’ compensation benefits from. So that’s unfortunate.

Josh Van Kampen: 09:24 And so we’re having to, once again, try to fit this foot into a slipper that doesn’t work very well, but let’s try. So there’s a two-part standard under the North Carolina’s Workers’ Compensation Act. One is, we have to show that the employment placed the individual, the listener, at a greater risk for developing the condition than the general public. So again, look at the job. Is the person in that job at a greater risk for developing COVID-19 than other people in the public? Obviously, if you’re a first responder or if you are somebody who works in a doctor’s office, in a hospital, in a medical environment, you are more likely to contract COVID-19 than me or Rob Ingalls, my good friend.

Josh Van Kampen: 10:15 So in that instance, at least with the first part of the test, I would feel pretty good about being able to say that first responders or healthcare workers are more likely or at greater risk of developing the condition. A little bit of a closer call, let’s talk about those cashiers, those Instacart delivery folks that are keeping us safe by delivering groceries or checking out your groceries with the cashiers. To me, they’re also more at risk than the general public. Think about the cashier. I mean, they are… People queue up to them over and over and over again are well within the six feet of separation we’re supposed to have. So I think I would certainly be confident in arguing to the industrial commission that those cashiers or, let’s say, the Instacart people who are doing the shopping for you are more likely to contract COVID-19.

Josh Van Kampen: 11:12 Now, let’s talk about paper pushers like you and me, Rob, are now who are able to work remotely, we certainly can’t say that we’re more likely to contract at COVID-19. And so I think you and I, for example, wouldn’t have a leg to stand on. But cashiers, first responders, healthcare workers, delivery drivers, folks like that I think would. Problem is that’s only the first part of the test. The second part of the test is to show that the employment caused or substantially contributed to the condition. So, in other words, we need to prove that your job… You contracted COVID-19 at work or as a result of your job. And how do you do that? Because with COVID-19, there’s an incubation period of, the estimate I think is, most recently, two days to 14 days.

Josh Van Kampen: 12:06 If that’s the case, how are you able to go to the industrial commission and pinpoint that you contracted COVID-19 in the performance of your job duties, because there’ll be an intervening period in between where you could have gotten it elsewhere. And so, there it becomes really important for our listeners to be able to say that you were following, let’s say, your lock-in-place order per your state. And so, if you weren’t going to work, you were back home, that you abided the six feet distance restriction that’s required. If you can show that your COVID-19 hygiene, if you will, was exemplary, and so that the only interactions that you were having with members of the public was at work, then I think you’re more likely to be able to show that connection, if you are able to show that you were not around people where you might’ve contracted it other than at work.

Josh Van Kampen: 13:07 Now, what makes me concerned for listeners though is, let’s say you minded your Ps and Qs, and you did everything right, and your only exposure to contract COVID-19 was at work at the supermarket, that’s only as good as the other people that you live with. So, if you’re interacting with your little brother who also had a job, and he went on spring break and was a knucklehead, you could have contracted it from your knucklehead little brother, then that’s going to create a problem for trying to apply for workers’ compensation benefits.

Robert Ingalls: 13:46 Yeah, I could see that getting really stressful if there was some litigation there. Just trying to prove who went where and where it came from, I could see that being very difficult.

Josh Van Kampen: 13:54 All right. And one thing we already know about workers’ compensation carriers, they’re being counters. And so if they can find some wiggle room to not have to pay benefits, then you know that they’re going to do that. Now fortunately, not in North Carolina, but it’s been reported that in other States, there have been some amendments to workers’ compensation laws to provide benefits for certain categories of folks. So, according to recent news reports, Washington and Kentucky have amended their workers’ compensation laws to allow for healthcare workers and first responders to be covered by those laws. Period.

Josh Van Kampen: 14:38 And I certainly would urge our listeners in North Carolina to contact the governor’s office, Governor Cooper, and also your senators and your representatives in the state house or general assembly to urge them to amend the workers’ compensation law to apply to healthcare workers and first responders at a minimum. Now, to me, I think we also want to cover our delivery drivers and our cashiers and supermarket workers. They’re really brave, and valuable, and also, they don’t get paid very well. And the notion that they’re going to be out there, left hanging, not eligible for workers’ compensation benefits, is just offensive to me. And so I think we all have to step up. You know Rob, just like you did on the last one, if we could leave a link for folks to follow to contact their state and local representatives, that’d be great.

Robert Ingalls: 15:36 Yeah, absolutely. Yeah. Their job seemed, at this moment, to be very high risk with lower reward?

Josh Van Kampen: 15:43 Yeah. And I started slipping… I just started slipping tips to the cashiers and the baggers. I know they are not supposed to accept it, but I thought just – they remind me of my own kids. A lot of them are 16, 17, 18, 19 years old. And then you got the single moms who are working three jobs, and one of which is being a cashier. They don’t have any choice but to go to work to support their families. So gosh, we got to protect them too.

Robert Ingalls: 16:14 Absolutely. So outside of worker’s compensation, are there any other options to help employees?

Josh Van Kampen: 16:21 Yeah, so there are… Remember, we talked about that second bucket which has to do with disability policies. So some employers, especially the larger employers, they pay to have, what are called, short-term disability policies for their workers. The more generous employers don’t require the employee to contribute to those premiums. Some other employers will require employees to contribute. And then, there are still other employers who won’t pay anything for these short-term disability policies, but some of the listeners may be given an opportunity to pay for that entirely out of their own pocket. But assuming that you’re covered by a short-term disability policy, there’s probably a pretty good chance that you would be eligible for a compensation under that policy if you contract COVID-19.

Josh Van Kampen: 17:16 And what’s nice about these short-term disability policies is most of them pay up to 80% of your pay rate, which is better than some of the federal laws that we were talking about in the last podcast. And they usually cover up to a 90 days at 80% pay, which I think should be sufficient for someone to be diagnosed and recover, get a clean bill of health from a COVID-19 diagnosis. But it’s critical for listeners to obtain copies of their disability policies. So the legal term for them, what you’re asking for, are Summary Plan Descriptions or SPD for short. You’re legally entitled to get a copy of your short-term disability plan, and it’s really in the fine print to determine whether or not you would be covered. But certainly, as a general rule, I would anticipate that folks would be covered for a COVID-19 diagnosis for a short-term disability.

Josh Van Kampen: 18:23 One other nice thing about short-term disability… Remember with workers’ compensation benefits, we were getting caught up on proving that the COVID-19 was contracted at work or work-related. Under short-term disability policies, it is irrelevant how you contracted COVID-19. Your knucklehead little brother, who went to spring break, who was covered by a short-term disability policy would still be entitled to benefits regardless, because there’s not going to be an inquiry about how COVID-19 was contracted.

Robert Ingalls: 18:57 Now, how does long-term disability policies… How do they play into this?

Josh Van Kampen: 19:02 So in general, long-term disability policies dovetail with short-term disability. So if short-term disability covers you for 90 days, usually long-term disability policies will pick up on the 91st day. Sometimes, you have gaps, and so, it may be it picks up on the 120th day versus the 90th day. But most employers that provide short-term disability also provide long-term disability policies. Now, long-term disability policies are not as generous. So as a general rule, they pay only about 60%, whereas short-term disability benefits generally pay out at 80%. That drops down to 60% on long-term disability. And then long-term disability policies are also much more likely to deny you coverage, because you’re having to prove that you are unable to work, and not only that, unable to work for a longer period of time.

Josh Van Kampen: 20:01 So, and I guess the question is, folks with COVID-19, are they likely to be the beneficiaries of long-term disability? And I think most likely not because, jeez, I sure hope that within a 90-day period that you’re fully recovered. But let’s say, God forbid, one of the listeners ended up with some severe damage to their lungs. And so, as a result of that damage, let’s say, they were a welder or something like that, and it wasn’t the COVID-19 but the scarring of the lungs as a result, that can be… I could see where long-term disability benefits might apply in that situation. Or let’s say that the person who contracted COVID-19 already had some chronic condition that was exacerbated by the COVID-19 diagnosis, in that instance, long-term disability benefits might apply.

Josh Van Kampen: 21:02 But in general, for listeners, it’s unlikely that you’ll benefit under a long-term disability policy for COVID-19. One other thought though, in terms of trying to become eligible for receiving long-term disability benefits, let’s say that originally you were diagnosed with COVID-19, you took short-term disability. But during that time you were also diagnosed with a general anxiety disorder, God forbid, you suffered a loss in your family and were battling a depression, it’s possible that those additional diagnoses after your COVID-19 diagnosis could result in you being eligible for long-term disability even though your COVID-19 condition resolved itself.

Robert Ingalls: 21:52 All right. Well, thanks for joining us today, Josh. This was very informative. And for the listener, I think it’s important to remember that we are stating the law as it is on April 1st, 2020. There’s a lot of updates taking place, and we’re going to come back here, and we’re going to keep you updated. But the laws are moving quickly, and some of this information could be stale by the time you hear it. So please never make any legal decisions without speaking to a legal professional first. Take care.

Outro: 22:19 Congratulations for taking an important initial step in turning the tables at work. But this podcast is just an educational resource. It does not constitute legal advice and is no substitute for consulting an employment attorney about your unique situation before making legal decisions. Visit our website for more online resources and videos at ncemploymentattorneys.com, or better yet, call (704) 247-3245 for a free initial intake interview so Van Kampen law can evaluate your case. Until next time, keep your head up and your wits about you.

Intro: 00:00 Human resources, employee relations, the legal department are aligned against you. Your employer has trained for this day, the day you’ve become an expendable number at work. There are robust laws that may protect you, but unlike the company, you’ve not been drilled on how to wield them. You’re playing catch up. There are pitfalls to avoid and countermeasures to deploy that may save your job or puts you in the best position to negotiate a favorable settlement. Minutes matter. Your words and actions matter even more. The Walking Papers podcast offers the first foray into learning how to turn the tables when you’ve been targeted at work. Knowledge is power. Let’s get started.

Robert Ingalls: 00:46 Welcome to the Walking Papers podcast. I’m your host, Robert Ingalls, and today we’re going to be discussing the Families First Coronavirus Response Act. Now a lot has changed in the world in the three weeks since we last discussed Coronavirus on episode seven. Schools are closed, nonessential businesses are closed, companies are laying off employees, and the economic fallout is impacting everyone. Recently passed by Congress, the FFCRA takes effect today and aims to address these issues and more. I’m here with employment attorney, Josh Van Kampen to discuss the good, the bad, and the ugly of the FFCRA. Welcome, Josh.

Josh Van Kampen: 01:28 Ah, thanks. Thanks for doing this.

Robert Ingalls: 01:31 No, absolutely.

Josh Van Kampen: 01:31 [crosstalk 00:01:34.

Robert Ingalls: 01:33 It’s a little different than we usually are. We’re remote today because there’s been a Mecklenburg County and North Carolina also has a stay-at-home for all nonessential businesses, and I don’t think they’ve deemed podcasting essential businesses as far as I’ve heard.

Josh Van Kampen: 01:49 But law offices are apparently.

Robert Ingalls: 01:51 Law offices.

Josh Van Kampen: 01:53 Yeah, and everybody said we lawyers were useless, so that makes me feel pretty good.

Robert Ingalls: 01:58 Hopefully on the other side, you’ll gain some reputation back. So tell me, why are we calling this the good, the bad, and the ugly?

Josh Van Kampen: 02:05 Well, first of all, I’m sitting on my porch this morning and came up with the title and I’m embarrassed to say that I didn’t know the origin of it. So it turns out the good, the bad, and the ugly is actually one of the most iconic, they call them spaghetti westerns that I never saw, but it’s clearly in our culture and also Clint Eastwood’s in it. And in fact, this was a movie in which Clint Eastwood burst onto the scene and into the genre, and he’s somebody I idolized until he talked to an empty chair.

Josh Van Kampen: 02:43 But I put that behind us and we’re still going to use, his movie title as a clip. So why is it the good, the bad and the ugly? Well, it’s because there’s parts of it that are good, there are parts of it that are bad, and there are some ugly parts, too. And it’s important that our listeners know, what good parts of the law may apply to them. Many of our listeners are going to think that they’re covered by this law and probably not be. So we’re going to have everybody to thoroughly understand what rights they might be protected or be able to enjoy under this law and which ones they’re not. And then where the gaps are that need to be addressed moving forward.

Robert Ingalls: 03:24 Perfect, and now we are recording this on April 1st of 2020. So this is going to be information as we understand it today. So, take us through a little bit about what is going on with the Families First Coronavirus Act.

Josh Van Kampen: 03:39 Sure. Well, it got passed in a hurry and a lot of times when laws are passed in a hasty fashion, there can be some problems with it. And the other thing we know about Washington, D.C. is that there are compromises that are made and there are lobbyists that have their hands and tentacles in the drafting of these statutes and as a result, we’ve got some pretty big loopholes in a law that if you read it just as a headline, you would have been doing back flips over, and had been excited to hear about. But the Families First Coronavirus Response Act is actually a massive statute. But as far as employment laws go, there are two acts within that law that are worth discussing.

Josh Van Kampen: 04:26 So, the first is the Emergency Paid Leave Act or EPLA, is what it’s being called now, and really what we should call that is the two weeks paid leave act. So, before anybody gets real excited about how much paid leave you get under the statute, it’s two weeks, nothing to get overly excited about. And then there are restrictions basically, where that law doesn’t apply to a large segment of the workforce. But we’re going to talk about the Emergency Paid Leave Act.

Josh Van Kampen: 04:57 And then the other act within this larger statute is the Family Leave Expansion Act, and so this is an amendment to a law that probably a lot of listeners are familiar with, which is the Family Medical Leave Act. And for the first time under that statute, there’s actually some paid leave that’s provided to some segments of our population. But there’s also huge loopholes with that law as well. So, we’ll get into both of those together today.

Robert Ingalls: 05:28 Now tell me about what is good about these laws.

Josh Van Kampen: 05:32 Sure. Oh, let’s start first with EPLA. So, first of all, so it’s two weeks paid leave. The rate of pay is not minimum wage. The rate of pay is actually whatever your rate of pay is at your employer, subject to some caps. So it’s a cap of $511 per day for most people that are covered by this law and then two thirds your normal pay rate depending on why you’re taking the leave. So first of all, under what circumstances can you take leave under this law? The first is, so most listeners are going to be subject to basically, a state or local impose stay-at-home ordinance. And if that’s the case and you are unable to work because you are subject to that isolation order, you would be entitled to receive paid leave. And that is regardless of whether or not you have a COVID-19 diagnosis or not, just if you’re not in an essential business and you’re required to be at home, then you’re entitled to this two weeks of pay. So that’s the first category.

Josh Van Kampen: 06:41 The second is if you’ve been advised by your medical professional that you have COVID-19, or may, and you’ve been instructed by your medical professional to self-quarantine and you’re unable to work, then you’re entitled to two weeks paid leave for that. And the other is, let’s say you’re experiencing symptoms, but like a lot of folks, you just haven’t been able to get a doctor’s appointment or a test, then you can be entitled to this two weeks leave because as long as you’re actively seeking medical attention at that point. You can also take leave if you’re caring for someone else who has been diagnosed with COVID-19 or is quarantining pursuant to medical advice. So for example, if your son or daughter or spouse or someone like that needed help and you were taking off work, you could get two weeks paid leave for that.

Josh Van Kampen: 07:32 And then finally, a lot of listeners who are parents have kids who are no longer able to physically report to work and so they’re entitled to take two weeks leave for that as well. Now, remember we talked about, there are some instances where you get full pay for the two weeks and then in other instances you only get two thirds pay? You only get two thirds pay if you’re caring for your child at home because the school is closed. In that instance, it’s only two thirds pay or if you’re caring for another person. But in any of the earlier instances that we talked about, you’re entitled to full pay for those two weeks. So that is the good with the Emergency Paid Leave Act.

Josh Van Kampen: 08:18 And then, switching over to the Family Leave Expansion Act. On that one, the good is that you can be entitled to an additional 10 weeks at two thirds of a pay rate for those folks who are at home caring for a child who’s unable to go to school because the school is closed or the daycare is closed. So remember, we talked about this large segment of people that are protected and entitled to two weeks paid leave, well the only segment that continues beyond two weeks and that is eligible to receive two-thirds pay for the next 10 weeks, are the folks who were parents with kids that aren’t able to report to school.

Josh Van Kampen: 09:02 So we just sliced off essentially with the Family Leave Expansion Act, the sick people, and does that make any sense to you or the listeners that the people that actually have been diagnosed or are in the process of being diagnosed would suddenly not need more than two weeks of paid leave, but that was the compromise that was worked out apparently in Washington, D.C.

Robert Ingalls: 09:31 Now we’ve covered the good of these laws. What are we seeing is the bad now?

Josh Van Kampen: 09:37 Yeah. Well, first of all with the Emergency Paid Leave Act, there’s a huge loophole. So, it only covers employers that have 500 or fewer employees. So, I’ve never seen anything like this before where essentially the largest employers in our country are given a free pass and don’t have to provide this two weeks paid leave. But employers with under 500 employees, are required to provide this two weeks paid leave. So, that doesn’t make much sense to me at all but a little sliver of the good for the Emergency Paid Leave Act though is that, let’s say you were only at your new job for one week, but then you end up being unable to report to work for any of the reasons we talked about, you’re still eligible, even though you had just started that job. So that part is good.

Josh Van Kampen: 10:36 But for the listeners who work for large employers, a lot of you guys are going to have, let’s say you work for Bank of America, for example. You probably already get some paid sick leave. You may not get two weeks, but you probably have some paid sick leave in your benefits bank, but let’s say you already used a week of it and so you’re down to only one week of paid leave left. We all know from just learning about COVID-19, these conditions don’t resolve in two weeks and you can’t even get a test in two weeks.

Josh Van Kampen: 11:11 So, you’re going to have people that have paid leave with their employers that would have already used some and have fewer than two weeks. But what really bothers me are, you probably don’t go to the supermarket anymore but I was going to supermarkets a month ago or three weeks ago, and I would see cashiers 18, 19, 20 years old lining up and working. So, if you work for Harris Teeter and Publix, obviously they have more than 500 employees, you’re probably a part-time worker and aren’t entitled to any paid sick time because you’re part-time. But yet you’re left without any protection in terms of being able to get this two weeks paid leave if you’re a part-time worker for a large employer for example, and you’re not eligible. So that really bothers me. I’m sure it bothers your listeners as well.

Josh Van Kampen: 12:06 And then getting back to the Family Leave Emergency Act, even for the people that are covered, so let’s say you’re out of work, you get the two weeks under the Emergency Paid Leave and now you want to get paid for the additional 10 weeks, well guess what? The same issue applies. Depends on how large or small your employer is. So, if you’re working for a company that has more than 500 employees, you’re not able to take that 10 weeks of additional paid leave because your kid is out of school because you would just work for an employer that has too many employees. It’s too big and that doesn’t make any sense to me, and it’s fundamentally unfair. Whereas, let’s say you have a neighborhood supermarket who’s just a mom and pop shop, they’ve got 300 employees, they’re going to have obligations to provide paid leave, but the Harris Teeters and Publix of the world are not. So that’s just fundamentally unfair.

Robert Ingalls: 13:10 All right, now when it comes to that large group of people that are falling between those cracks, what other options do they have?

Josh Van Kampen: 13:16 Well, and that’s where the ugly comes in. There are two laws on the books that are worth discussing, but like we talked in a previous podcast, Rob, these laws were never passed for a pandemic of this kind in mind. So, one is the Family Medical Leave Act. So, that’s not a bad law by any means, but there are restrictions with it. So, Family Medical Leave Act was passed in 1993 under the Clinton administration, well it is not paid leave. So even if you qualify for Family Medical Leave Act after you’ve had your two weeks of paid leave, if you’re covered by the FMLA, those next 10 weeks would be unpaid. So, that’s a problem. The good side, the employer would be obligated to pay your medical benefits while you’re out for those 10 additional weeks. But it’s unpaid leave and obviously, people are going to need that leave to be paid right now it wouldn’t be.

Josh Van Kampen: 14:16 The other bad part of it is, a lot of your listeners are not going to be covered by the Family Medical Leave Act because of some thresholds that are in place. So one is, it only applies to employers with 50 or more employees. So, right off the bat, if you’re working for a small business, you’re unlikely to be covered by the Family Medical Leave Act, and even if you are working for a company with more than 50 employees, you still may not be covered unless you have worked for that company for a year. So you have to have worked for that company for a solid year and you also would have been obligated to have worked at least 1250 hours within that year. So if you do the math on that, that averages to about 25 hours a week on average. So if you were only working for that company for 15 hours a week, even if you worked there for more than a year, you may not be eligible because you don’t work enough hours in the year. So, once again, there’s a huge segment of the population who are not covered by the Family Medical Leave Act and it’s not paid leave, which is a problem.

Josh Van Kampen: 15:27 Then the other law that’s on the books, that’s a really robust law if you’re covered by it, is the Americans with Disabilities Act, but you have to be quote unquote disabled under that law, and the Americans with Disabilities Act generally doesn’t apply to conditions that are temporary. There’s no law on the books addressing whether or not COVID-19 would qualify as a disability, but in general, like influenza, the flu is generally not covered by the Americans with Disabilities Act. So one thing that Congress could do and should do, like tomorrow is amend the Americans with Disabilities Act to add COVID-19 as a disability.

Josh Van Kampen: 16:12 Why would we want to do that? One is, anybody who’s covered by the ADA is entitled to a reasonable accommodation, and a reasonable accommodation can include medical leave more than two weeks long. And so under the ADA, if let’s say you needed to be out a full month with a COVID-19 diagnosis, if you were covered by the ADA, you would be entitled to take that leave and also be entitled to be restored to your position. And right now, most employers are going to be pretty aggressive in the court system to try to argue that the ADA doesn’t apply to them, for folks that have COVID-19. So we could literally, Congress could act, write two sentences, add it to the Americans with Disabilities Law and we could fill this gap and protect a whole lot more folks.

Robert Ingalls: 17:02 Do you think that’s something that Congress might be willing to do, depending on how long this goes on

Josh Van Kampen: 17:06 Yeah, I mean, gosh it just seems like there’s so many fires to put out, and I’m sure there are just only so much bandwidth to deal with problems. But one of the reasons why we do these podcasts is to raise awareness about where the gaps are in enforcement. So for everybody who’s stuck at home with a lot of time on your hands, you could email or call your Senator or representative and urge them to amend the Americans with Disabilities Act to add COVID-19 as a disability or same thing while you’re at it, why not ask your Congressman or Senator to further amend the Family Medical Leave Act to provide the 10 weeks paid leave for folks that have COVID-19 or are recovering from COVID-19.

Robert Ingalls: 17:57 Perfect, and we’ll go ahead and link in the blog and in the show notes a resource for finding out who your Congressman or Senator is if you wanted to contact them.

Josh Van Kampen: 18:06 That’d be great, yeah.

Robert Ingalls: 18:08 All right, Josh, well, I appreciate you taking some time with us today and for the listeners, I think it’s important to remember that we are recording this during the middle of a crisis on April 1, 2020. These laws could be changing quickly in real time, and we’re going to do our best to come back here and keep you updated, but there is a chance that these laws, as we’re stating them today can become stale. So remember, never make any decisions before speaking with an attorney. All right, take care.

Outro: 18:36 Congratulations for taking an important initial step in turning the tables at work. But this podcast is just an educational resource. It does not constitute legal advice and is no substitute for consulting an employment attorney about your unique situation before making legal decisions. Visit our website for more online resources and videos at ncemploymentattorneys.com or better yet, call (704) 247-3245 for a free initial intake interview, so Van Kampen Law can evaluate your case. Until next time, keep your head up and your wits about you.

Intro: 00:01 Human resources, employee relations, the legal department are aligned against you. Your employer has trained for this day, the day you’ve become an expendable number at work. There are robust laws that may protect you, but unlike the company, you’ve not been drilled on how to wield them. You’re playing catch up. There are pitfalls to avoid and countermeasures to deploy that may save your job or put you in the best position to negotiate a favorable settlement. Minutes matter. Your words and actions matter even more. The Walking Papers podcast offers the first foray into learning how to turn the tables when you’ve been targeted at work. Knowledge is power, let’s get started.

Robert Ingalls: 00:45 The Coronavirus, COVID-19. It seems to be all that anyone can talk about right now. Fist bumps are replacing handshakes and head nods are standing in for hugs. A downside of this increased attention from the media and the public has been rampant speculation and misinformation. From massive sporting event cancellations, think about the NCAA Tournament, the NBA season, to international conferences, south by Southwest got canceled, to schools and universities. If you’re listening to this podcast, you’re probably wondering how all of this affects your job, your source of income. What are your rights and responsibilities?

Robert Ingalls: 01:22 Now, despite all of these rampant concerns, attorney Josh Van Kampen and I have decided to huddle up in a room together. How are you Josh?

Josh Van Kampen: 01:30 I am doing well, how about yourself?

Robert Ingalls: 01:31 I am lovely. Thanks for having me here today to talk about this. This is a timely episode. So let’s jump in. When it comes to my employment, can my employer require me to report to work during an epidemic? Because I know people are really freaking out right now. They’re concerned, what if other people have it? I think as of this morning, I saw that it’s in our local area now, and people are concerned. So if I don’t have Coronavirus myself, can an employer require me to report to work during this epidemic?

Josh Van Kampen: 02:01 And right off the bat, we’re trying to answer these questions with an understanding though that the laws that are in place are more of a patchwork sort of situation. So there is no statute that specifically addresses the Coronavirus. And really we’re drawing parallels, for example, to the flu. Influenza virus is something that’s a parallel, but really it isn’t. Nonetheless, we’re going to try to give as concrete an answer as we can to folks today.

Josh Van Kampen: 02:32 So I think what you were asking about is a situation where the employee doesn’t have Coronavirus but is concerned that they may contract that virus at work. So there’s a law called the Occupational Safety Health Administration Act and that law does allow employees to refuse to report to work if they have a reasonable belief that a risk of imminent death or serious injury is present. So that’s the operative legal test, is risk of imminent death or serious injury. So here, this is a big deal. So certainly, if there is some factual basis within your own workplace, where there was somebody who has contracted the virus, who was at work for example or maybe you’re in a workplace where there are a lot of people that are flying in and out, especially from hotspots. Italy, at least while we’re recording this podcast, that would be Italy, for example.

Robert Ingalls: 03:28 Sure.

Josh Van Kampen: 03:28 Is a hotspot or Seattle or anywhere in China.

Robert Ingalls: 03:31 So I mean, the first thing I think of is airport workers.

Josh Van Kampen: 03:34 Right.

Robert Ingalls: 03:34 They’re right in the middle of it.

Josh Van Kampen: 03:36 Well and that’s the thing. But the flip side of that too is that the airlines and the administrators at these airports, they also need people to come to work too, so that’s certainly a dicier sort of call.

Robert Ingalls: 03:49 Sure.

Josh Van Kampen: 03:49 But in a general workplace, if there isn’t a particularized threat with respect to the Coronavirus, then I think an employee would be putting their job at risk by refusing to report to work.

Robert Ingalls: 04:02 So does it matter if the president or the governor has decided that there’s a state of emergency? How does that factor in?

Josh Van Kampen: 04:10 Governor Cooper in North Carolina has declared a state of emergency, but he hasn’t issued any pronouncements about reporting to work. But let’s assume that the governor himself has now said that employees are encouraged to work from home. And let’s say that the outbreak becomes way more serious than it is as of this recording, I think that can shift the analysis. So pay close attention to what the government is saying about, not only recommending, but maybe even requiring with respect to attendance at work. And certainly if you’re following whatever direction you’re getting from the government about not reporting to work, then you should be fine in not reporting.

Robert Ingalls: 04:51 Sure. So let’s say that I am exhibiting symptoms of the Coronavirus. Can my employer send me home then? Because I know that has to get dicey because from what I understand, the symptoms tend to emerge almost like the common cold.

Josh Van Kampen: 05:05 Yeah. Well in that sort of situation, so there’s a law called the Americans with Disabilities Act. And unfortunately, the ADA, it doesn’t apply to temporary conditions. So the Coronavirus or COVID-19 is a temporary condition. And so it’s probably not covered by the Americans with Disabilities Act. Normally the ADA protects employees from forced testing or medical related inquiries. We’re in a little bit of a gray area about what restrictions there are on what actions an employer can take toward an employee because the ADA may or may not apply. But can they send you home if you’re exhibiting symptoms? I think probably, yeah.

Robert Ingalls: 05:54 Now in general, could they send you home if you were exhibiting symptoms of just what appeared to be a cold on any other given day?

Josh Van Kampen: 06:00 Well, no. No they couldn’t. And that’s the thing where we’re in this kind of gray area or wild west arena when it comes to what employment protections are in place with something like this, because at least in terms of modern times, the scope of this is unprecedented. So we’re not quite sure how it’s going to be treated, but I think an employer would be within their rights to send home a worker who is exhibiting symptoms. Not indefinitely, you certainly can’t be fired because you’re exhibiting symptoms. And as of right now, the incubation period for this disease is 14 days. So I think that would be a reasonable time for an employer to be holding out an employee.

Robert Ingalls: 06:42 Now if they hold me out, is that something I can expect to be paid for?

Josh Van Kampen: 06:46 There’s no law on that. But I would certainly encourage listeners to say, “Look, I don’t think I have this. I feel like you’re penalizing me based on this perception. I’ve got a family to support. I’ll comply with what you’re asking me, but I need to be paid for being home during this incubation period. Furthermore, I’ll happily work from home. Just give me some tasks to do. I don’t want to sit on the couch and just collect a paycheck. Give me something to do.”

Robert Ingalls: 07:11 Right. So I’m going to ask you to look into your crystal ball here. You keep saying that there’s really not a lot of legislation around this yet. Do you think that that’s something we’re going to see over the next year or two?

Josh Van Kampen: 07:21 Well, yeah. I mean there’s definitely a void. And of course everybody’s… The legislature and the executive branch are preoccupied just with containing this thing right now. But it’s definitely exposed this gray area where even management side lawyers or defending companies or plaintiffs, lawyers like me are trying to figure out what the law requires or allows. And like you said, we’re having to use a crystal ball and that’s never a good way to advise the public.

Robert Ingalls: 07:48 Sure. So there has been a lot of information in the media on who has it, where these people are located. If my employer finds out that I was perhaps exposed to someone with Coronavirus, is that a situation where they could send me home or prevent me from coming to work?

Josh Van Kampen: 08:06 So let’s say you were just in Seattle for a business trip and now you’re wanting to come back and the employer is saying, “Well, we don’t want you back until you’re tested.” I don’t think that they can actually require you to take a test if you’re not symptomatic, because the taking of a Coronavirus test is basically almost like a medical inquiry. And the Americans with Disabilities Act prohibits employers from requiring medical inquiries in most circumstances. Even if you’re not disabled, there’s just a prohibition on requiring medical examinations in general. So I think on that one, if you just happened to come in from a particular region they’re concerned about, I don’t think that they can mandate that or prevent you from working. Totally different story if you’re exhibiting symptoms.

Robert Ingalls: 08:55 Gotcha. Now with the paranoia that is being exhibited in a lot of corners right now, let’s say that my employer came to me and wanted to take my temperature at work. What are your feelings on that?

Josh Van Kampen: 09:07 Well so that one’s an easy no, because the taking of the temperature, like I said, is a prohibited inquiry under the Americans with Disabilities Act. I’d once again, if you’re exhibiting symptoms and you’re coughing and sweating at work, well first of all, you should say yes. Because maybe you do have a fever and you should go to the doctor. But absent that, no, they can’t run around and take everybody’s temperature in the cubicles.

Robert Ingalls: 09:31 Yeah. In my mind, I have that picture of the old school thermometer with the mercury in it, going and putting it under everyone’s tongue.

Josh Van Kampen: 09:40 It’s definitely not lawful to do it the other way.

Robert Ingalls: 09:46 So am I protected from taking a medical leave if I have Coronavirus?

Josh Van Kampen: 09:51 So on that one, the answer is it depends. So like we talked about before, the Americans with Disabilities Act doesn’t help because it doesn’t cover temporary conditions. But there’s another law called the Family Medical Leave Act that has a looser definition for what people are protected. And for the FMLA, the standard is a serious health condition, which is a lot easier to satisfy. I would be confident in telling our listeners that COVID-19 would qualify as a serious health condition, but not everybody’s covered by the FMLA. So to be covered by the FMLA, the employer has to have more than 50 employees within a 75 mile radius of wherever you work. Also, you need to have worked for that employer for a year and have worked within a year, 1,250 hours.

Robert Ingalls: 10:43 Now let’s say that I don’t have Coronavirus, but my spouse or my child has it. So is that something that would also be covered under FMLA?

Josh Van Kampen: 10:52 Yeah. One of the nice features of the FMLA is that it doesn’t just cover your own medical leave, it covers your immediate family members. So for example, the FMLA even applies to scenarios where, let’s say you have an ailing parent who has Alzheimer’s or something. You can take off time to care for that ailing parent with Alzheimer’s. Same goes for a family member with COVID-19.

Robert Ingalls: 11:16 We talked earlier about the places where there’s a lot of travelers coming through. Let’s say I work in one of those places, I contract Coronavirus at work and then I need to miss work. Could I at that point file a workers’ compensation claim?

Josh Van Kampen: 11:31 Yeah, I would definitely encourage listeners to do that, because first of all, what is worker’s compensation? That generally covers situations where an employee is injured at work or in connection with work. Usually that takes place in some sort of physical injury that occurs. But if you’re on a business trip and you contract COVID-19, it’d be no different than you get in an accident and you were in the company car on a trip.

Robert Ingalls: 11:56 Yes.

Josh Van Kampen: 11:57 So yes, you should absolutely file that workers’ compensation claim. How do you do that? It varies by state, but in general, you can initiate that process by reporting to your human resources department that you’ve suffered a workplace injury. And at that point, that triggers an obligation with that employer to give you a workers’ compensation form to complete. So one of the nice features of the workers’ compensation laws is that if you’re going to be out on leave, that the employer would have purchased workers’ compensation insurance. And so you’re going to be paid while you’re out.

Josh Van Kampen: 12:32 So remember you were asking me questions earlier about whether or not this is paid or unpaid leave, workers’ compensation leave is paid. It varies by state, but in most states you get paid two thirds of your pay while you’re out on workers’ compensation leave. Also, your medical benefits are maintained at the same level while you’re on a workers’ compensation leave.

Robert Ingalls: 12:54 So if I contract Coronavirus and I notify my employer, at that point can they out me or can they tell my coworkers or management about this?

Josh Van Kampen: 13:02 So absolutely not. So under the Americans with Disabilities Act, it prohibits the disclosure by an employer of confidential medical information. That certainly would qualify. And so if an employer breached that, then you would have a claim under the Americans with Disabilities Act, even though COVID-19 probably doesn’t satisfy the disability definition.

Robert Ingalls: 13:25 Okay. Now are there any other laws out there that we haven’t talked about today that could offer some protection to workers?

Josh Van Kampen: 13:30 Yeah there’s actually a law called the National Labor Relations Act, which its traditional application is in union environments where you’ve got steel workers or metal workers who are covered by a collective bargaining agreement. But what most people don’t know, is that even if you’re not in a union environment, the National Labor Relations Act can still protect you if you are asserting rights on behalf of other workers. In other words, it’s called protected concerted activity, is the term under that law. But basically if you are standing up as a spokesman for other people that have a concern about workplace safety, you are protected under the National Labor Relations Act from being retaliated against.

Josh Van Kampen: 14:15 So let’s say that you have some concerns about COVID-19 being present in the workplace and you go into a meeting with a supervisor and you frame it as it’s an issue of, “I’m concerned for my own safety about COVID-19.” You wouldn’t be protected under the National Labor Relations Act because you haven’t made it about more people than yourself. You’re just talking about your own interests. But if you change that and you are saying that you’re worried about your coworkers’ safety and let’s say now the employer wants to retaliate against you, you would actually have a good wrongful termination case because under the National Labor Relations Act, because you stood up and were asserting a health and safety issues on behalf of your fellow workers.

Josh Van Kampen: 15:01 So that’s something where we’re able to hitch to another law and to have our folks protected just by tweaking slightly the terminology they might use with their boss or with human resources.

Robert Ingalls: 15:11 All right, perfect. Well thank you, this is very timely information. And if you’re listening and you have any questions, feel free, please do reach out and make an appointment to discuss this with Josh or any of his associates. All right, thanks Josh.

Josh Van Kampen: 15:24 And one more. I have one more thing for our listeners. I think that you and I need to be working on is the same analysis with the zombie apocalypse. And I can tell the listeners already that I’m pretty sure that if you’re infected with a zombie virus, you’re definitely disabled under the ADA and so we’re going to have a lot more rights for our zombified listeners.

Robert Ingalls: 15:46 I look forward to the evolving law on that. All right, thanks Josh.

Josh Van Kampen: 15:49 Yep. You bet.

Outro: 15:52 Congratulations for taking an important initial step in turning the tables at work. But this podcast is just an educational resource, it does not constitute legal advice and is no substitute for consulting an employment attorney about your unique situation before making legal decisions. Visit our website for more online resources and videos at ncemploymentattorneys.com or better yet, call (704) 247-3245 for a free initial intake interview so Van Kampen Law can evaluate your case. Until next time, keep your head up and your wits about you.