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Employees Returning to Work Following the COVID-19 Shutdown



In March 2020, life quickly ground to a halt due to COVID-19. In addition to the physical and emotional impact COVID-19 has had on many, the United States economy has taken a significant hit as businesses closed for several months, which resulted in furloughs, layoffs, and even permanent closure.

With initial questions still lingering as to employer and employee rights in the midst of COVID-19, the economy has already begun to reopen. However, as employees are able to return to work, new questions are arising as to employer and employee rights. For employers specifically, questions include what can and cannot be said or done with regard to returning workers. For example, if an employee refuses to return to work because of COVID-19, is the employer completely barred from terminating that individual’s employment? Please note this examination is not exhaustive, but addresses two (2) key areas of concern.

Families First Coronavirus Response Act – Eligibility

The Families First Coronavirus Response Act (“FFCRA”), signed into law on March 18, 2020, and effective beginning on April 1, 2020, includes, among other provisions, the Emergency Paid Sick Leave Act (“EPSLA”) and the Emergency Family and Medical Leave Expansion Act (“EFMLEA”), which modified the Family and Medical Leave Act of 1993 (“FMLA”).

Generally, the EPSLA provides paid sick leave to employees when the employer has less than five hundred (500) employees. Under the Act, an employer must provide paid sick leave if an employee requests leave for one of the following reasons: (i) the employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19; (ii) the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; (iii) the employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis; (iv) the employee is caring for an individual who is subject to an order as described in item (i) or has been advised as described in item (ii); (v) the employee is caring for the employee’s child if the school or place of care has been closed, or the child care provider of such child is unavailable due to COVID-19 precautions; or (vi) the employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Under the EFMLEA, an “employer” is any person engaged in commerce or in any industry or activity affecting commerce who employs fewer than five hundred (500) employees. An “employee” is someone who has been employed at least thirty (30) days by the employer and seeks leave under the new leave provision. To qualify for the expanded leave, the employer and employee must meet these threshold requirements. If an employee and employer satisfy these definitions, an employee may take leave if he/she is unable to work or telework because of the need to care for his/her child, who is under the age of eighteen (18), if the school or place of care has been closed, or the childcare provider of such child is unavailable due to COVID-19.

Under both the EPSLA and EFMLEA, an employer that employs less than fifty (50) employees may be exempt from the requirements of the FFCRA relating to leave for care of a child due to lack of other care options if additional requirements are met. However, if the business does not meet the exemption criteria, an employee meets the above eligibility criteria, and the employee
properly requests leave pursuant to the FFCRA, then the employee can take leave. Generally, an employer cannot terminate or otherwise discriminate against an employee that takes such leave or challenges an employer’s action(s) he/she believes is unlawful. However, if the employee does not qualify for any of the leave provided by the FFCRA, the employee is not protected by the Act under those provision and returns to normal employee status. It is crucial that this determination
be made on an individualized basis.

Unemployment Compensation

Unemployment compensation is administered by the state, thus eligibility requirements and guidelines vary depending on the locale. As such, this section will only address the overarching themes of Alabama and federal unemployment compensation law.

Generally, an individual is eligible to receive unemployment compensation if they are (i) able to work; (ii) available for work; (iii) willing to accept suitable work; (iv) actively seeking full time work; and (v) out of work due to no fault of their own. If an individual meets these requirements, then he/she is generally eligible to receive unemployment compensation. Under the Coronavirus
Aid, Relief, and Economic Security Act (“CARES Act”), the federal government expanded unemployment compensation through the following provisions: Pandemic Unemployment Assistance (“PUA”), Federal Pandemic Unemployment Compensation (“FPUC”), and Pandemic Emergency Unemployment Compensation (“PEUC”). Each provision adds various other
requirements to the general individual eligibility requirements above.

All forms of unemployment law frown upon fraud by an individual that applied for and/or received such compensation. Under the CARES Act, fraud occurs when an individual knowingly has made, or caused to be made by another, a false statement or representation of a material fact, or knowingly has failed, or caused another to fail, to disclose a material fact, and as a result of such false statement or representation or of such nondisclosure such individual has received compensation to
which he/she is not entitled. Therefore, as two of the general requirements for receiving unemployment compensation are that the individual be willing to accept suitable work and actively be seeking full time work, employees that refuse to return to job positions they held before COVID-19, because they would rather receive unemployment compensation, should not receive
the same and will have committed fraud if they lied to receive such. Employers that believe fraud has been committed, should report such conduct.

Other Laws

Employers should also remain mindful of their obligations under other Federal and/or state laws. COVID-19, although resulting in the passage of the FFCRA and the CARES Act, did not terminate or otherwise waive many of the duties employers have under other laws. For example, employers remain subject to the Family and Medical Leave Act of 1993 (“FMLA”), the Americans with
Disabilities Act (“ADA”), the Occupational Safety and Health Administration (“OSHA”), the Fair Labor Standards Act (“FLSA”), Title VII of the Civil Rights Act of 1964 (“Title VII”), and Workers’ Compensation laws. This list is not exhaustive, but articulates many of the federal laws that remain in effect even amidst COVID-19.

If you feel your rights have been violated, or if you have any other questions regarding your employment rights, please contact the experienced Birmingham employment law attorneys at Michel | King. You can contact us either online or by calling us at (205) 319-9724. We are here to serve you!

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