COVID-19 FAQs

• If I become sick with the coronavirus, am I allowed to take time off from work?
• If I miss time at work because I am sick with the coronavirus, is my employer required to pay me for my time off from work?
• Can my employer fire me because I contracted the coronavirus?
• Do I have the right to work from home if I’m uncomfortable reporting to my job, even if I am not sick? May I work from home to care for my children who are at home because of school or childcare closings?
• Can my employer require me to work from home if I don’t want to? Can my employer prohibit me from traveling for personal or business reasons?
• If my employer requires me to work from home, am I entitled to be paid for that time?
• Is my employer required to pay for the cost of me setting up a home office?
• What happens if my employer lays me off or cuts my hours because of the coronavirus?
• Can an employer renege upon a fully executed severance agreement or deny payment to an employee based on economic changes at the company? Does it matter if the employer has an ERISA plan in place that covers severance?
• If my employment is terminated or I am laid off, can I get more time to exercise vested stock options?

Yes. And that is also true if one of your immediate family members contracts the virus.

The federal Family & Medical Leave Act (FMLA) allows a qualified employee to take up to 12 weeks of unpaid leave within a 12-month period if they or an immediate family member requires care for a “serious health condition.” The law also entitles a qualified employee to continued health insurance benefits and requires an employer to offer to the qualified employee the same or equivalent position upon return to work. To qualify, an employee must have one year of service with his/her employer and have worked at least 1,250 hours, and whose employer has at least 50 employees in a 75-mile radius.

Maybe, maybe not.  The answer depends on a number of factors, principally your employer’s policy and the size of the company you work for.

Some employers provide paid leave for those who are forced to take time off in connection with an illness. For those employers, the company policy generally will control the terms of the paid leave. Also, some states and cities have laws that provide employees with access to paid sick leave.

The Families First Coronavirus Response Act (FFCRA) allows employees who work for employers of fewer than 500 employees to take up to 80 hours of paid emergency sick leave. An employee may take paid emergency sick leave if he or she:

1. is subject to a quarantine or isolation order or is caring for someone who is subject to a quarantine or self-isolation order;
2. has been advised by a health care provider to self-quarantine due to coronavirus concerns or caring for someone who is advised to self-quarantine;
3. is experiencing symptoms of coronavirus and is seeking a medical diagnosis;
4. is caring for his or her child if, because of coronavirus protections, their school or day care has been closed or their childcare provider is unavailable; or
5. is experiencing similar conditions, as specified by the Secretary of Health and Human Services.

The rate of pay varies depending on the circumstances:

Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to federal, state, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or

Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (pursuant to federal, state, or local government order or advice of a health care provider), or care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor.

These payments are subject to limits on maximum benefits and more information is available at the U.S. Department of Labor’s website by clicking HERE.

Local and state laws may provide even greater protection for employees.

No. The FMLA protects qualified individuals absent from work because of a serious health condition. Similarly, the Americans with Disabilities Act (ADA) prohibits discrimination against individuals with a disability. In certain circumstances, an employee who has an underlying condition exacerbated by the coronavirus (for instance, asthma or a heart condition) may be considered disabled.

The ADA defines a disability as a physical or mental impairment that substantially limits one or more major life activities, a history or record of such an impairment, or a perception by others of such an impairment. Besides prohibiting discrimination against people with disabilities, the ADA requires employers to provide reasonable accommodations for such individuals.

Local and state laws may provide even greater protections for employees.

Generally, there is no legal right to telecommute. If an underlying disability places you at high risk for coronavirus, however, you may have the right under the ADA to telecommute as an accommodation, depending on whether working from home is reasonable under the circumstances.

The FFCRA permits employees to take emergency sick leave to care for a child whose school or day care has closed, or where childcare is otherwise unavailable because of coronavirus protections. In addition, employees may be entitled to up to an additional 10 weeks of paid leave at two-thirds the employee’s regular rate of pay if an employee is unable to work due to bona fide child care need related to COVID-19. 

These payments are subject to limits on maximum benefits and more information is available at the U.S. Department of Labor’s website by clicking HERE.

Employers generally have the right to set the terms and conditions of employment, which includes work location. Thus, an employer can require employees to work from home as a result of a business need or for a health and safety reason.

But an employer may not require certain people to work from home because of a perceived or actual disability if it would operate as an adverse action based on a disability. For example, if the effect of working from home is a demotion or lower pay for only certain individuals, those individuals may be protected by federal, state, or local statutes that prohibit discrimination based on a disability.

Your employer can prohibit you from traveling for business reasons because work-related travel is considered a condition of employment. Your employer cannot prevent you from traveling for personal reasons on your own time.

Yes. Generally, if you are a salaried employee and you work any portion of the week, you must be paid your regular weekly pay. Hourly employees who work from home are entitled to be paid for all hours worked, including overtime hours.

Local and state laws may provide even greater protections for employees.

It depends on what state you are employed in and your rate of pay. If the expenses you incur in setting up your home office causes your weekly pay to drop below the minimum wage, you may have a claim under the federal Fair Labor Standards Act (FLSA) and some state wage and hour laws.

There are specific laws that protect employees from mass layoffs. For example, under the federal Worker Adjustment and Retraining Notification (WARN) Act, if a certain number of employees are affected, companies generally must give affected employees 60-days advanced written notice of the mass layoff, worksite closing, or plant closing.

Several states and cities require an employer to provide schedules in advance and must pay the workers when they take away or add shifts. Some laws also require extra pay when employers require workers to work split shifts, and if you are laid off or have your hours reduced, you may be entitled to unemployment benefits, which vary by jurisdiction.

If your employer offers you a severance agreement, it is important to consult with an attorney about what rights you may have and what rights you may be giving up by signing the agreement.

Local and state laws may provide even greater protections for employees.

Generally, a contractual promise to pay is enforceable, and an employer would be in breach of contract if it if reneges on that promise, absent a material breach by the employee. If an employer fails to honor its obligations under a severance agreement, the employee may be able to sue for breach of contract.

If a company goes bankrupt and cannot pay agreed-upon severance benefits, the affected employee may be able to file a claim in bankruptcy court. In any event, with respect to plant closings and mass layoffs, employees may be entitled to relief under federal and state laws, like the WARN Act (see previous FAQ).

Whether the deadline to exercise your vested stock options can be changed depends on several factors, such as whether you have ISOs or NSOs, the expiration date of your options, and how the relevant plan is drafted. Sometimes, the deadline can be extended by asking the employer to provide working notice instead of severance, by entering into a contractor arrangement with the company, or by simply extending the exercise period.