Refusing To Come To Work
Can an employee refuse to come to work because of fear of infection? Normally not.
Employees are only entitled to refuse to work if they believe they are in imminent danger. Section 13(a) of the Occupational Safety and Health Act (OSHA) defines “imminent danger” to include “any conditions or practices in any place of employment which are such that a danger exists which can reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.” Per OSHA, an imminent danger exists when there is “threat of death or serious physical harm” or “a reasonable expectation that toxic substances or other health hazards are present, and exposure to them will shorten life or cause substantial reduction in physical or mental efficiency.”
OSHA’s general duty clause requires employers to take steps to protect employees from "recognized workplace hazards." OSHA categorizes employee exposure risks into four levels, consisting of "very high," "high," "medium," and "lower" risk. In a "very high" risk employment situation, the employer would be obligated to develop and implement an infectious disease preparedness and response plan and take corresponding, effective infection prevention measures for its employees. Failing that, the employee would be justified in invoking the protest clause and in refusing to work for the employer. That employee should also contact OSHA and file a complaint within 30 days against the employer. You can file a claim at www.osha.gov.
You are also protected from retaliation under the National Labor Relations Act. The NLRA guarantees that you may engage in protected concerted activities (in other words, with other employees.) Generally, ‘‘protected concerted activity’’ is group activity which seeks to modify wages or working conditions. If you are terminated or otherwise retaliated against for this, contact the National Labor Relations Board (504-589-6361.) (Online: www.nlrb.gov)
Time Off for Illness
The Family and Medical Leave Act (FMLA) provides that if your company has 50 or more employees (locally), you may be entitled to up to 12 weeks of UNPAID sick leave or leave for yourself, or to care for a new baby or an ill family member. (Online: www.dol.gov and click “Workers.”) You cannot be fired for taking leave protected by the Act.
Emergency Sick Leave and Pay
The Families First Coronavirus Response Act just passed the Congress and goes into effect on April 1, 2020 and is set to expire on December 31, 2020. It applies to employers with less than 500 employees. Employers with fewer than 50 employees may be exempted from the requirements. Independent contractors are not considered employees for purposes of the 500-employee threshold.
Employers are required to provide paid sick leave and paid Family and Medical Leave to eligible employees who have worked at least 30 days before the impact of coronavirus.
Employers must provide up to 10 business days of paid sick leave. Any scheduled overtime must be included in the calculation. For a full-time employee, 10 business days equals 80 hours. For a part-time employee, the number of hours is equal to the average number of hours that employee works over a typical two-week period.
Employees in quarantine should be paid 100% of their pay up to a maximum of $511 per day, or a total of $5,100 for the 10 day leave period.
Employees who are caring for a quarantined family member or for childcare are allowed 100% of their pay up to a maximum of $200 per day, or a total of $2,000 for the 10-day period.
The bill also expands family and medical leave by giving workers the right to take up to 12 weeks of job-protected leave if the employee or a family member is in quarantine or if their child’s school or childcare is closed due to coronavirus. Employers are required to provide at least two-thirds of the usual pay, up to $200 per day, or a total of $10,000. Those provisions can apply after employees take the two weeks of emergency paid sick leave.
The law provides a “refundable” payroll tax credit for 100% of qualified paid sick leave wages paid by an employer, which can be used against the employer portion of Social Security payroll taxes. There is also a 100% of qualified family leave wages paid by an employer, which is also allowed against the employer portion of Social Security Payroll taxes.
Alabama Unemployment Compensation Benefits
Based on current guidance from the U.S. Department of Labor, the Alabama Department of Labor is modifying existing unemployment compensation rules to allow workers to file a claim for unemployment compensation benefits who are affected in any of the following way:
Those who are quarantined by a medical professional or a government agency,
Those who are laid off or sent home without pay for an extended period by their employer due to COVID-19 concerns,
Those who are diagnosed with COVID-19,
Or, those who are caring for an immediate family member who is diagnosed with COVID-19.
The requirement that a laid-off worker be “able and available” to work while receiving unemployment compensation benefits has been modified for claimants who are affected by COVID-19 in any of the situations listed above. Additionally, claimants will also not have to search for other work provided they take reasonable steps to preserve their ability to come back to that job when the quarantine is lifted, or the illness subsides. The waiting week, which is typically the first week of compensable benefits, will also be waived.
The Federal Government recently passed the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) which outlines several new programs that will be administered by your State’s Unemployment Compensation Program.
Pandemic Unemployment Assistance Program (PUA) provides benefits for eligible individuals who are self-employed, seeking part-time employment, or who otherwise would not qualify for UI benefits under state or federal law. To be eligible, among other requirements, individuals must demonstrate that they are otherwise able to work and available for work within the meaning of applicable state law, except that they are unemployed, partially unemployed, or unable or unavailable to work because of COVID-19 related reasons.
Under the Federal Pandemic Unemployment Compensation (FPUC) program, eligible individuals who are collecting certain UI benefits, including regular unemployment compensation, will receive an additional $600 in federal benefits per week for weeks of unemployment ending on or before July 31, 2020.
Additionally, the Pandemic Emergency Unemployment Compensation (PEUC) program allows those who have exhausted benefits under regular unemployment compensation or other programs to receive up to 13 weeks of additional benefits. States must offer flexibility in meeting PEUC eligibility requirements related to “actively seeking work” if an applicant’s ability to do so is impacted by COVID-19.
Certain criteria and exceptions may apply and are subject to change. Verification of illness or quarantine may be required.
ALABAMA WORKERS CAN FILE FOR UNEMPLOYMENT BENEFITS
ONLINE AT WWW.LABOR.ALABAMA.GOV OR BY CALLING 1-866-234-5382
ONLINE FILING IS ENCOURAGED
Thank you to our volunteer attorney, Henry Brewster, and his staff for preparing this additional information update. This is an evolving situation and we will work with Mr. Brewster to keep this information as up-to-date as possible.
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Posted on Tue, April 14, 2020 by SAVLP