Figures from the Department of Employment and Economic Development (DEED) show that Minnesota’s seasonally-adjusted unemployment rate held steady at 3.1% during the period that included March 12, 2020. One week later on March 17, 2020, Minnesota Public Radio (MPR) reported that the Minnesota Unemployment Office was receiving 2,000 applications per hour.
Overnight, we’ve gone from a thriving, robust job market to what some fear is the worst thing to happen to our economy since the Great Depression. This means that it is no longer an employee’s, but rather an employer’s, job market.
With many businesses now struggling to survive, the potential for workers’ rights being violated has never been higher. In addition, the pandemic itself can bring about quite a few challenges when it comes to employment law, a few of which we will discuss below.
Attendance and Sick Leave
Businesses have been forced to implement very strict rules regarding who may work. In particular, many companies are now screening employees for symptoms at the beginning of each shift. Those with a fever, cough, or possible exposure to COVID-19 are often sent home rather than being allowed to work.
While policies such as these are designed to protect workers, they can nonetheless leave them vulnerable in other ways. For example, some now worry about being terminated because they have missed too many days of work-even if their absenteeism was not by choice.
Further complicating matters is the fact that employees are not always sure how much sick and safe time they have accrued. Minneapolis workers are safeguarded through the Wage Theft Protection Ordinance, which took effect January 1, 2020. This law requires employers to provide safe and sick time accrual information on all pay stubs and earning statements.
As part of the screening process, employers may ask about past or future travel plans. However, they may not do so in such a way that certain individuals are singled out because of race. In other words, everyone should be asked the same questions across the board.
Dealing with COVID Cases
Businesses should establish policies and procedures to deal with suspected or confirmed cases of COVID-19. Upon learning someone has tested positive, employers should then try to determine if the infection happened at work or elsewhere.
If the infection is work-related, that individual is entitled to receive workers’ compensation benefits. He or she should not face harassment, discrimination, or retaliation for filing a worker’s compensation claim.
Under the Americans with Disabilities Act (ADA), individuals cannot be treated differently because they have tested positive for COVID-19. At the same time, employers may take reasonable precautions to protect vendors, customers, and other workers from becoming infected. As such, they may need to take measures such as temporarily changing someone’s job duties.
Protecting others while maintaining an employee’s rights is a difficult line for many supervisors to walk. What is reasonable in one person’s mind may seem very unreasonable to another. Since there is no clear guidance, it also leaves plenty of room for abuse.
Changing Sick Leave Policies
The COVID-19 pandemic has resulted in an unprecedented number of people requiring sick leave. Consequently, many businesses have found they can no longer afford to pay everyone and have adjusted their policies accordingly.
The Department of Labor (DOL) states that it is not against the law for employers to change their sick leave policies. However, they do warn against discriminatory practices. For example, a business may not single out people because of their age, disability, religion, sex, race, veteran status, or any similar criteria.
DOL also notes that, if applicable, any sick leave policy changes should be done in accordance with Family Medical Leave Act (FMLA) requirements. Companies with more than 50 employees within a 75-mile radius are required to provide FMLA coverage to their employees.
Families First Coronavirus Response Act
On March 18, 2020, President Trump signed the Families First Coronavirus Response Act (FFCRA) into law. This law, which became effective April 1, 2020, provides changes to employees covered under Title 1 of the Family Medical Leave Act (FMLA).
It applies to private businesses with fewer than 500 personnel, as well as all public employers. Accordingly, it covers most laborers aside from federal workers.
Provisions of FFCRA
Those who are unable to work (or telework) are now eligible for paid sick time when:
- Under quarantine via a federal, state, or local quarantine order
- Self-quarantining under the advice of a physician
- Experiencing COVID-19 symptoms and seeking a medical diagnosis
- Caring for someone who is in quarantine or self-quarantine
- Caring for a child whose daycare center or school has closed due to the pandemic
Companies with fewer than 50 employees can be exempted from certain provisions, provided they would jeopardize the viability of the business. However, they cannot be exempted from providing leave for quarantine/self-quarantine, or caring for a family member who has quarantined or self-quarantined.
Further complicating matters is the fact that the DOL did not provide any instructions on how small businesses could claim their exemptions. In fact, the agency specifically told employers not to send materials to the Department of Labor when seeking an exemption.
Ambiguities such as these will only lead to confusion whether certain employees are covered. The fact that courts have not yet had a chance to rule on the law means there is a lot open to interpretation as well.
Some of the most common employment issues could potentially be magnified due to the pandemic. A few examples include:
- Failing to pay essential workers overtime pay
- Discriminatory practices in laying off employees
- Attempting to classify employees as independent contractors because they are suddenly working from home
- Refusing to track and pay for all hours worked at home
- Neglecting to maintain a safe work environment whenever possible
Workers facing employment issues related to COVID-19 may have a remedy available under law, and should therefore not feel as though they must suffer in silence. Instead, we encourage them to contact us for a full assessment of their case.
Disclaimer: The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individualsituation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.