HKM is no longer taking specific inquiries or addressing specific questions as it relates to employees and the coronavirus pandemic. That being said, we intend to periodically update our main coronavirus site, https://hkm.com/coronavirus/, which contains a FAQ, recordings and transcripts of prior roundtables, and other resources helpful to employees. We feel that focusing on the FAQ in our website, https://hkm.com/coronavirus/ is the best way to assist as many employees and workers as possible.
Disclaimer: Please note that this site, this email, and our roundtable are being presented as pro-bono short-term legal services without expectation by either the recipient of this email or HKM that HKM will provide continuing representation in the matter. HKM will maintain as confidential the information learned from and about the recipient of this email. HKM has no ongoing obligations to the recipient of this email after sending this email: an ongoing relationship between HKM and the recipient of this email can and will only be created with a written engagement letter signed by both HKM and the client. HKM does not have lawyers admitted in every jurisdiction. If individuals who have consulted with HKM would like to form an ongoing or future client-lawyer relationship, and HKM does not have a lawyer admitted in that jurisdiction, HKM will secure local counsel and expect to be admitted pro hac vice in any potential litigation. HKM has lawyers admitted in the following jurisdictions: California, Oregon, Washington, Arizona, Nevada, Wyoming, Colorado, Kansas, Missouri, Pittsburgh, West Virginia, Georgia, Virginia, and Washington, DC. In the situation where we are not admitted in your state, we strongly encourage you to consult with a local attorney.
Please note as well that the selection of an attorney is an important matter that should not be based solely on advertising materials. If you have specific questions, we ask that you contact a lawyer specifically. Further, please note that the situation surrounding COVID-19 is evolving and the subject matter discussed in this email may change on a daily basis. Please contact an attorney for timely, updated advice.
HKM Employment Attorneys represents individuals and employees nationwide in all facets of employment litigation, counseling, and advice. In light of the Coronavirus pandemic, we are providing this resource, free of charge, to assist employees with common questions and concerns with issues surrounding Coronavirus and Covid-19.
The next roundtable will take place on Tuesday, June 2nd at 12:00 PM MDT. If you are interested in attending this roundtable, please enter your information and any questions to receive the conference call number and passcode for the roundtable. In addition, if you have any questions that you want answered at the roundtable, please list the question below.
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Roundtable Transcripts
This resource page will be updated frequently, and we encourage you to check it often.
What does the coronavirus stimulus bill do?
The stimulus bill, called the Coronavirus Aid, Relief and Economic Security (CARES) Act, which was signed on March 27, does four basic things:
- The bill provides money directly to many individuals;
- The bill expands unemployment benefits;
- The bill provides additional relief for student loan debt; and
- The bill provides an avenue for small businesses to obtain loans
Tell me more about the direct payment to individuals
Each qualifying adult will receive $1,200 and $600 for each dependent child under 16. Single adults who earned less than $75,000 will get the full $1,200. Married couples who collectively earn less than $150,000 will get the full $2,400.
If you earn (adjusted gross income) more than $75,000 for an individual, or more than $150,000 as a couple, then you will not get the entire amount. Above those income figures, the payment decreases until it stops altogether for single people earning $99,000 or married people who have no children and earn $198,000. A family with two children will no longer be eligible for any payments if its income surpassed $218,000.
What year is looked at to determine how much money I get?
2019. If you haven’t prepared a tax return yet, you can use your 2018 return.
How will I get the money?
If you paid your taxes through direct deposit, the money will get directly deposited into your account. Otherwise, you should receive a check.
What about the expansion of unemployment benefits?
The CARES Act will make it easier for individuals to get unemployment benefits.
For employees, the Act adds the reasons for how an employee can obtain unemployment benefits to include:
- The individual is diagnosed with COVID-19 or experiencing COVID-19 symptoms and seeking medical diagnosis;
- A member of the individual’s household was diagnosed with COVID-19;
- The individual is caring for a member of their family or household who was diagnosed with COVID-19;
- A child or person for which the individual has primary caregiving responsibility is unable to attend school or another facility that is closed as a direct result of the COVID-19 public health emergency and such school/facility is required for the individual to work;
- The individual is unable to reach the place of employment because of a quarantine imposed as a direct result of COVID-19 public health emergency;
- The individual is unable to reach the place of employment because a health care provider advised to self-quarantine due to COVID-19 related concerns;
- The individual was scheduled to commence employment and does not have a job or is unable to reach the job as a direct result of the COVID-19 public health emergency;
- The individual became the breadwinner or major support because the head of household died from COVID-19;
- The individual has to quit as a direct result of COVID-19;
- The individual’s place of employment is closed as a direct result of COVID-19 public health emergency; or
- The individual meets additional criteria established by the Secretary of Labor.
Further, the CARES Act now allows independent contractors/gig workers to obtain unemployment benefits as long as the independent contractor is willing to work, but unable to because of any of the reasons described above. Prior to the CARES Act, independent contractors were not eligible for unemployment benefits.
How much additional unemployment benefits will be provided?
Each individual receiving unemployment benefits will receive the normal amount plus, until July 31, an additional $600 per week. (This $600 additional pay will not be provided after July 31) Further, unemployment benefits are expanded from 26 weeks (the normal duration for most states) to 39 weeks.
Does this stimulus bill affect student loans?
For any student debt held by the federal government, you will have automatic suspension of paying any debt until September 30.
Any other places to find out more information about what the stimulus bill does?
Yes. For a more detailed explanation, we suggest you go here: https://www.nytimes.com/article/coronavirus-stimulus-package-questions-answers.html
As an employee, are your rights changing and in flux?
Yes. Sometimes daily. That is why it is very important to check back on this website for any updates. For example, many states are in the process of providing additional protections for employees as a result of the Coronavirus pandemic.
The below information, however, is based on what the current state of the law without the federal law (which would take effect in early April).
What is the Families First Coronavirus Response Act (the “Act”)?
The Families First Coronavirus Response Act (the “Act”) is the bill passed by the federal government to provide some relief to some employees. The Act was passed on March 18, 2020, and will take effect until April 2, 2020. This Act will expire on December 31, 2020.
What does the Families First Coronavirus Response bill do?
The Act has three main provisions relevant to all employees nationwide.
First, the Act amends the Family and Medical Leave Act (“FMLA”). The Emergency FMLA now provides that for employees of companies with less than 500 employees, employees who have been employed for at least 30 days are entitled to up to 12 weeks paid leave if they are care for a son or daughter following the closing of a school or child care and is unable to work or telework. The first ten days would not be paid. After that, employees would be paid by their employer 2/3 of their regular pay (up to $200 per day). Qualifying employees are only entitled to 12 weeks of FMLA for the entire year. For companies with less than 50 employees, the government can excuse them of the act if the paid leave “would jeopardize the viability of the business as a going concern.” Further, employers can exclude employees who are health-care workers for first responders.
If an employee is part-time, the employee is paid based on the average number of hours the employee worked for the six months prior to taking Emergency FMLA.
Second, the Act requires companies with less than 500 employees to provide up to 80 hours of sick leave pay (up to $511 per day) to any employee who is:
- subject to a federal, state or local quarantine or isolation order related to COVID-19;
- advised by a health care provider to self-quarantine due to COVID-19 concerns;
- experiencing COVID-19 symptoms and seeking medical diagnosis;
- caring for an individual subject to a federal, state or local quarantine or isolation order or advised by a health care provider to self-quarantine due to COVID-19 concerns;
- caring for the employee’s child if the child’s school or place of care is closed or the child’s care provider is unavailable due to public health emergency; or
- experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
If you obtain sick leave because of reasons 1-3, you get 100% of your wages for up to 80 hours (with a maximum payment of $511 per day).
If you obtain sick leave because of reasons 4-6, you get 66% of your wages to 80 hours (with a maximum payment of $200 per day).
If an employee is part-time, then the employee is entitled to the same amount of leave as the employee works in an average two-week time period. As long as employees have worked for the company for one day, they are entitled to this sick leave if they meet the conditions described above.
Similar to the emergency FMLA, an employer can exclude from the sick paid law any health-care workers or first responders.
Third, the Act will make it easier (at least in theory) to obtain unemployment benefits if you are laid off. The Act provides a substantial amount of additional money to the states (who administer unemployment claims) for unemployment, but only if the states show that they are making it easier for applicants to obtain unemployment. For example, to receive the money, the states will need to show that the they are waiving some of the more onerous restrictions, such as work search requirements and waiting periods.
For the first two weeks of unpaid Emergency FMLA leave, can I use my accrued vacation or accrued sick leave to get paid?
Yes. If you get FMLA under the new act, the first two weeks will be unpaid. But if you have other accrued paid benefits (e.g., you have accrued vacation time), you could use those to get paid for those two weeks.
I’m an independent contractor. How will the Act affect me?
This bill will not entitle you to FMLA leave or sick leave. The bill, however, will give you some tax relief on your income tax via various tax credits.
What if my employer already has a leave policy?
If your employer has a leave policy already, the paid sick time required this new bill must be in addition to the leave policy that the employer already provides.
How is my company supposed to pay for the new provisions in the Act?
The company will get tax credits to offset sick leave and FMLA leave pay.
Can my employer retaliate against me for taking the leave to care for my child?
Absolutely not.
Can my employer retaliate against me for taking the sick leave?
Again, absolutely not.
But will my job be safe if I take FMLA leave?
If you work for a company with more than 25 employees, your job should be safe. If, however, you would for a company with 25 or less employees, your job may not be safe if your position is eliminated due to the economic downturn as a result of the coronavirus pandemic.
What happens if I work for a company with more than 500 employees?
If you work for a company with more than 500 employees, then you are not covered by the Families First Coronavirus Response Act (the “Act”). This means that you do not get the protections from the Act. This means that you have no legal right to take FMLA leave to care for a child whose school has been closed, and you may not have legal right to obtain paid sick leave if you are experiencing COVID-like symptoms.
But, even if you are not covered by the federal law, you may be covered under Colorado law.
In Colorado, if you work for any of the following industries (see below), you have flu-like symptoms, and are being tested for coronavirus COVID-19, you will be entitled up to four days of sick leave. These industries are:
- Leisure and hospitality
- Food services
- Child care
- Education, including transportation, food service, and related work with educational establishments
- Home health, if working with elderly, disabled, ill, or otherwise high-risk individuals
- Nursing homes
- Community living facilities
That being said, if you believe you have coronavirus or coronavirus-like symptoms, you may be entitled to traditional FMLA (not the Emergency FMLA leave, which was part of the bill just passed into law), which gives you the right to take up to 12 weeks off unpaid leave for a covered illness. It is still an open question as to whether having COVID-19, or having symptoms, would constitute a “covered illness” under the traditional FMLA.
Do you have to go to work if you don’t want to?
Depends, and there a few options for you.
First, if you work in a non-essential business, you simply cannot go to work by order of Governor Polis.
Second, even if you work work an essential business, you should check to see if you are eligible under the Families First Coronavirus Response Act (the “Act”) (see above). If you are, then you are able to take Emergency FMLA leave to care for a child, or you are able to take up to two weeks of paid sick leave to treat yourself for coronavirus or coronavirus-type symptoms, or to care for a family member. If any of these apply, yes, you would not have to go into work.
Third, you should see if you are covered under Colorado leave for sick leave (see above).
Fourth, you can see if you have accrued vacation time or sick leave provided by your employer, and see if you can use that.
Fifth, if you suffer from a disability that makes you immunocompromised, then you could request a reasonable accommodation: the ability to work from home and/or not come into work.
Sixth, even if you are not covered by the Act, if you expect that you have Coronavirus, you may qualify for unpaid leave under the Family Medical Leave Act (“FMLA”). The FMLA allows covered employees up to 180 days of unpaid leave to care for themselves or a family member in a covered illness.
What if I have Coronavirus or suspect that I have Coronavirus?
If you have coronavirus, you have a few options:
As a preliminary matter, you should not physically go into work until your time of self-quarantine has expired.
Further, you have a few additional options:
First, you should use employer-provided sick leave and/or vacation time if you have it.
Second, if you do not have employer-provided sick leave and/or vacation time, you should see if you qualify for mandatory sick leave and/or vacation. For example, if you work for a company with less than 500 employees, you are entitled, under federal law, to two weeks of paid sick leave if you have coronavirus or symptoms of coronavirus.
Third, if you cannot get paid or sick leave time, and you need to take off work for a couple weeks, you should apply for unemployment benefits, as you are likely eligible.
Are you legally entitled to sick leave?
Generally yes, if you work for a company with less than 500 employees.
That being said, many (but not all) companies with more than 500 employees provide sick leave, and I hope yours does. But if you work for an employer with more than 500 employees, mandatory sick leave is not required currently in the United States.
If my child’s school is closed, what should I do?
You should see if you qualify for Emergency FMLA under the Families First Coronavirus Response Act (the “Act”) (see above). If you qualify, your child’s school is closed, and you cannot work due to this closure, you are entitled to up to 12 weeks of Emergency FMLA leave, and 10 of weeks will be paid at 2/3 of your current pay (up to $511 per day).
If you do not qualify under the Families First Coronavirus Response Act, then the company has no legal obligation to allow you to take time off of work to allow you to take care of your child.
Can you decide not to attend meetings?
Depends, and there a few options for you.
First, you should check to see if you are eligible under the Families First Coronavirus Response Act (the “Act”) (see above). If you are, then you are able to take Emergency FMLA leave to care for a child, or you are able to take up to two weeks of paid sick leave to treat yourself for coronavirus or coronavirus-type symptoms, or to care for a family member. If any of these apply, yes, you could conceivably not attend a meeting if any of these reasons apply.
Second, you should see if you are covered under Colorado leave for sick leave (see above).
Third, you can see if you have accrued vacation time or sick leave provided by your employer, and see if you can use that to not attend the meeting.
Absent sick leave or vacation pay, you have no legal right to simply miss a meeting, even if the meeting may cause you to come into close contact with others. You would need to discuss with your employer what options will be available to avoid community transmission and keep everyone safe and healthy. Simply deciding not to attend meetings without giving proper notice or checking with your manager is not protected by the law.
If you are sick, do you HAVE to stay home, if you do not want to?
Yes. Pursuant to the Amended Public Health Order 20-24 states, “People at high risk of severe illness from COVID-19 and people who are sick, however, must not leave their Residence except as necessary to receive medical care.” The order further states, “Failure to comply with this order could result in penalties including a fine of up to one thousand (1,000) dollars and imprisonment in the county jail for up to one year, pursuant to 25-1-114, C.R.S.”
If an employer closes down an office because of Coronavirus, am I legally entitled to work from home?
Unfortunately, for most at-will employees, the answer is “no.”
If an employer closes down an office because of Coronavirus, does the employer have to pay me?
Probably not. There may be some employees covered by a union or a collective bargaining agreement. But for most employees, if you are not working for the employer, the employer does not have to pay you.
It is possible that a larger company may have to provide 60 days’ notice before your termination, but that is unlikely. The federal Worker Adjustment and Retraining Notification Act (WARN) requires companies with more than 100 employees to provide 60-days’ notice before engaging in a mass layoff or shutdown of an office. But a company does not have abide by the WARN requirements if the (1) the layoff is less than 6 months’; (2) the layoffs or closure is a result of a “natural disaster”; or the closure or layoff resulting from “business circumstances that were not reasonably foreseeable.” Although this issue has not been litigated, it is likely that one of these exceptions would likely apply as a result of the coronavirus pandemic.
If an employer closes down an office or business because of Coronavirus, can I use sick leave to get paid?
No, there is currently no requirement that demands this at this time.
Can an employer fire me because of the Coronavirus pandemic?
Sadly, the answer is probably “yes.” An employer cannot fire you for an illegal reason (retaliation, discrimination etc.), but firing you because of an economic downturn as a result of Coronavirus would generally not be considered illegal.
Can an employer put me on a furlough because of the Coronavirus pandemic?
Sadly, the answer is probably “yes.” An employer cannot furlough you for an illegal reason (retaliation, discrimination etc.), but putting you on a furlough because of an economic downturn as a result of Coronavirus would generally not be considered illegal.
What is the difference between a furlough and a termination?
In a furlough, you would still get employee benefits. In a termination, you would not.
Can I get unemployment benefits if I am furloughed?
Yes.
Can my employer close down the office and require me to work from home?
Probably. As a condition of employment, the employer can require you to work in different locations, even at your home, if that is what the employer wishes to insist on.
Can my employer require me to leave work if my employer suspects that I have been exposed to COVID-19?
Yes.
Can I stay home if I am feeling a little freaked out, and I don’t want to be around large groups?
Unless you are using sick leave that your employer has provided you, or sick leave that you are legally entitled to receive from the Families First Coronavirus Response Act (see above to see if you and your company are covered), the answer is “no.” Absent sick leave, you have no legal right not to come into work, even though it may be the wise and prudent course of action.
If I get laid off as a result of Coronavirus, am I entitled to unemployment?
Yes, assuming you meet the other qualifications (e.g., worked for more than 6 months, worked a certain number of hours in the previous year etc.).
If I have to miss work because there is a concern that I have Coronavirus, can I get unemployment?
Again, yes.
If I have to miss work because I am immuno-compromised, can I get unemployment benefits?
Again, yes.
I’m an hourly-paid employee. If my employer closes down, how many hours does my employer have to pay me for?
Only for the hours that you’ve worked.
Can my employer ask me if I am experiencing COVID symptoms before letting me work at the office?
Yes. Although, if you have COVID-19, or similar symptoms, your employer must keep this information confidential from others.
Can your employer require you to take your temperature before coming into work?
Yes. Although this is considered a “medical exam” under the American with Disabilities Act, the EEOC recently issued guidelines specifically allowing your employer to take your temperature prior to you entering the workplace.
If you were sick, can your employer require you to present a doctor’s note showing that you are now healthy?
Yes. Based on recent EEOC guidelines, this is specifically allowed.
Can you take sick leave (and apply for unemployment) while you are furloughed?
Generally speaking, if you are receiving paid leave or paid sick leave, you cannot obtain both the paid sick leave and the unemployment benefits. That being said, if this is your situation, you should still apply as the requirements for unemployment are changing rapidly.
Can someone get an accommodation for someone that has a family member who is immuno-compromised?
Probably not. Although you can get an accommodation if you have a disability, there is no law allowing you to get an accommodation if a family member or friend is immune-compromised.
Am I entitled to unemployment benefits?
This depends on the state. Further even based on the rules it is difficult to tell. The reason is because every state has significant discretion on who will get unemployment benefits and who will not, and it is hard to tell how strict or relaxed each state will be with their requirements. For this reason, if you have lost work or hours, we encourage you to apply for unemployment benefits.
That being said, the basic rules are as follows:
- You are generally entitled to unemployment if you are unemployed or furloughed through no fault of your own (e.g., no misconduct on your part). You are sometimes entitled to unemployment if you lose a part-time job, you lose one of your jobs (e.g., you have two jobs, and you lose), or your hours are reduced.
- You are also entitled to unemployment if you cannot work due to the coronavirus. This will often include situations where you are quarantined or where you are caring for a family member suffering from the coronavirus or coronavirus-like symptoms. Also, if you cannot work because you are staying home to take care of a child as a result of a school closure, you may be entitled to unemployment benefits.
- You are generally not entitled to unemployment if you decide to stay home because you are nervous about contracting the coronavirus.
- If you are an independent contractor, or gig worker, you are generally entitled to unemployment if you have lost income as a result of the coronavirus pandemic.
- If you get unemployment benefits, you will get, every week, (1) an amount of unemployment benefits determined by your state based on how much you normally earned plus (2) $600. The $600 extra benefit, however, will not apply after July 31, 2020. You will be entitled to 39 weeks of unemployment benefits in most states, although some states (Idaho, Missouri, Arkansas, Alabama, Florida, South Carolina, and North Carolina), you will be entitled to less than 39 weeks.
What occurs if my business is not applying social distancing guidelines or not properly cleaning?
If you work for an essential business, and your employer is not abiding by social distancing guidelines, or not properly cleaning, you have a few, but unfortunately, limited options. As a preliminary matter, you should note that there are few specific laws that require or mandate that employers apply social distancing guidelines (or properly clean) at the workplace.
But first, you can contact your employer to emphasize that it needs to abide by the law, and hope that your employer will follow the necessary steps.
Second, you can report your employer to your state’s attorney general’s office.
Third, you can see if you can use your vacation time and/or leave time to avoid going into work.
Fourth, you can report the situation to OSHA, although they have merely submitted “guidelines” for employers, rather than strict requirements. https://www.osha.gov/Publications/OSHA3990.pdf
Do I have to go into work if someone at work has COVID or COVID-like symptoms?
If you work for an essential business, and someone has COVID-19 or symptoms then, again, you have limited options. As a preliminary matter, you should note that there are few specific laws that require or mandate employers to take a certain action if someone has coronavirus or coronavirus-like symptoms.
But first, you should contact your employer to emphasize that it needs to take the necessary precautions to ensure that everyone is safe at the workplace. We hope that your employer will follow the most recent guidance of what to do (e.g., send the ill person home etc.) in this situation.
Second, you can see if you can use your vacation time and/or leave time to avoid going into work.
Third, you can report the situation to OSHA, although they have merely submitted “guidelines” for employers, rather than strict requirements. https://www.osha.gov/Publications/OSHA3990.pdf
If I work for an essential business, do I have to go into work if I am immunocompromised or I live with someone who is immunocompromised?
This is a tough situation, and there are no clear rules that protect people here.
That being said, there are a few options that you have:
First, you should double check to see if your employer is an essential business. If it is not, then you should talk to your employer to see if they will allow everyone to work from home (if possible).
Second, if you have a child who is home from school as a result of a school closure, then, if you work for an employer with less than 500 employees, you are likely eligible for 12 weeks off under the Families First Coronavirus Response Act (see details below).
Third, if you have a disability that makes you immunocompromised, then you could ask for a reasonable accommodation, a reasonable accommodation being that you need to stay home to work.
Fourth, you can see if you are entitled to paid leave and/or vacation, either under a state or federal law, or based on the employer’s policy.
Fifth, you can see if you qualify for unpaid leave under the Family Medical Leave Act. If you or a family member have coronavirus, or similar symptoms, you may qualify for unpaid leave. The FMLA allows covered employees up to 12 weeks of unpaid leave to care for themselves or a family member in a covered illness.
That being said, if none of these situations apply, you are at risk of being terminated (and not being able to collect unemployment) if you do not go into work.
Additional Resources
United States Department of Labor, COVID-19 or Other Public Health Emergencies and the Fair Labor Standards Act Questions and Answers, March 2020, https://www.dol.gov/agencies/whd/flsa/pandemic (last visited March 11, 2020).
United States Department of Labor, COVID-19 or Other Public Health Emergencies and the Family and Medical Leave Act Questions and Answers, March 2020, https://www.dol.gov/agencies/whd/fmla/pandemic (last visited March 11, 2020).
United States Department of Labor, Division of Federal Employees (DFEC) Information on FECA Coverage for Coronavirus Disease – 2019/COVID-19, https://www.dol.gov/owcp/dfec/InfoFECACoverageCoronavirus.htm (last visited March 11, 2020).
Colorado HELP Rules, https://www.colorado.gov/pacific/cdle/colorado-health-emergency-leave-pay-%E2%80%9Ccolorado-help%E2%80%9D-rules
Colorado Public Health & Executive Orders, https://covid19.colorado.gov/public-health-executive-orders-explained
Unemployment Insurance (in Colorado), https://www.colorado.gov/pacific/cdle/unemployment
