In the short span of two weeks, so much has changed about how we live, work and interact with each other. During these times, The Sharp Firm offers the information below to help guide you on employment issues related to the Coronavirus and transmission of COVID-19. Remember, these are general guidelines. If you need specific legal advice regarding your situation, feel free to reach out to a member of The Sharp Firm to answer your questions.
Who is entitled to collect Unemployment benefits under Governor Whitmer’s executive order regarding unemployment insurance?
Executive Order 2020-10 means that 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.
I have tried applying for unemployment but I keep getting kicked out of the system because it is so busy. What do I do?
With the influx of claims due to persons unemployed by the coronavirus, the State of Michigan has established a system to try to facilitate an easier claim filing process.
When applying online at www.michigan.gov.uia:
- If your last name begins with the letters A – L you are to file claims on Monday, Wednesday or Friday.
- If your last name begins with the letters M – Z, you are to file claims on Sunday, Tuesday or Thursday.
- If you missed your day, you can file on Saturday.
- The website is available 24/7 to file.
You can call to file a claim at 1-866-500-0017:
- If your last name begins with the letters A – L, you can call on Monday & Wednesday. I
- If your last name begins with the letters M – Z, you can call on Tuesday or Thursday.
- If you missed your day, you can call on Friday.
- The phone lines are open Monday – Friday 8 am – 5 pm.
If I am an independent contractor or self-employed and my business closed due to the Coronavirus or Governor’s orders, can I collect unemployment benefits?
Under the Coronavirus Aid, Relief, and Economic Security (CARES) Act (signed March 27, 2020 by President Trump), those not traditionally eligible for unemployment, including the self-employed and independent contractors, and those with limited work history will be eligible to receive unemployment benefits. (At this time, Michigan has not announced how or when it will begin accepting applications from self-employed persons or independent contractors, but expect guidance soon. In the meantime, it would be prudent to gather together recent earnings information which will likely be requested at the time of application.)
Does this mean that I can collect unemployment benefits if I am fearful about going to work because of potential exposure to the Coronavirus, or because I live with someone who is in the at-risk categories?
For persons who are worried about going to work because they live with elderly relatives or persons who are immunocomprised, but are otherwise healthy themselves, they would not be entitled to unemployment benefits if they quit working.
The CARES act provides additional unemployment compensation by increasing the weekly benefit by an additional $600 per week for up to four months.
Further, the program extends unemployment benefits by an additional 13 weeks to help those who remain unemployed after state unemployment benefits are exhausted, through December 31, 2020.
If my employer is remaining open, even though we are not doing essential work, can they force me to work?
If your employer requires you to report to work and they are not an essential employer, that is one which sustains or protects life, they may be in violation of the Governor’s Order. An employer is prohibited from terminating an employee for refusing to violate a law in the course of the employee’s employment. If they require you to come to work, you have a right to object to being forced to violate a law or policy of the state (in this case, the Governor’s Order). If your employer takes action against you for objecting to violate the law in the form of retaliation such as termination, demotion, suspension or other discipline, you may be able to bring a claim against them.
Further, a willful violation of the Stay Home, Stay Safe order, including an employer compelling a non-essential employee to work outside of their home, is a misdemeanor and can be reported to law enforcement. If you report your employer’s violation of the Order to law enforcement, and you are terminated, demoted, or other disciplined for your report to law enforcement, you should seek legal advice immediately, as you may have a claim under the Michigan Whistleblowers Protection Act.
Does my employer have to give me any documentation if they are requiring me to come to work while the “Stay Home, Stay Safe” Order is in effect?
No. Workers who are necessary to conduct minimum basic operations are exempted from the stay at home order. For example, these might be people who have to water plants at a florist to maintain the inventory, perform payroll work, go to an office to ensure other workers can continue working remotely, care for animals, ensure security, or process necessary transactions (ie. bank deposits). A business must determine which of their workers are necessary to conduct minimum basic operations and inform such workers of that designation. The designation must be made in writing (including by electronic means or public website) by March 31, 2020 at 11:50 p.m., however, the employee does not have to carry the documentation with them while traveling to and from work.
If I am employed at an essential business and we are staying open during Governor Whitmer’s “Stay Home, Stay Safe” order, what protection does my employer have to provide me against the Coronavirus?
First, if you are vulnerable to complications from COVID-19 due to a preexisting health condition, you may be entitled to protection under the Americans with Disabilities Act (ADA) or the Michigan Persons with Disabilities Civil Rights Act (PDCRA), which would allow you to request a reasonable accommodation. In this context, that may include working from home; access to masks, gloves, or other proactive equipment; isolation or other ‘social distancing’; time off from work under a leave of absence for a reasonable period of time with a known duration; or even job reassignment.
Second, if you do not have an underlying health condition which would provide you protection via the ADA or PDCRA, you still have a right to a workplace which is safe and healthful. If you believe that working conditions are unsafe or unhealthful, first you should bring your concerns to your employer’s attention. Further, you can file a complaint with OSHA concerning a hazardous working condition (1-800-321-6742) or MI OSHA (800-866-4674). If the condition clearly presents a risk of death or serious physical harm, there is not sufficient time for OSHA to inspect and you have brought it to your employer’s attention, you may have a legal right to refuse to work. However, these situations are very fact-specific, and you should seek specific legal advice before refusing to do work at an essential workplace.
Even if you have been designated as a critical infrastructure worker, you cannot be compelled to work if you have testified positive for COVID-19 and have been instructed by your medical care provider or public health authority to quarantine. During the quarantine period an employer should not require an employee to work outside of the employee’s home or work against physician’s orders.
Can an employer require an employee to stay out of work or make them leave work because they are too sick to work?
Yes, an employer can tell an employee not to come to work. An employer can also require an employee to leave work if they are sick. The employee must still be paid their regular wage for the hours they were at work before the employer sent them home. If employees are asked to stay home, they may apply for unemployment insurance benefits. Employees may also be eligible for paid sick leave under a new federal law – the Families First Coronavirus Response Act (FFCRA). If an employee is eligible for emergency leave under the FFCRA, an employer may not require an employee to use other paid leave provided by the employer to the employee before the employee uses emergency paid leave under the FFCRA.
The Families First Coronavirus Response Act (FFCRA) goes into effect on April 1, 2020. It has temporarily expanded paid leave rights. 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.
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.
As an employee, how much will I be paid while taking paid sick leave or expanded family and medical leave under the FFCRA?
It depends on your normal schedule as well as why you are taking leave.
If you are taking paid sick leave because you are unable to work or telework because you (1) are subject to a Federal, State, or local quarantine or isolation order related to COVID-19; (2) have been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or (3) are experiencing symptoms of COVID-19 and are seeking medical diagnosis, you will receive for each applicable hour the greater of:
- your regular rate of pay,
- the federal minimum wage in effect under the Fair Labor Standards Act, or
- the applicable State or local minimum wage.
In these circumstances, you are entitled to a maximum of $511 per day, or $5,110 total over the entire paid sick leave period.
If you are taking paid sick leave because you are: (1) caring for an individual who is subject to a Federal, State, or local quarantine or isolation order related to COVID-19 or an individual who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; (2) caring for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons; or (3) experiencing any other substantially-similar condition that may arise, as specified by the Secretary of Health and Human Services, you are entitled to compensation at 2/3 of the greater of the amounts above.
Under these circumstances, you are subject to a maximum of $200 per day, or $2,000 over the entire two week period.
If you are taking expanded family and medical leave, you may take paid sick leave for the first ten days of that leave period, or you may substitute any accrued vacation leave, personal leave, or medical or sick leave you have under your employer’s policy. For the following ten weeks, you will be paid for your leave at an amount no less than 2/3 of your regular rate of pay for the hours you would be normally scheduled to work. The regular rate of pay used to calculate this amount must be at or above the federal minimum wage, or the applicable state or local minimum wage. However, you will not receive more than $200 per day or $12,000 for the twelve weeks that include both paid sick leave and expanded family and medical leave when you are on leave to care for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons.