Q&A: What are my rights during COVID-19?

By Qusair Mohamedbhai and Iris Halpern

Q: I am considered an essential worker. I have run out of paid sick leave, but now think I have the COVID-19. Can I ask for time off from work? Do I have any right to paid time off?

A: In a nutshell, yes. If you have symptoms of COVID-19, you are entitled to time off. For many workers, that time off has to be paid. In March, the state Division of Labor enacted the Colorado Health Emergency Leave with Pay Rules (Colorado HELP). These regulations temporarily require companies to provide up to four days of paid medical leave for individuals who need to self-isolate or exhibit symptoms of COVID-19. These regulations cover employers in leisure and hospitality, retail stores that sell groceries, food and beverage manufacturing, food services, childcare, education (including transportation, food service, and related work), home health care, nursing homes, and community living facilities.

Additionally, the United States Congress recently passed the Families First Coronavirus Response Act, including the Emergency Paid Sick Leave Act. These laws require states, cities, and towns of any size, as well as private companies with fewer than 500 employees, to provide two weeks of paid leave to employees at their full rate of pay (up to $511 a day), if an individual is being told to self-isolate or exhibits symptoms of COVID-19 and is awaiting diagnosis. Although companies with over 500 employees do not fall under this law, larger companies must provide up to 12 weeks of unpaid, job-protected leave under the Family Medical Leave Act (FMLA) to any employee who has been with the company for more than a year.

If you are exhibiting severe symptoms of COVID-19, you may also qualify for an accommodation under the Americans with Disabilities Act or Colorado Anti-Discrimination Act. “An employee who has COVID-19 may be entitled to an accommodation under the ADA, such as medical leave necessary for recovery, if their symptoms are serious enough to substantially limit major life activities like breathing and taking care of one’s self,” says Rita Byrnes Kittle, Supervisory Trial Attorney of the Denver Field Office of the U.S. Equal Employment Opportunity Commission. “The focus of the ADA is on the severity and impact of the condition, not on how long the condition lasts. Even temporary illnesses, like COVID-19, if accompanied by serious enough symptoms, can constitute a disability under the ADA.”

Q: My children attend a school that has been closed down because of COVID-19 for the rest of the year, and I have to stay home from work to watch them. Do I have any right to time off?

A: Maybe — it depends on the size of your employer. Here again, the Families First Coronavirus Response Act provides for paid time off. Companies with fewer than 500 employees must provide 10 additional weeks of paid leave, at two-thirds regular rate of pay (up to $200 a day) if you must stay home to care for a child. To earn this benefit, you must have worked for the company for at least 30 days. The first 10 days of that leave may be unpaid, but after that, you should be getting paid. Companies with fewer than 50 employees may seek exemptions from the Department of Labor on a case-by-case basis. Unfortunately, larger employers do not have to provide similar leave for employees under the Family Medical Leave Act.

Q: I have been deemed an essential worker and have an underlying medical condition that makes me more susceptible to severe symptoms of COVID-19, do I still have to go to work? What about when the stay-at-home order lifts?

A: First off, it is important to understand the basis for your concern. Are you generally worried about your safety, or are there documented medical issues you are battling that are considered high risk? If you are suffering from medical issues, it is possible they would constitute a disability under the Americans with Disabilities Act and Colorado Anti-Discrimination Act. And if you are disabled, then you have the right to ask for a reasonable accommodation. In those circumstances, one reasonable accommodation might be to work from home. Also, if you are pregnant and have an underlying condition, you might be entitled to an accommodation under the Pregnancy Discrimination Act.

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But what if your job is the type of job you cannot do from home? Then under both these laws, mentioned above, you may be entitled to medical leave until your doctor thinks it is safe for you to return, so long as it is not an indefinite period of leave.

Q: I am afraid to ask for time off because I really need my job. What do I do? 

A: It is important to know that all of the laws mentioned in this column include strict anti-retaliation provisions. Your employer cannot discipline you, cut your hours, reduce your wages, or fire you for asking about your options for taking leave, taking time off you are entitled to, or asking about your rights. Retaliation is a separate potential legal claim. You should reach out to an attorney if you think your rights may have been violated.

Qusair Mohamedbhai is a founding partner of the Colorado civil rights law firm Rathod Mohamedbhai LLC. He is an adjunct faculty member at Metropolitan State University of Denver where he has taught Employment and Human Resources Law, and at Sturm College of Law at Denver University where he has taught Constitutional Litigation.

Iris Halpern is an attorney at Rathod Mohamedbhai LLC. She is adjunct faculty at the University of Colorado Boulder, School of Law where she teaches Employment Discrimination.  

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