What Are My Rights to Paid Leave and Unemployment During the Pandemic?
Note: this article was updated on April 22, 2020 to reflect new guidance from the Department of Labor -Editors.
On March 18 Congress passed the Families First Coronavirus Response Act (FFCRA), in part to discourage layoffs and in part to guarantee paid leave to workers who need to stay home due to the COVID-19 emergency. On March 27 Congress enacted the CARES Act to expand unemployment insurance eligibility and benefits. Both laws expire on December 31, 2020, unless extended.
What follows is a selection of questions relating to the new laws. Please note that this is a complicated and rapidly changing area. Although the U.S. Department of Labor has issued several regulations and guides, aspects of the programs remain hazy.
Moreover, enforcement is likely to be slow and spotty, as a poorly staffed federal Wage and Hour Division of the Department of Labor appears unable to effectively oversee the leave program and state UI agencies claim to be overwhelmed by the crush of applications. Union workers should always review their contracts to see if they have stronger protections.
1. Business shut down due to COVID-19 emergency
Q. Our governor has ordered nonessential retail businesses to close temporarily due to the COVID-19 emergency. My employer, a department store, has issued over 300 layoff notices. Can I collect unemployment insurance (UI) benefits though I only worked there for a week?
A. Yes. The CARES Act awards UI benefits to workers who are laid off, temporarily furloughed, or reduced in hours due to the COVID-19 emergency–even if they have a sparse wage history. Most states pay approximately 50 percent of wages up to a maximum amount that varies significantly around the country. Some add more for dependents.
The CARES Act adds $600 to weekly UI benefits between March 27 and July 31, 2020–even if this raises benefit checks above a claimant’s regular pay. UI payments are taxable.
2. Quit due to COVID-19 safety concerns
Q. I work in a supermarket in close contact with customers and co-workers. Social distancing is impossible. Management has not responded to our complaints about the lack of proper protective equipment. Two workers have contracted COVID-19 and I have a history of COPD. If I quit because of the virus risk, could I qualify for unemployment insurance?
A. Possibly. The CARES Act grants UI eligibility to an employee “who has to quit his or her job as a direct result of COVID-19.” Although the Act does not elaborate, the entitlement would appear to apply to an employee with a serious underlying health condition who stops work because of a reasonable fear of incurring death or serious harm from the virus, especially if advised by a health care professional. A state UI official will ultimately decide.
Tip: Put your resignation in writing, making sure to explain your fears.
3. Paid sick leave during self-quarantine
Q. My doctor has told me to self-quarantine for two weeks due to COVID-19 symptoms. Does my employer have to grant me paid leave for the absence?
A. Yes, unless you are a health care provider or an emergency responder or work for an employer with 500 or more employees (see questions 5 and 6 below).
Under the FFCRA a full-time worker who needs to quarantine due to COVID-19, or who is experiencing symptoms of the virus and seeking a diagnosis, is entitled to up to 80 hours of paid sick leave at a rate of up to $511 per day over a two-week period. Part-timers are entitled to pay on a pro-rata basis. The employer is reimbursed dollar-for-dollar through tax credits from the federal government.
You cannot be required to use other accrued benefits, such as paid vacation or sick leave, in place of FFCRA leave. Nor can you be required to make up the time.
Your employer must continue paying for group health coverage during your leave. If your workplace has 25 or more employees, you must be restored to your regular job or an equivalent position (unless a layoff affecting you has transpired).
Your employer can deny paid leave if 1) you decline an offer of telework, or 2) there is no work available. In the latter event, you would qualify for UI benefits.
After two weeks, if you continue in quarantine, or if you are still experiencing COVID-19 symptoms (but are not severely ill), you may file for benefits from your state UI agency.
Note: You are also entitled to paid leave to care for a family member or other person with whom you have a relationship who is subject to a quarantine order or is advised by a physician to self-quarantine. Your rate will be two-thirds of your regular pay up to a maximum of $1,000 per week.
Note: Workers requesting paid sick leave under the FFCRA must give notice to their employer as soon as is practicable after the first day missed, providing the name of the health care provider who issued the stay-at-home advisory.
4. Paid childcare leave
Q. My ten-year-old child’s school has closed due to the COVID-19 crisis and I must be home to care for her. Does my boss have to provide me with paid time off?
A. Yes. You are covered by the FFCRA if you have worked 30 days or longer for your employer and you are not in one of the Act’s exempt categories (see questions 5 and 6 below). Eligible employees are entitled to 12 weeks of protected paid time off if a child’s school or daycare center closes due to the COVID-19 crisis and no other parent or usual childcare provider is available.
The pay rate for workers taking childcare leave under the FFCRA is two-thirds of regular pay up to a maximum of $200 per day. You may supplement your check up to your regular earnings with other available paid leave such as sick or vacation pay. Leaves may be taken intermittently—up to a total of 12 weeks—if your employer agrees. Your employer may not take adverse action against you because of your time-off request.
Your weeks out of work will count against your annual 12-week Family and Medical Leave (FMLA) entitlement. If your employer violates your leave rights, you may file a complaint with the Wage and Hour Division of the U.S. Department of Labor.
A worker whose request for childcare leave is denied may apply for UI benefits. UI benefits may also be available if you need more than 12 weeks time off. You cannot collect UI benefits for any weeks that you receive paid leave.
5. Employers can refuse leave requests from health care providers
Q. I am a hospital nurse. My child’s regular caregiver cannot come to my home because of the COVID-19 virus. Am I entitled to paid time off?
A. This is a sore point. To guarantee the availability of medical personnel, the FFCRA allows covered employers, public and private, large and small, to deny COVID-related sick and caregiver leave to persons who serve as “health care providers.” A similar federal law (the FMLA) restricts this term to physicians and other professionals qualified to issue medical diagnosis. According to the Labor Department, however, for purposes of FFCRA leave the phrase includes everyone employed by a hospital, clinic, nursing home, pharmacy, medical products manufacturer, or other similar institution. Consequently, your hospital can refuse your request.
Note: A hospital employee whose request for a COVID-related caregiver leave is denied can stop work and file for UI benefits under the CARES Act. The possible downside is that the employee may lose his or her rights to paid health insurance and reemployment.
6. Large employers can refuse leaves
Q. We work for General Motors. Are we entitled to sick and caregiver leaves under the FFCRA?
A. Surprisingly, no. Congress excluded private employers with 500 or more employees (across all facilities) from the FFCRA, supposedly to prevent such employers from claiming the Act’s tax credits.
7. Public employees
Q. Are state workers entitled to paid sick and childcare leaves under the FFCRA?
A. Yes. The FFCRA applies to all state and local government agencies and many, but not all, federal agencies.
8. Small employers and paid leave
Q. I work for a private social service agency with 12 employees. Does the agency have to approve FFCRA leaves?
A. Yes, with one exception. An employer with less than 50 employees can deny a COVID-19 child care leave if the employee’s absence would prevent the employer from working at minimum capacity or would cause expenses to exceed its revenues.
9. Workplace closes during caregiver leave
Q. I am in the midst of a 12-week FFCRA leave to care for my children. If my company closes its workplace during my absence, can it stop paying me?
A. Yes. Pay to a COVID-related leavetaker can be halted if the employer closes its doors or otherwise has no work available. You would then be able to apply for UI benefits.
10. Independent contractors and UI benefits
Q. I drive for Uber. Due to COVID-19, rides have dried up all over the city. Due to the social distancing and stay-at-home guidelines connected to COVID-19, rides have dried up all over the city.
A. Yes. The CARES Act allows self-employed persons, including independent contractors and “gig” workers, whose incomes have dried up due to the COVID-19 crisis to file for total or partial UI benefits through December 26, 2020. Successful claimants will receive their regular weekly rate plus a $600 bonus (the bonus ends July 31). Benefits may continue for as long as 39 weeks. You will need to document or otherwise certify your lost earnings.
11. Part-time workers and UI benefits
Q. I was working part-time when my employer ceased operations due to the COVID crisis. Do I have to look for full-time work to receive UI benefits?
A. No. The CARES Act allows persons out of work because of the COVID crisis to limit their job search to part-time work.
12. Undocumented workers and UI benefits
Q. Can undocumented immigrants file for UI benefits due to the COVID-19 public health emergency?
A. No. Although undocumented workers are deemed essential in some industries, they are still excluded from UI programs.
Robert M. Schwartz, a retired union lawyer, is the author of several Labor Notes books, including The Legal Rights of Union Stewards, The FMLA Handbook, and Just Cause: A Union Guide to Winning Discipline Cases. Ordering information is at labornotes.org for when our online store reopens.