Employment

Headline:

A federal appeals court has clarified that discouraging an employee from taking unpaid leave can violate the Family and Medical Leave Act.

Last-reviewed: 9am, June 23, 2022

Key Resources:

• Department of Labor (DOL) COVID-19
• Equal Employment Opportunity Commission (EEOC) COVID-19 page
• National Employment Law Project (NELP)

Paid Leave and Work Safety

The Basics:

• People with Long COVID may be entitled to reasonable accommodations in their workplace. Learn more here.
• Federal vaccination mandates have largely been blocked by courts, although a vaccine mandate is required in medical facilities that accept Medicare and Medicaid.
• Some states require paid sick leave to qualified workers.
• The Biden-Harris administration announced new investments and strategies to expand employment opportunities for people who were formerly incarcerated. Read the administration’s Fact Sheet here.

The Breakdown:

• The EEOC has issued this guidance on Long COVID as a disability under the ADA.
  • For resources to help workers experiencing long-term COVID-19 symptoms, consult the US DOL “Coronavirus Resources” website.
• A federal vaccine mandate applies only to workers in health care facilities that accept Medicare or Medicaid. Private employers can implement their own vaccine mandates. See OSHA for more information. Status of federal vaccine mandates here (last updated May 12, 2022).
  • With few exceptions, private employers may lawfully require employees to get vaccinated against COVID-19 before returning to the workplace.
• Employees with workplace safety concerns contact www.osha.gov/contactus or 1-800-321-6742 to file a report.
  • Local coalitions for occupational safety and health may have information on advocacy and resources to address this concern.
• The DOL offers COVID-19 workplace safety materials online in both English and Spanish. OSHA also provides guidance in Mitigating and Preventing the Spread of COVID-19 in the Workplace.
• Workers experiencing Long COVID can contact the Job Accommodation Network to seek information and support to help them keep working during recovery.

The Bottom Line:

• Private employers can require that all employees, subject to eligible medical or religious exemptions, get vaccinated against COVID-19 before returning to the workplace.
• Care teams supporting people with questions related to their employment can direct them to consult with their Human Resources department.

Unpaid Leave

The Basics:

• The FMLA allows eligible workers time off without the risk of losing their job but does not provide paid leave.

The Breakdown:

• Under the FMLA, eligible workers can receive job-protected unpaid leave to address their own illness or to provide caregiving to a close family member. Employees who have worked at least 1,250 hours in the last year may be eligible whether their issue is related to COVID-19 or another health issue.
• The DOL has this guidance regarding the federal Family and Medical Leave Act (FMLA), including this COVID-19 and the Family and Medical Leave Act Questions and Answers.
  • The DOL offers numerous FMLA resources in Spanish, including this FMLA poster.
• On June 1, 2022, a federal appeals court held that, in addition to denying an employee’s request for FMLA leave, an employer’s discouraging an employee from taking unpaid leave can violate the Family and Medical Leave Act.

The Bottom Line:

• Care teams can uplift how human resource departments can clarify whether a worker has leave benefits or specific insurance policies, such as short-term disability leave, which may provide coverage if an employee needs to miss work due to a COVID-19-related illness.

Job Loss

The Basics:

• State policies vary on whether people are eligible for unemployment benefits if they leave or lose their jobs for not complying with an employer’s COVID-19 vaccine mandate.
•  Some people who received unemployment insurance may have a higher tax bill if taxes were not withheld from their UI.

The Breakdown:

• Workers who are unemployed through no fault of their own should be eligible for Unemployment Insurance. Learn more here about unemployment benefits and COVID-19 provisions.
  • Each state sets its own guidelines for UI benefits eligibility. To learn how to file for unemployment benefits in your state, click on CareerOneStop and select your state.
  • Report unemployment insurance fraud online or by calling 1-800-347-3756.
• People who lose their jobs over an employer’s COVID-19 vaccine mandate can in some states be considered ineligible for unemployment benefits because they refused to comply with company policy.
  • Not all states operate similarly, so it is important to check with each state’s department of labor.
  • Some states have passed legislation that will allow former employees who refused COVID-19 vaccines to receive unemployment benefits.

The Bottom Line:

• Care teams can help people experiencing job loss by connecting them to job training and work search resources, as well as income maximization strategies. 

Spotlight on Non-Discrimination

Employment discrimination based on national origin or race, age, sex, sexual orientation and gender identity, religion, disability or the perception that one has a disability, is illegal. If you experience employment discrimination for these or other reasons, you can file a complaint with the Equal Employment Opportunity Commission (EEOC). Also visit state and local anti-discrimination agencies’ websites for COVID-19-related non-discrimination information and practical updates.