Employee Rights During COVID 19
Massachusetts and federal lawmakers have been working over the past several weeks to pass relief packages for businesses and individuals impacted by COVID 19. Between the individual stimulus checks, emergency relief for small businesses, and expanded unemployment benefits, the idea is to provide everyone a cushion of financial safety to get through this crisis.
Questions remain, however, about how all of this actually works for employees in Massachusetts. What happens if you or a family member gets sick? Can you stay home if you are not sick but worried about exposure? What safety protection does your employer have to provide if you are going to work?
Questions remain, however, about how all of this actually works for employees in Massachusetts. What happens if you or a family member gets sick? Can you stay home if you are not sick but worried about exposure? What safety protection does your employer have to provide if you are going to work?
Sick Time and Family Medical LeaveThe Families First Coronavirus Relief Act ("FFCRA") was passed in mid- March and provides important protections for workers who need time off due to illness or quarantine. In brief, your employer must allow up to two weeks' paid sick time if you become ill, are subject to quarantine, have been advised to self-quarantine by a medical professional, are caring for a sick family member, or need to stay home to care for a child whose school is closed.
If you need to miss work for any of the above reasons, you are entitled to family and medical leave for up to 12 weeks, with pay for 2/3 your salary up to a cap of $10,000. This leave begins after your paid sick leave, and can be taken for the reasons above. In addition, you are entitled to up to five days of sick leave under the Massachusetts Earned Sick Time Law. This leave must be paid if your employer has 11 or more employees. Massachusetts sick leave applies if you are ill, seeking medical care for yourself or a family member, or taking care of a family member who is ill. There is no explicit reference to COVID 19 or self-quarantine in the Massachusetts law, but most of the time a leave that is covered by the FFCRA will also be covered by the Massachusetts sick time law. You do not, however, need to use up these days in order to use the FFCRA time. Whether you take time under the Massachusetts Sick Time Law, the sick time provisions of the FFCRA, or the emergency FMLA, your employer is not allowed to fire you or otherwise take action against you in retaliation for using that time. When Can You Stay Home From WorkUnder ordinary circumstances, your employer has a right to expect you to come to work unless you are sick or otherwise excused. So long as the employer complies with all hours limitations and break requirements of the wage and hour laws, you can be fired or disciplined for not meeting the employer's attendance expectations.
In the current situation, the rules are a little less clear. If your job is in a business that has been deemed essential under Governor Baker's orders, you probably are expected to report to work unless you meet one of the criteria for FFCRA sick time or emergency FMLA. Remember, though, that one of the qualifying reasons for leave under the FFCRA is if you have been advised by a medical professional to self quarantine. This means if you have a particular medical reason to be concerned about exposure to coronavirus (i.e., age, existing medical condition, ongoing treatment that suppresses your immune system), you may want to speak with your doctor about a recommendation to self-quarantine. If your job is not in an "essential business," it may be unlawful for your employer to take action against you for declining to report to work. This is not spelled out in any of the COVID 19 relief legislation. However, there is a catch-all theory under Massachusetts law that protects at will employees from termination in violation of public policy. Put simply, this means you should not be fired for either refusing to do something illegal or doing something that the law requires. Examples in past practice include refusing to participate in illegal practices, testifying truthfully under subpoena, or cooperating with government investigations. In the current situation, the Governor has ordered non-essential businesses to close. The order allows for non-essential businesses to continue operating if work can be done remotely, but explicitly disallows ongoing physical operations. If you are required to report to work at a physical location of a non-essential business, your employer is violating the Governor's order. You, in turn, are potentially violating that order by continuing to interact with co-workers, customers, and members of the public. Whether a termination for refusing to comply would qualify as wrongful termination under the common law has yet to be tested in the courts. If you are in that situation, however, you may want to consult with an employment lawyer about your options. |
Need Help With an Employment Law Issue?Unemployment for Workers Affected by Coronavirus
Update: Massachusetts Unemployment Benefits During COVID 19 Summary of Currently Available Coronavirus Relief Programs Tales From the Front: COVID 19 and Your Small Business Links to Massachusetts Employment Law Resources 
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Employer Obligations for Employee Safety
Employers are responsible for providing a safe work environment. When it comes to risks we are familiar with, there are detailed requirements administered by the Occupational Safety and Health Administration ("OSHA"). Generally, these standards have not addressed transmission of infectious diseases except in health care environments or other workplaces with similar specific risks.
OSHA has issued guidance for employers with respect to COVID 19. For workers in what OSHA considers low risk for exposure, it is not recommended or required that the employer provide personal protective equipment ("PPE") such as masks or gloves.
Workers with medium exposure include people working in schools, high population environments, and high-volume retail where there is community transmission of the virus. OSHA's guidance states that these workers "may need to" wear some combination of masks, gloves, or other protective clothing. OSHA states that it is rare that workers in this category would need to wear respirators or N95 masks.
OSHA does make much more specific recommendations, including PPE and availability of sanitizers, for workers in high and very high risks jobs, such as healthcare and mortuary services.
If your job involves interaction with the public and you are concerned about exposure, you should feel free to ask your employer about the availability of PPE or implementation of other measures to protect you and the public. Most employers are willing to engage in that dialogue as a simple matter of protecting their workforce.
OSHA has issued guidance for employers with respect to COVID 19. For workers in what OSHA considers low risk for exposure, it is not recommended or required that the employer provide personal protective equipment ("PPE") such as masks or gloves.
Workers with medium exposure include people working in schools, high population environments, and high-volume retail where there is community transmission of the virus. OSHA's guidance states that these workers "may need to" wear some combination of masks, gloves, or other protective clothing. OSHA states that it is rare that workers in this category would need to wear respirators or N95 masks.
OSHA does make much more specific recommendations, including PPE and availability of sanitizers, for workers in high and very high risks jobs, such as healthcare and mortuary services.
If your job involves interaction with the public and you are concerned about exposure, you should feel free to ask your employer about the availability of PPE or implementation of other measures to protect you and the public. Most employers are willing to engage in that dialogue as a simple matter of protecting their workforce.
Employee Rights on Layoff or Furlough
If you are laid off, furloughed, or terminated, you have the same rights as you did before the COVID 19 outbreak. You have a right to be paid all earned wages and unused vacation on the day of termination. If you think you were singled out for termination for an unlawful reason, you can consult an attorney about whether that termination might have been wrongful. And, in most cases, you should be eligible to collect unemployment benefits.
Your employer has the right to close down operations and lay people off. They do not have the right to withhold payment for wages already earned or unused vacation time. This is where an important piece of the wage and hour laws comes in to play. Even if the business itself is closed and has no assets, officers with management of the company (in small businesses, often the same person or people as the owners of the company) are personally liable for unpaid wages.
This may seem harsh, but it is designed to protect workers and prevent unscrupulous business owners from shuttering a company and moving on to the next endeavor without paying their employees earned wages.
If your employer has closed and you are still owed wages, you should consult with an employment lawyer to understand your options. In most cases you have 2-3 years to bring a wage and hour claim under the law. You may, however, want to act more quickly than that to make sure you have the ability as a practical matter to collect what is owed to you.
Your employer has the right to close down operations and lay people off. They do not have the right to withhold payment for wages already earned or unused vacation time. This is where an important piece of the wage and hour laws comes in to play. Even if the business itself is closed and has no assets, officers with management of the company (in small businesses, often the same person or people as the owners of the company) are personally liable for unpaid wages.
This may seem harsh, but it is designed to protect workers and prevent unscrupulous business owners from shuttering a company and moving on to the next endeavor without paying their employees earned wages.
If your employer has closed and you are still owed wages, you should consult with an employment lawyer to understand your options. In most cases you have 2-3 years to bring a wage and hour claim under the law. You may, however, want to act more quickly than that to make sure you have the ability as a practical matter to collect what is owed to you.
How Can We Help?
We can help answer your specific questions about employee rights during the COVID-19 crisis. We routinely conduct consultations and meetings by phone or video-conference, so you can reach out without increasing your exposure to the virus. You can use the button below to schedule a call back from a member of our team, give us a call at 781-784-2322, or fill out our web form to let us know a little more about your situation.
