Posted by Joshua R. Goodbaum
As our world faces an unprecedented health crisis, many Connecticut workers are naturally concerned about their employment. Here are the answers to some of the questions that Connecticut employees are likely asking themselves during this unsettling time.
Please bear in mind that this information is intended for a general audience and, because each workplace situation is unique, it is no substitute for tailored advice from an experienced employment lawyer, nor does reading this information create an attorney-client relationship between you and our firm.
If You or a Family Member Has or Had COVID-19
For the most part, yes. The federal Family and Medical Leave Act (FMLA) ordinarily provides that workers are entitled to 12 weeks of leave per year for qualifying medical or family reasons, without risk of losing their jobs. The Connecticut FMLA is similar but provides for sixteen weeks of leave every two years. An employee or her family contracting COVID-19 would allow FMLA leave under either statute. Importantly, although FMLA leave is unpaid, employers must maintain their employees’ health insurance on the same terms as if they were working.
Ordinarily, the FMLA only applies to private companies with 50 or more employees and to employees who have worked at least 1,250 hours during the preceding 12 months. However, the Families First Coronavirus Response Act (FFCRA) – the second law that Congress passed in response to the pandemic – broadens the eligibility for FMLA leave. From April 1 through December 31, 2020, employees at companies with fewer than 500 employees can take FMLA leave if they or a loved one contract COVID-19 or if they are unable work because they are caring for a child under 18 years of age whose school or childcare provider has been closed. In contrast to regular FMLA leave, the employees only need to have worked at the company for at least 30 calendar days before taking the leave.
Note that this expansion of the FMLA does not automatically apply to “health care providers” or “emergency responders” (although the pre-COVID FMLA still does). For those employees, they must qualify for FMLA leave under the pre-FFCRA version of the law.
Frequently, yes. FMLA leave ordinarily is unpaid, meaning employees don’t receive their regular pay while they are on leave. Under the FFCRA, though, employees who take FMLA leave can receive sick pay. The first 10 days of leave are unpaid, although employees can use their accrued paid time off to cover their income or can use benefits available under the Emergency Paid Sick Leave Act (the second law that Congress passed in response to the pandemic). After that, employers are obligated to pay full-time employees two-thirds of their regular pay for up to 10 weeks, with a cap of $200 per day and $10,000 overall.
Yes. Ordinarily, employers cannot prohibit employees with chronic medical conditions from working. (In fact, for the most part, employers cannot even ask employees about their chronic medical conditions.) The situation is different, however, when the medical condition constitutes a “direct threat” to the health of the employee or to the workplace more generally. Because COVID-19 is highly contagious, and an employer has a duty to take reasonable measures to ensure a safe workplace, it likely may bar an employee who has active COVID-19 from the workplace until the employee is no longer contagious.
Probably not. COVID-19 likely constitutes a disability under the Connecticut Fair Employment Practices Act (which defines a physical disability as any “chronic physical handicap, infirmity or impairment”). It may also constitute a disability under the federal Americans with Disabilities Act (which uses a slightly different definition). Either way, if COVID-19 is a disability, then it is illegal to bar an employee from employment in Connecticut because that employee previously had the disease.
While we are not aware of any COVID-19 claims that have been processed through the Connecticut Workers’ Compensation Commission at this point, employees who contract COVID-19 in the course of their employment are likely eligible for worker’s compensation benefits. In order to obtain benefits, though, you probably will need to prove that, more likely than not, you contracted COVID-19 through your work and not, say, from a family member. If you believe you are entitled to workers’ compensation benefits, you should consider contacting a lawyer who understands the workers’ compensation system.
Returning to Work
No one can force you to go to work. However, fear alone is generally not a valid reason to refuse to return to work. If you simply tell your employer that you refuse to return to work because you are afraid (without saying anything else), you risk being terminated. The better course is to explain to your employer exactly why you are afraid and to ask for information about what steps your employer is taking and can take to keep you safe. If your employer does not make your workplace reasonably safe and terminates you for refusing to work in unsafe conditions, that might constitute a wrongful discharge in violation of public policy under the Connecticut common law and may also implicate other laws.
In addition, if you have a chronic health condition or another disability that is underlying your fear of returning (including if your fear rises to the level of a diagnosable mental health condition, such as an anxiety disorder), there are additional steps you should follow. Read on.
You can start by simply asking your employer whether it will allow you to work from home and, if that is not feasible, to stay out of work for an additional period of time.
However, if the answer is no, you may want to tell your employer about your health condition. Most serious health conditions – heart disease, cancer, asthma, and diabetes, to name just a few – constitute disabilities under federal and Connecticut law. If you have a disability, you are entitled to a reasonable accommodation to help you do the essential functions of your job. Depending upon your job and workplace, accommodations might include telecommuting; relocating your workspace to minimize contact with coworkers; providing you with special personal protective equipment (or PPE); or any number of other measures. You should suggest workplace accommodation(s) that are reasonable for you and that will help you do your job.
Once you disclose your disability and suggest an accommodation, your employer has an affirmative duty to work with you to find an accommodation. (This process is called an “interactive dialogue,” because it is supposed to be a “give and take.”) The duty of the employer to explore such accommodations with you, however, is only triggered if they know of your disability.
If you disclose your disability and your employer refuses to engage in the “interactive dialogue,” or terminates you on the basis of your disability, then you may have been subjected to unlawful disability discrimination.
Yes. Under federal law, pregnancy alone is not considered a disability, and it therefore does not automatically entitle you to a reasonable accommodation. However, Connecticut law is more favorable for pregnant employees than federal law, because it provides a number of important protections, including the right to a reasonable accommodation.
You may want to start by talking with your employer about your family member’s situation. Your employer may decide that it is not necessary for you to return to work just yet. Or your employer may be able to provide you with an accommodation – such as working from home – that will eliminate your concerns.
However, an employee who has a family member with a disability is not legally entitled to a reasonable accommodation under the federal Americans with Disabilities Act (ADA). Only employees with their own disabilities are entitled to those protections under federal law. Connecticut law may provide greater protections for Connecticut workers than the ADA.
Although you may not be entitled to an accommodation because of your family member’s condition, you could be entitled to leave under the Family and Medical Leave Act (FMLA), and that in turn may entitle you to compensation under one or more laws passed by Congress in response to COVID-19.
Potentially. If you are eligible for leave under the Family and Medical Leave Act (FMLA), then you are entitled to take unpaid leave from work. The Families First Coronavirus Response Act (FFCRA) expanded the category of workers who are eligible for the FMLA, but those expansions do not apply to some categories of essential workers. If you are not eligible for the FMLA, then there may be consequences for your refusal to return to work, potentially including termination.
You may want to start by talking with your coworkers about their views regarding these safety issues, as long as such conversations take place on your own time and do not disrupt the workplace. This is called “concerted activity,” and as explained in more detail below, it is legally protected, meaning you cannot legally be terminated because of it. Next, you may want to talk to or email your employer about what you and your coworkers perceive to be the unsafe practices in the workplace. (It is often preferable to make these complaints in writing so there can be no disagreement later about what you said.)
If you complain to your employer and nothing improves, you might consider filing a complaint with the Occupational Safety & Health Division at the Connecticut Department of Labor, which is responsible for ensuring that workplaces are safe.
Probably yes. Your employer has the right to control the terms and conditions of your employment. Just as this can include requiring you to wear a uniform, it also can include requiring you to wear PPE. There may be an exception if you have a disability that would be aggravated or exacerbated by wearing PPE (for example, if you have asthma and a face mask would make it difficult to breath). If that is the case, you should discuss your disability with your employer and request a reasonable accommodation.
Before COVID-19, the answer to this question usually would be no, because the federal Americans with Disabilities Act (ADA) prohibits employers from conducting medical examinations or asking employees about their medical histories, with limited exceptions. However, with the rise of COVID-19, the agency that administers the ADA – the Equal Employment Opportunity Commission – has determined that employers may ask employees about the disease and may do body temperature screenings to prevent employees with the virus from coming to work.
Working From Home
Probably not. In general, there is no legal right to telecommute. However, as explained above, if you have a disability, you may be entitled to a reasonable accommodation to assist you in performing your job, and this accommodation might include working from home. Whether that accommodation is reasonable will depend on all of the circumstances of your situation, including most especially the nature of your job.
In general, yes. Your employer has the right to control the terms and conditions of your employment, including where you work, so long as they otherwise comply with the law.
What your employer may not do is to require you to work from home merely because you have or are perceived as having a documented disability. In general, your employer cannot keep you from coming to work merely because it thinks that COVID-19 would be more dangerous for you than for other employees.
Under Connecticut law, probably not. However, if your employer requires you to work from home but refuses to provide you with the resources you need to do your work there, then you may have a good justification to receive unemployment benefits even if you have not been formally terminated.
Hiring and Firing
Don’t panic. Unfortunately, some employers do not react to bad news the way they should.
In most circumstances, terminating an employee because they or a loved one have COVID-19 is illegal. It likely violates the FMLA (as described above), and it may also constitute disability discrimination.
The first thing you should do is apply for unemployment insurance, which you can do here.
The next thing you should do is to call a lawyer who specializes in representing employees.
In general, yes. From a legal perspective, job offers are simply offers to enter into a contract, and offers to contract can be rescinded (or taken back) unless the offer itself is “irrevocable,” which is extremely unusual in employment situations. If a potential employer offered you a job and then told you it no longer has a need for your services (for example, because of a downturn in its business), there is likely very little you can do. (It would be different if the offer were rescinded because of your membership in a protected class. For example, if you lost a job offer because your employer found out you were transgender or because you developed a disability, that would be a violation of Connecticut law.)
The answer is usually the same even if you have accepted the offer. That is because most employment in Connecticut is “at will,” meaning the employee can be terminated at any time (including before the employment starts) for any reason at all, so long as it is not an unlawful reason. So an accepted job offer does constitute a binding contract, but one of the terms of that contract is usually that you can be terminated “at will.” If you have a contract (either written or verbal) that provides for a specific period of employment, though, then you may be entitled to compensation for breach of that contract.
Perhaps. Severance offers are offers to enter into a contract, and like other offers to contract, they can have expiration terms. The employer can say when it makes the offer that the offer will expire after a certain amount of time, or the employer can contact you after communicating the offer to revoke what it has previously put on the table.
In practice, however, employers frequently hold severance offers open for a minimum of 21 days, at least for employees who are 40 years old or older. This is because a federal law called the Older Workers Benefit Protection Act requires employers to follow certain rules in order to obtain a valid release of federal age discrimination claims. The rules are extensive, but among the most important is that, in order for the release to be effective, the employee who is 40 or older must be given at least 21 days — or 45 days, under some circumstances — to consider it. (The employee must also be given seven days to revoke or rescind her acceptance.)
The answer depends on the reason for the pay cut and how it is administered. If the reason is a downturn in business, and if the pay cut is being administered fairly and equitably, then yes. If, however, your employer is only cutting the pay of older workers or disabled workers or some other protected class of workers, then that is illegal. In addition, if you have a contract that guarantees you a specific rate of pay, then the pay cut may constitute a breach of your contract.
Maybe not. If you are properly classified as an exempt employee and are paid a salary, then you are not entitled to overtime. However, if your job duties do not qualify your employer to receive an exemption from the overtime laws, then you are entitled to be paid the overtime rate for your overtime work.
If your employer is not paying you, then you should not be working. Put another way, you are entitled to compensation for all of your work. The fact that you may have been working from home makes no difference. Nor does it make a difference if you agreed to “volunteer,” because the law does not allow your employer to hold you to that promise. If you have been working and have not been paid for it, you may be entitled to compensation.
No. A federal law called the National Labor Relations Act protects the rights of non-supervisory employees to engage in “concerted activity.” This means you are legally entitled to talk with your coworkers about how to improve the terms and conditions of your employment. This might include talking about how to ask for a raise, or circulating a petition asking for proper PPE, or gathering together to refuse to work in an unsafe environment. If you have been terminated for talking with your coworkers about your workplace or trying to gather together your coworkers to improve the situation in your workplace, you should contact an experienced employment lawyer.
If you are applying for or have been collecting unemployment through the Connecticut Department of Labor, you may have questions about the process or your legal rights. This post will answer many of your questions.