written by: Andrew P. Dunning, Esq.
Are you required to go to work during the novel Coronavirus pandemic?
Employee directives, rights, and obligations have presented moving targets during the outbreak. Nevada employers with fewer than 50 employees have more discretion in whether to offer paid or unpaid leave, and how to implement their specific policies. For employees who have contracted COVID-19 or reasonably believe they have COVID-19, they may qualify for leave under the Family Medical Leave Act (“FMLA”). Under the FMLA, covered employees may take up to 180 days of protected, unpaid leave to care for themselves or their family members afflicted by a covered illness. Under the FMLA, employers are obligated to return covered employees to the same or equivalent position following their emergency leave.
Are employees entitled to paid leave during the novel Coronavirus pandemic?
While an employee’s access to paid leave during the pandemic and related shutdowns may vary on a case-by-case basis, Nevada employers are ordinarily not required to afford staff paid sick leave. Similarly, employers in the state have no legal obligation to allow staff to take paid leave to care for others, including sick family members and young children during school closures. A March 18, 2020, federal expansion to the FMLA, the Families First Coronavirus Response Act (“FMLA expansion”), allows employees at companies with fewer than 500 employees to take up to 12 weeks of job-protected leave for childcare purposes.
Effective April 2, 2020, the FMLA expansion provides for 10 days of unpaid family care leave, with subsequent paid leave at approximately two-thirds of the ordinary rate of pay (limited to $200.00 per day, or $10,000.00 in total per covered employee).
Additionally, the terms of the Emergency Paid Sick Leave Act (“EPSLA”), also effective April 2, 2020, entitles full-time employees to up to 80 hours of paid sick leave if they are subject to quarantine or symptomatic of COVID-19 (limited to $511 per day, or $5,110 in total per covered employee). EPSLA and the FMLA expansion will remain in effect until at least December 31, 2020.
Can my employer assess me for COVID-19 before allowing me to come to work?
If an employee is apparently symptomatic for the COVID-19 or has previously been diagnosed with the COVID-19, then the employer may require the employee to demonstrate that they are no longer a safety risk before returning to work. Ordinarily, an employer may not require an employee to submit to a temperature check or examination before coming to work. The Americans with Disabilities Act (“ADA”) prohibits employers from requiring examinations unless: (1) the examination is job-related or a business necessity; or (2) the employer reasonably believes the employee presents a “direct threat” to the health or safety of others that cannot be reasonably accommodated. Without objective evidence of a direct threat, the ADA generally prevents employers from asking an employee about their medical condition.
Can I be fired from my position because of the novel Coronavirus pandemic?
For now, the simple answer is “yes.” As with most “at-will” employment jurisdictions, Nevada employees are subject to termination where specific offices and businesses may be closed. While employers may not terminate employees for illegal reasons (like discrimination and retaliation) layoffs relating to the COVID-19 and economic distress are not necessarily unlawful. Circumstances may differ where employees are protected by employment contracts, collective bargaining agreements, or union representation. It is important that an employer distinguishes between an outright termination, or a furlough/leave of absence which would otherwise entitle the employee to benefits and/or prospective employment.
Can my employer require me to work remotely if my office is closed?
Generally, an employer can require its employees to work in an alternative location as a condition of employment. An important distinction is that, although an employee is not entitled to work remotely as a matter of law, an employer can require an employee to continue work remotely following an office closure. As the situation develops, it will be easier for employees to reconcile their employment rights with state and local directives for business closures.
If I get laid off as a result of the novel Coronavirus pandemic, am I entitled to unemployment benefits?
Employees may seek unemployment benefits in the ordinary course if they are terminated due to COVID-19 concerns or resultant economic distress. Similarly, if an employee is quarantined as a result of the pandemic, an immune-deficiency, or because they are susceptible to infection, they remain entitled to unemployment benefits. Furloughed individuals, in addition to those who were laid off, may apply for unemployment benefits. On March 18, 2020, Nevada Governor Steve Sisolak announced that he ordered the State Employment Security Division to waive certain requirements for unemployment benefits, including the seven-day waiting period and the “work search” requirement.
In addition to State directives, certain provisions of the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”) makes it easier for individuals to get unemployment benefits during the novel Coronavirus pandemic. Specifically, the CARES Act adds additional reasons under which employees can file to obtain unemployment benefits, including diagnosis with COVID-19, a household COVID-19 diagnosis, caretaking duties for dependents who are unable to attend school, mandatory quarantines, or business closures relating to the novel Coronavirus pandemic. Notably, the CARES Act entitles eligible filers to receive their ordinary state benefits plus an additional, taxable $600 per week from April 5, 2020, to July 31, 2020. Moreover, the 26-week benefit payout period has been temporarily expanded to 39 weeks.
First-time filers can expect delays in receiving approval for (and disbursement of) their unemployment benefits, as logistic and administrative impediments to CARES Act implementation are resolved.
Do independent contractors or “gig workers” have any recourse during the novel Coronavirus pandemic?
Although independent contracts are generally not afforded the same legal protections as traditional “W-2” employees, the CARES Act allows them to obtain unemployment benefits under certain circumstances. In situations where an independent contractor or self-employed filer is willing to work but is otherwise inhibited by COVID-19 (including the reasons outlined above for employees), they may be eligible for unemployment benefits. Even though independent contractors are not entitled to FMLA leave, the FMLA expansion
If I get laid off as a result of the novel Coronavirus pandemic, am I entitled to any further compensation?
Hourly employees affected by office closures or layoffs remain entitled to compensation for hours worked prior to their termination. Nevada employers may, but are not required to, compensate terminated employees for any unused paid leave available for use by that employee upon separation. Where a terminated employee is rehired within 90 days of separation from the same employer and the separation was not voluntary, any previously unused paid leave hours must be reinstated per NRS 608.0197(1)(i). If an employee is contractually entitled to payment of unused leave hours upon termination, they may initiate an unpaid wage claim with the Nevada Labor Commissioner or file a civil suit to enforce the contract.
Do I have any relief for student loan payments during the novel Coronavirus pandemic?
While an individual’s contractual obligations, including repayment of student loans, remain unchanged during the pandemic, the CARES Act provides a temporary suspension of payments. For certain non-defaulted federal Direct Loans and Federal Family Education Loans, the CARES Act suspends all payments due from March 13, 2020, through September 30, 2020. According to the Department of Education, the suspension is an administrative forbearance during which automatic debit payments are canceled; automatic payments remitted during the applicable timeframe are eligible for refund. Importantly, the newly implemented student loan relief generally do not apply to private loans or Perkins Loans. Individuals making student loan payments should confirm the applicability of the relief terms to their loans and should contact their servicers to ensure compliance with their prospective payment obligations.
What other aid can I expect during the uncertainty of the Coronavirus pandemic?
As many Nevadans are aware, the CARES Act provides for direct money payments to individuals. Each qualifying adult will receive up to $1,200 and $600 for each dependent child under 16. Single adults who earned less than $75,000, and married couples who collectively earn less than $150,000 are eligible for the full payment of $1,200 per individual; higher earners will see a decrease in payment, with single adults earning in excess of $99,000 being ineligible for a federal disbursement. The IRS anticipates payments being distributed on a rolling basis beginning on April 15, 2020, with recent tax filers receiving direct deposits where authorized. Beginning on April 17, 2020, the IRS will provide an online tracking tool to allow individuals to check the status of their payment.
The Department of Labor issued new information regarding newly passed sick leave and family leave legislation. Click here to see the new details.
During this Stay Home 4 Nevada period, the Governor is encouraging other services, including but not limited to legal, business and management consulting, professional services and insurance services to have employees work remotely. Black & LoBello will remain “on-call” 24/7 to answer your emergency legal concerns at no charge. We know you are concerned but we are here for you.
Remember, this too shall pass. In the meantime, stay safe, stay healthy and be NEVADA STRONG!