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Employee Rights Update: COVID-19


This article regarding employee rights during COVID-19 discusses the FFCRA, which expired in December of 2020. Please visit our Employee Rights page for more information.

As states and cities have enacted “stay-at-home” and “shelter-in-place” orders in response to the COVID-19 pandemic, employees are facing difficult times. Generally speaking, since most employment relationships are “at-will” a layoff, furlough, or prospective pay reduction due to the economic impact COVID-19 has had on a business is not illegal.

However, the current public health emergency does not relieve employers of their obligation to comply with state and federal laws. These laws protect employees from illegal discrimination and ensure that employees receive their full wages. In fact, effective April 1, 2020, a new federal law called the Families First Coronavirus Response Act requires certain employers to provide paid leave and sick time for COVID-19 related reasons.

Employer Obligations Under The Families First Coronavirus Response Act (FFCRA)

Under the Coronavirus relief legislation, employers with fewer than 500 employees must provide 12 weeks of FMLA (Family Medical Leave Act) leave for childcare reasons related to COVID19. The employer must disperse FMLA leave after the first 10 days, at two-thirds of an employee’s wage, up to $200 per day. Employers must also provide 80 hours of paid sick time for specified reasons related to COVID-19. The Department of Labor has also issued its own guidance on the FFCRA. The law requires employers to display or distribute the following poster, informing employees of their rights under the FFCRA.

Employers may not discharge, discipline, or otherwise discriminate against any employee who lawfully takes paid sick leave or expanded family and medical leave under the FFCRA, files a complaint, or institutes a proceeding under or related to this Act.  If you believe that your employer is improperly refusing you paid sick or FMLA leave, you may have a claim.

Employee Rights under the Age Discrimination in Employment Act (ADEA)

The Age Discrimination in Employment Act (ADEA) prohibits employers from discriminating against older employees without “bona fide occupational qualification”. Despite evidence suggesting that older persons are more at risk to COVID-19, an employer still cannot discriminate on this basis. Similarly, a blanket policy that prohibits employees over a certain age from working would likely be unlawful.

Employee Rights under the Americans With Disabilities Act

Similar to the COVID-19 risks posed to older persons, persons with pre-existing conditions and disabilities may in some instances be at higher risk of complications if they are infected by the virus. Still, despite this legitimate concern, it would remain unlawful under the ADA for an employer to adopt a policy prohibiting persons from working because the employer knows that employee (or prospective employee) has a disability or they perceive that person has a disability under the act. As has been the case prior to the COVID-19 outbreak, telework may be a “reasonable accommodation” under the ADA.

The ADA also obligates employers to protect and keep confidential certain employee medical information. This includes information that a specific employee has been diagnosed with COVID-19 or is exhibiting symptoms consistent with a diagnosis.

Employee Rights to Unpaid Wages

Wage and Hour laws continue to require employers to compensate employees at an agreed upon rate. An employer may reduce wages and other forms of pay to account for the economic impact of the COVID-19 outbreak. However, only prospectively (i.e. going forward after the employer provided the employee notice of the reduction). Under the North Carolina Wage and Hour Act, wages owed to an employee are due on the regular payday. If you have been terminated or furloughed, your employer is still required to pay you any unpaid wages and other benefits.
This includes accrued Paid Time Off (PTO), that the employer has a policy and practice of paying employees upon termination.  Contact the Wage and Hour attorneys at Maginnis Howard if you believe your employer is illegally withholding your wages.