As New Jersey coronavirus cases spread, more and more employers are telling their workers to work from home.
Some companies are stepping up to provide paid sick time to their employees, but what happens if your boss isn’t one of them?
Can you get fired if you miss work because of coronavirus? What laws protect your job if you decide to stay home?
We took these issues to Rosemarie Cipparulo, a labor and employment lawyer and assistant teaching professor in the Rutgers School of Management and Labor Relations.
Q. Can my boss fire me if I stay home from work because of coronavirus?
A. The first issue we have to address here is the Employment-at-Will doctrine. Under that doctrine, an employer can hire, fire, or discipline for any reason or no reason. It also means that an employer can change its policies with no or little notice to employees, provided that the Employee Handbook is not considered a contract.
Most employers' handbooks contain clear and prominent disclaimers that say something like, "This handbook is not a contract" or "You are an employee at will." Further, these handbooks usually include language that warns employees that the employer can change its policies at any time.
If the handbook does not include such a disclaimer, then under New Jersey law, that handbook is a contract and the employer can be held to the terms of that contract. Provided the language of that handbook addresses absences due to contagious illness or quarantine, then the employer may be sued for breach of contract.
When it comes to sick, personal, or vacation leave, most handbooks include the reasons employees can take paid leave, particularly sick leave. But again, employers can change those reasons at any time.
Q. What does my boss need to do to keep employees safe from coronavirus at work?
A. With regard to workers who are sick due to the virus, it is certainly unwise for an employer to require them to come to work.
Additionally, there are Occupational Safety and Health Administration (OSHA) regulations that require employers to provide a workplace that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”
So, if an employer requires a sick employee to come to work, then they may be in violation of OSHA.
Q. What laws protect me from being fired if I stay home because of coronavirus?
A. In both unionized and non-unionized workplaces, employers may be in violation of the Family and Medical Leave Act (FMLA), which provides for 12 weeks of unpaid leave for the workers’ own illness or to take care of an ill family member with a "serious health condition.”
At the state level, the New Jersey Family Leave Act (NJFMLA) provides for paid leave to care for an ill family member. Further, New Jersey now requires all employers to provide at least five days of paid sick leave, depending on the amount of hours an employee works.
It is unclear if that paid time off can be applied to a worker who is quarantined. Additionally, most employers are subject to the New Jersey Law Against Discrimination and/or the Americans with Disabilities Act, which include discrimination based on disability, but it probably does not apply to a quarantined worker who is not ill.
Q. Can my union protect me if I need time off because of coronavirus?
A. Terms and conditions of work in unionized workplaces are defined by the collective bargaining agreements. Most of those agreements include language addressing when and why leaves may be taken.
For example, I have seen many agreements that allow the use of sick or personal leave for the worker's own illness, to take care of an ill child or spouse, and for a worker’s illness or child's illness that is contagious.
Further, most collective bargaining agreements also include "just cause" provisions. This means that the employer must have just cause to discipline or discharge a worker. It seems to me that penalizing an employee for being quarantined could be a violation of the just cause provisions. Further, a reduction in salary due to quarantine may be a violation of the wage provisions of the collective bargaining agreement.
So, the upshot is that in non-unionized work environments, the employer can refuse to pay for sick, personal, or vacation leave if the employee is quarantined or for any other matter. This is just one of the reasons why workers who belong to unions have better terms and conditions of work.
Q. What are companies doing to help their workers?
A. This is rapidly evolving. The State of New Jersey is not penalizing its workforce for COVID-19 related absences. Further, companies such as Walmart, McDonald’s, Trader Joe’s, and Instacart are not penalizing workers for coronavirus issues.
Several companies are providing two weeks of paid leave for those who may have been exposed. Other companies such as Uber and Lyft are offering their drivers “financial assistance” for coronavirus related issues.
Q. What can I do if my boss ignores my rights with coronavirus absences?
A. If a worker believes their employer is discriminating against them for being ill or denying leave under the FMLA or NJFLA , then the worker may file a complaint with the U.S. Equal Employment Opportunity Commission (EEOC) or the New Jersey Division of Civil Rights, or report that matter to OSHA.
Public employees can file complaints under the New Jersey Public Employees Occupational Safety and Health Act (PEOSH).
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