COVID-19 and Employment Law Practices – Q&A with Angela Walker

COVID-19 and Employment Law Practices – Q&A with Angela Walker

Attorney Angela Walker on COVID-19, advising employees, and the practice of law. This article was originally prepared for the Institute for Continuing Legal Education March 27, 2020.  The original post can be found here.

Angela Walker is a founding partner at Blanchard & Walker PLLC. Angela handles severance negotiations and career strategies for her clients. She has extensive experience with equal pay, sexual harassment, pregnancy discrimination, and disability rights cases. Here, Angela shares some of her thoughts on practicing during this time, as well as her analysis of some of the biggest issues facing employees.

How is COVID-19 impacting your practice right now? How is your office handling meetings?

As of last week, we moved everyone off-site, and we have switched over to doing phone and video consults. Fortunately, our firm already had the technology in place for remote work—and had done various test runs to make sure everyone knew how to use it—before the pandemic hit. Even so, it was our first experience of everyone working remotely all at once. We are working out the kinks as we go. The biggest problem we have not yet solved is how to handle paper mail and other deliveries without anyone on-site to accept them while the physical office is closed.

We are doing a group video chat each morning to talk about the plan for the day. In the absence of typical in-person interactions, it has been helpful to have a better sense of what everyone is working on and to troubleshoot any problems that seem to be getting in the way.

Which clients are contacting you most at this time?

I represent a lot of physicians and health care workers, and they are reaching out in higher numbers right now. I am hearing from employees across many different sectors who are concerned about potential COVID-19 exposure in the workplace, including those who have family members who are more vulnerable to severe complications based on preexisting health conditions.

Our firm has gotten a lot of questions about the new unemployment expansion, medical leave options, and telecommuting rights. We are reviewing severance offers and vetting termination claims as some employers have already begun taking steps to reduce the size of their workforces. This week, we also started receiving calls from folks who disagree with their employer’s classification under Governor Whitmer’s March 23, 2020, executive order—people who are being told they have to report to work because they are critical infrastructure workers even though they do not think their jobs are necessary to protect or sustain life.

What is the most important thing for people to know about Whitmer’s executive order regarding unemployment insurance?

On March 16, 2020, Governor Whitmer signed Executive Order 2020-10 temporarily expanding Michigan unemployment benefits in response to the COVID-19 health crisis. This means employees are now eligible for unemployment benefits if they have to stop working for any of the following reasons:

  • They are immunocompromised.
  • They have symptoms of COVID-19.
  • They have had contact in the last 14 days with someone with a confirmed diagnosis of COVID-19.
  • They cannot work because they must care for someone with a confirmed diagnosis of COVID-19.
  • They have family care responsibilities as a result of a government directive.

Other highlights include the following:

  •  Deadlines to apply for benefits are extended, and an application is timely if it is filed within 28 days of the last day worked.
  • The number of weeks for which individuals can collect unemployment benefits is extended from 20 weeks to 26 weeks.
  • Workers no longer have to register for benefits in person.
  • Workers no longer have to fulfill the search-for-work requirements.
  • Employers will not be charged for their portion of unemployment benefits if their employees become unemployed because of an executive order requiring them to close or limit their operations.

What advice are you giving to employees concerned about COVID-19 exposure at work?

We are advising employees that they have the right to request reasonable accommodations under the Americans with Disabilities Act (ADA) or the Michigan Persons with Disabilities Civil Rights Act (PDCRA) if they are vulnerable to complications from COVID-19 due to a preexisting health condition. Reasonable accommodation in this context may include working from home; access to masks, gloves, or other protective equipment; isolation or “social distancing” within the workplace; time off from work; or even job reassignments.

Employees who work for companies with 50 or more employees may also be entitled to up to 12 weeks of protected time off under the Family and Medical Leave Act (FMLA) if they are unable to work due to a serious health condition.

Furthermore, employees have a right to be free of retaliation for raising health and safety concerns under Section 11(c) the Occupational Health and Safety Act (OSHA). In some situations, this may include protection for speaking up about their employer’s failure to take proper steps to protect them from COVID-19 exposure.

What is covered under the Families First Coronavirus Response Act?

The Families First Coronavirus Response Act (FFCRA) has temporarily expanded paid leave rights in two important ways. First, the FFCRA provides for a paid sick leave benefit for certain workers affected by the COVID-19 outbreak, including those who are experiencing COVID-19 symptoms and those who are unable to work because of a quarantine or isolation order. Second, the FFCRA provides for a paid caregiver leave benefit for parents caring for minor children during school closures related to COVID-19.

Under the FFCRA, full-time employees who qualify are eligible for up to 80 hours of paid leave. A part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period. The sick leave benefit is paid at the employee’s regular rate of pay (capped at $511 per day or $5,110 in the aggregate). The caregiver leave benefit is paid at two-thirds of the employee’s regular rate (capped at $200 per day or $2,000 in the aggregate).

For those who have been employed more than 30 days before the commencement of the leave, the FFCRA provides an additional 10 weeks of paid caregiver leave at two-thirds of the employee’s regular rate of pay. This 10-week extension of benefits applies only to situations in which an employee is unable to work due to a bona fide need for leave to care for a child whose school or childcare provider is closed or unavailable for reasons related to COVID-19.

Significantly, the FFCRA applies only to employers with fewer than 500 employees, and it applies only to leave taken between April 1, 2020, and December 31, 2020. In addition, all covered employers providing paid leave for their employees under the FFCRA qualify for dollar-for-dollar reimbursement in tax credits for wages paid. Employers may be able to require telework in lieu of paid leave if telework is feasible.