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Friday, February 28, 2020

What Are Your Employee Rights Regarding Coronavirus?

I've shuddered everytime I've read about another coronavirus quarantine, because I assume lots of folks are losing their jobs when they don't return from vacation. So what are your rights if you're quarantined? What are your rights if you get coronavirus? And what are your rights if your coworkers have coronavirus? Well, there are few certain answers, but there are some laws that might help:

State laws on paid sick leave: Some, not a majority, of states require employers to offer paid sick leave. Anti-employee Florida has no such law.

FMLA: If you've worked at least a year and your employer has at least 50 employees within 75 miles of your work location, you may qualify for FMLA. If you're sick with coronavirus, you have a serious medical condition that is almost certainly covered. However, if you're quarantined but not sick, it's less clear. The only case I found regarding quarantine and FMLA was regarding an employee who was actually sick. If the quarantine is in a hospital or medical facility, then it may be covered under the inpatient section of FMLA. There’s also a continuous treatment provision, protecting “any period of absence to receive multiple treatments by a health care provider…for a condition that would likely result in a period of incapacity of more than three consecutive full calendar days in the absence of medical intervention or treatment.” So if the quarantine requires repeated medical testing, then I think there’s a good argument FMLA applies. If you do qualify, then you get up to 12 weeks of leave, paid to the extent you have accrued vacation or sick time, the rest of the time unpaid. And your job is protected when you return.

OSHA: Employers that make workers come in with coronavirus may be violating OSHA regulations. Here’s what OSHA says about coronavirus:
There is no specific OSHA standard covering COVID-19. However, some OSHA requirements may apply to preventing occupational exposure to COVID-19. Among the most relevant are: 
OSHA's Personal Protective Equipment (PPE) standards (in general industry, 29 CFR 1910 Subpart I), which require using gloves, eye and face protection, and respiratory protection. 
When respirators are necessary to protect workers, employers must implement a comprehensive respiratory protection program in accordance with the Respiratory Protection standard (29 CFR 1910.134). 
The General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health (OSH) Act of 1970, 29 USC 654(a)(1), which requires employers to furnish to each worker “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” 
OSHA’s Bloodborne Pathogens standard (29 CFR 1910.1030) applies to occupational exposure to human blood and other potentially infectious materials that typically do not include respiratory secretions that may transmit COVID-19. However, the provisions of the standard offer a framework that may help control some sources of the virus, including exposures to body fluids (e.g., respiratory secretions) not covered by the standard.
State quarantine laws: There are laws in some states, not Florida of course, protecting employees from being discharged due to complying with a quarantine.

Violation of public policy: While Florida, being the anti-worker state it is, has no such protection, many states have a claim for wrongful termination in violation of public policy. So if your state has decided public policy would require coronavirus victims to stay home, this might protect you from termination.

Disability discrimination: It's unlikely that coronavirus will be considered a disability, but if you are unfortunate enough to end up with a chronic condition from it, you may be protected under state and federal disability discrimination laws.

Unfortunately, many workers are not protected by any laws in case of a pandemic. Most won't get paid leave. Most don't have job protection. If I had a magic wand I'd make Congress and the Senate and the President stop squabbling and pass a law protecting workers in a pandemic. Otherwise, nasty bosses will require sick workers to come in or be fired, or sick workers who can't afford time off will work, and the virus will spread. With something like a 1 - 3% mortality rate, coronavirus could make a big dent in a large company, and could decimate a small one, so bosses should think before being jerks about sick time.

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I appreciate your comments and general questions but this isn't the place to ask confidential legal questions. If you need an employee-side employment lawyer, try http://exchange.nela.org/findalawyer to locate one in your state.