Our Guide To

COVID WORK ISSUES & SELF-HELP SOLUTIONS

Available Nowhere Else

Sklover Working Wisdom Covid-19

Covid Work Issues and Self-Help Solutions

(Updated Mid-August, 2021)
© 2021 Alan L. Sklover
© 2021 Alan L. Sklover

As a part of our efforts to assist employees worldwide in their navigation and negotiation of workplace problems and opportunities at work, we have prepared and here present our “Guide to Covid, Work and the Law.”

A Preliminary Thought: The data regarding the Covid virus changes daily. Therefore, employers are re-evaluating their Covid-related plans and policies daily. For this reason, all of the information below will be revised as soon as is appropriate. At this time, little is certain but . . . uncertainty . . . and the need to keep an open, flexible, adaptive mindset.

One thing is certain: this pandemic will one day be manageable, if not gone. Those who have endured it, and kept themselves firmly rooted in positive values, will surely be stronger, wiser and more resilient for having faced its challenges.

A. Covid: A Challenge for Both Employees and Employers

The Covid 19 pandemic presents to each of us a very challenging set of circumstances: first, a significant danger to health; second, significant impediments to the effective operation of the workplace.

For those whose occupations require their physical presence at their usual workplace – including nurses, airline personnel and first responders, to name just a few – adaptation was in “real time.” Without a moment to waste, these brave employees had to find ways to do their jobs while finding ways to protect their own health and that of their families. It has been far from easy; many have suffered, others have simply left their professions. Tragically, some have not survived.

While many others have been able to perform their work duties from home, more and more employers are openly advocating the need for a return of the workforce to its customary workplaces. Thus, more than before, it is now time for all to prepare to adapt. It won’t be easy. There needs to be a lot of creativity, a lot of flexibility, a lot of patience, and a lot of balancing of interests. But we will get through this; we always do, and we always will.

In this website section, we address what employees can do to advocate for themselves in that process, taking note and taking advantage of both the existing employment laws and the evolving employment laws, as well.

B. Covid: What Does Employment Law Say?

The law of employment, like all other areas of law, adapts over time to changes in society. We have enacted laws to end slavery, prohibit child labor, institute minimum wages, outlaw unsafe work conditions, end discrimination against many “protected classes,” to name just a few of the goals essential to a more just society. The evolution of employment law is never complete; helpful, supportive, protective laws will always be needed, and will always be enacted, too, as societal norms evolve.

Regarding Covid, employment law is starting to do just that. While few “Covid Laws” have been enacted by either federal or state governments, we have begun to look to existing laws, and then bend, twist, interpret and find ways to apply them to the unprecedented facts and circumstances presented by the challenges of the Covid virus. More Covid-related laws will be enacted, that’s for sure, but it will take time.

Employers’ policies, too, evolve over time in order to keep up with the evolving law and societal norms. To appropriately balance their need for quality employees, they will adjust their adherence to laws and regulations, and if not sufficiently, then be held accountable by juries.

As you will come to see, the available “tools” that Employment Law provides us are rather wide-reaching. They include laws, regulations and resultant employer policies regarding (i) workplace safety regulations, (ii) prohibitions against discrimination, (iii) the various disability laws, (iv) the Family Medical Leave Act (“FMLA”), (v) bans on improper retaliation, (vi) employer plans and policies regarding severance, and (vii) statutory rights to Unemployment Insurance benefits.

In this Section of our SkloverWorkingWisdom.com website we also share what employees can do to advocate for themselves in this process, taking into account both the present – and the evolving – employment law.

C. Covid: The 7 Most Common Employee Concerns

In our experience, the following are the 7 most common Covid Workplace Concerns at this time. For each there are effective strategies and methods to address them. For most, we offer Model Letters and Memos to assist you in doing just that.

1. Required Vaccination; Continual Testing:

A pressing circumstance of the Covid pandemic is employers’ increasing insistence that employee productivity requires that employees soon return to their usual and customary workplaces. In that, employers also confront the facts that federal and state laws require that every employer provide its employees a safe workplace, and that the presence of non-vaccinated employees in the “office” surely poses a risk of transmission. For this reason, many employers have announced plans to require returning employees to provide proof of vaccination as a precondition to re-entry.

a. Religious Exemption: For employees of certain religious faiths, vaccination poses a very real problem: vaccination would violate one or more of the tenets of their sincerely held religious or spiritual beliefs.

Employees are entitled to practice their faiths free from (i) religious favoritism, (ii) religious discrimination and (ii) unreasonable interference with religious practice. For exemption from the Covid vaccination requirement, these employees need to provide convincing evidence of such beliefs, and agree to reasonable accommodations to enable their being unvaccinated yet which enable fulfillment of their job duties, as well.

To assist employees who hold a sincere religious or spiritual belief that would be violated by vaccination, we offer a Model Memo Requesting a Religious Exemption from the Covid Vaccine Requirement.

b. Medical Exemption: For other employees, injection of the Covid vaccine could pose a serious threat to their own health. These include people who have: a transplanted organ, compromised immune systems, severe allergies to ingredients of the Covid vaccine, and those who take medications that are inconsistent with it, as well as pregnant or breastfeeding employees.

These employees are legally entitled to an exemption from the Covid vaccine requirement, so long as they provide convincing evidence of such need, and agree to reasonable accommodations that would enable the fulfillment of their job duties, nonetheless.

To assist employees with valid medical reasons, we offer a Model Memo Requesting a Medical Exemption from the Covid Vaccine Requirement.

c. Continual Covid Testing: One practical step many employers are instituting for safety reasons, and also as an accommodation to those who cannot be vaccinated, is “continual Covid testing,” and submission of test result to Human Resources. To date, this has not met much resistance by anyone, at least not yet. While some employment lawyers have shared that they view this step to subject to claims of privacy violation by employees, few employees are known to have yet advanced this concern.

2. Workplace Safety – Is it Safe to Work at the “Office?”

Covid presents safety issues and potential risks for employees who are now, or soon will be, working inside of office buildings. Virus-related concerns are, at the same time, the subject of employee concerns, the impetus of workplace safety regulations, and the basis of potential lawsuits against employers who do not address these concerns. They include, among others, (i) mask-wearing rules, (ii) safe distancing of desks, (iii) maximum occupants of restrooms, (iv) sufficiency of fresh air flow, (v) even the number of elevator occupancy at one time.

Covid also presents issues that arise from workplace-related travel. As examples: is it too unsafe for an employee to travel to work during usual rush hours on a bus, in a subway, take a five-minute ride in a crowded elevator? Might staggered work hours – perhaps even staggered work days – be a potential reasonable accommodation? For the first time, these issues and potential accommodations are now before us.

To help you find out what Covid-related safety steps your employer may be instituting, we offer a Model Memo entitled “What Covid Safety Steps is our Company Taking?”

To further assist those employees who would like to request an exception or modification of Covid-related safety steps, we offer a Model Memo entitled “Request for an Exception, Modification or Accommodation to a Covid Safety Arrangement or Procedure. “

3. FMLA (and Other) Leaves of Absence – When Health or Family Require Time Off

In a critical respect, Covid differs from most other illnesses in that, due to its high degree of airborne transmissibility, it is quite likely to infect others. If you come into contact with an infected colleague, or if your child comes into contact with an infected child, you, your spouse and your other children may all need to quarantine away and apart from your usual daily duties.

The federal Family Medical Leave Act (“FMLA”) entitles employees to leaves of absence in circumstances like these. So do many state laws, and employer policies, too. As both a workplace safety measure, and as an accommodation to personal or family need, it is quite likely that many employers will choose to provide “quarantine leaves” when alerted to even one family being infected.

And might employees be entitled – perhaps even required – to take some time off for purposes of Covid Testing, quarantine or Recovery as what is termed an “intermittent” leave of absence under FMLA? Only time will tell.

To help you fully understand and faithfully follow the requisite procedures for a Leave of Absence, we offer a Model Memo entitled “Request for Forms and Procedures for Covid-19 Related FMLA Leave of Absence.”

4. Accommodations for Covid-Related Disabilities

The legal definition of “disability” is

    “a physical or mental impairment that substantially limits one or more of a person’s life activities, or is perceived to do so, or of which there is a history of such.”

Due to no fault of our own, be it by accident, disease or genetic issue, each of us may one day experience a disability. If due to a disability you cannot perform your usual workplace duties due to such an impairment, but you can do so if given a “helping hand” of a sort – what we call an “accommodation” – you are legally entitled to that “helping hand,” so long as it is “reasonable.”

As an example, Covid can continue to debilitate its victims long after full recovery . . . because for many people there is no “full” recovery from Covid. Those who suffer from what is called “Long Covid” continue to intermittently suffer profound fatigue, disabling headaches, and blurred vision . . . all appropriate reasons for granting as an accommodation working from home, so that at times of fatigue, headaches and blurred vision, the employee might lay down on a bed until these symptoms abate or disappear.

Requesting an accommodation to a Covid-related disability is something most people can do without an attorney, if only they knew how.

That is precisely why we offer a Model Memo entitled “Request for Accommodation for Covid-19 Related Disability.”

5. Retaliation for Raising a Covid-Related Concerns

There are no perfect employees or perfect employers. You will always find some people who bristle – or worse – at what they perceive to be ingratitude, selfishness, disloyalty, complaining or anyone who make their life “difficult.” This is especially likely an occurrence during this time of “Covid Exhaustion.”

With all of the Covid-induced changes employers are making in (a) their workplaces, (b) their practices, policies and procedures, (c) their staffing patterns, and (d) at times even their business models, it would not be at all surprising if they intentionally or accidentally failed to honor all of the laws, regulations, rules and promises that apply to those changes made. And reasonable reactions can also be result in perceptions of retaliatory intent.

If you believe you have been retaliated against for raising legitimate issues, concerns or even complaints, you have both the right, and probably the leverage, to seek redress of sorts for what has happened to you.

To assist employees in this situation, particularly in this “Time of Covid,” we offer a Model Memo entitled “Raising a Concern about Covid-Related Retaliation.”

6. Severance Arrangements and Requesting Improvements in Them

Throughout the time of Covid many employers have either been forced to, or have chosen to, reduce expenses, and the most common method of doing just that is reduction of payroll expense.

In the event that you are laid off from your job, it is likely you will be offered a severance arrangement. In its essence, severance is a business transaction between employer and employee by which (a) risks of several kinds, most especially a release of possible claims and agreement not to use, and, in return, (b) the employer gives the employee monies (continued salary or a lump sum), benefits and possibly other things, too.

When it comes to severance, it is important that employees remember the adage “If you don’t ask, you don’t get.” Severance tends to be a rather negotiable transaction, if there are any good “arguments” for why it is you deserve better treatment. It’s also important you understand that severance is a negotiable transaction, and that care and forethought need to be taken to make your request in the best way possible.

Like most business arrangements, severance is finalized by means of a written agreement that sets forth both parties’ rights and obligations. Each and every word is important, as is what might be missing from the document.

To assist employees who request better terms of severance, whether that be larger payments, release from obligations such as repayment of loans, or even release from non-compete restrictions, we offer a Model Memo entitled “Requesting Improved Terms of Severance.”

7. Unemployment Insurance Benefits

Unemployment Insurance Benefits (sometimes called “UIB”) are generally administered on the state level, and each state has its own (i) eligibility requirements, (ii) payment periods, (iii) benefit amounts, and (iv) procedures.

2021 marked a number of additional and extended UIB benefits instituted by the federal government. The federal CARES Act gives states the option of extending unemployment compensation payments and also making independent contractors and other workers eligible, though they ordinarily are ineligible for UIB. You should contact your state’s UIB office to determine what you are entitled to.

Generally speaking, eligibility for UIB is almost always limited to those who have (a) lost their employment, (b) due to no fault of their own, and (c) are looking for, and are able to, work. Those nearly universal eligibility requirements are generally not difficult to establish when filing a UIB claim. And, generally speaking, if you resign from your job, you are not entitled to UIB. However – and this is a big “however” – if you resign for a “good enough reason” you have a very good chance of collecting UIB.

So, what’s a “good enough reason?” There is no clear definition; often it is the Clerk at your UIB office who makes the decision. One is unsafe or dangerous workplace conditions. If you believe that your workplace is not safe for Covid-related reasons, and for that reason you “Involuntarily Resigned,” you may well be found eligible for UIB. The same holds true if you are denied a “reasonable accommodation” to a disability of some kind.

Likewise, if you cannot leave your home because your children are home-schooling due to Covid, the same might be true. And, instead of laying off employees, some employers are making up misconduct or poor performance, and calling your layoff a “firing,” potentially making you ineligible for UIB. The potential pitfalls are many, costly and unnecessary.

To assist employees who are applying for UIB, especially for reasons related to Covid, we offer two Model Memos entitled (i) “Involuntary Resignation” and “To Unemployment Agency Explaining Involuntary Resignation.”

D. A List of Our Covid Self-Help Model Memos
To Help You Address Covid Concerns

“What to Say, and How to Say It.”™

“What Steps is Our Company Taking to Promote Covid-19 Safety at Work?” With 32 Sample Questions [COVID-19 Model Memo 1]

First and foremost is the issue “Is the office a Covid-Safe place to work?” This Model Memo shows you what to ask, and how to ask, regarding information that may be of great value to you in determining whether you can safely return to work, regardless of whether your workplace is an office, a factory, a restaurant, out of doors, or otherwise.

Request for Exception, Modification or Accommodation to Your Employer’s Covid-19 Arrangements and Procedures [COVID-19 Model Memo 2]

This Covid-19 Model Memo contains the 24 most common requests employees make for changes they need to accommodate workplace conditions and their or their family’s facts and circumstances. Included, too, are good reasons to offer in support of those requests. Examples: requests for (1) continued work from home, (2) staggered work hours, (3) being seated near open windows, (4) a childcare subsidy, (5) safety from angry customers, (6) less crowded elevators, (7) leave for self-quarantine, (8) a change in the way your performance is evaluated. It shows you “What to Say, and How to Say It.”™

Request for “Religious Exemption” to Vaccine Requirement [COVID-19 Model Memo VR]

This Covid-19 Model Memo VR is a comprehensive request to your employer to be exempted from the requirement that you be Covid-vaccinated before returning to the “office” based upon a good faith religious or spiritual belief. It includes a Model Letter from a Clergy Person, as well, in support of your request.

Request for “Medically-Based” Exemption from Covid 19 Vaccine Requirement” (with Suggested Accommodations) [COVID-19 Model Memo VM]

This Model Letter has been crafted to assist you in receiving an “Medically-Based” Exemption from your Employer’s Requirement that you obtain a Covid 19 Vaccination before returning to your workplace. It includes (a) your reasons for needing the exemption, (b) suggested Reasonable Accommodations to enable you to fulfill your obligations and yet not endanger your colleagues, and (c) a Letter of Support from a Physician. As with all of our Model Memos, it requires that you insert your own unique facts and circumstances, and shows you “What to Say, and How to Say It.”™

Request for Forms and Procedures for Covid-19-Related FMLA Leave of Absence [ COVID-19 Model Memo 3]

For Covid-19 purposes, when requesting FMLA forms and procedures, this Model Memo shows you “What to Say, and How to Say It.”

Request for Accommodation for Covid-Related Disability [ COVID-19 Model Memo RA]

To assist employees who have Covid-related Disability (medical or mental limitation)  we offer this Model Memo Requesting an Accommodation for a Covid-related Disability.

It contains each element of a request that fully complies with the Americans with Disabilities Act (“ADA”), using simple, plain English.

Involuntary Resignation [COVID-19 Model Letter IR]

If your continued working for your employer is such that it is unsafe, unhealthy or otherwise poses a danger to you or your career or reputation, you might consider resigning, BUT BUT BUT, if you do so, make it crystal clear that you are doing so not voluntarily, but INVOLUNTARILY. This way, you are keeping the “door” open to settlement of claims, severance and even complaints to government agencies.

For the past 20 years, thousands of employees have used our “Involuntary Resignation” to their great advantage. A great idea. This Model Letter shows you “What to Say, and How to Say It.”™

To Unemployment Agency Explaining Involuntary Resignation [COVID-19 Model Letter]

Another good reason to INVOLUNTARILY RESIGN is so that, when you apply for Unemployment Insurance Benefits, and you show that you literally had no choice but to leave your job, the chances are much, much better that you will be granted benefits.

Request for Therapist or Doctor Note to Support FMLA Leave, Short Term Disability, Involuntary Resignation, etc.

This Model Letter has been crafted to assist you in obtaining a Therapist’s or Physician’s note to support your request for FMLA Leave of Absence, Application for Short Term Disability, Involuntary Resignation, Severance, Unemployment Benefits, etc.. Includes a Sample Note for use by your Therapist or Physician.

COVID-19 Model Memo – Raising a Concern about Covid-Related Retaliation

This Model Memo shows you “What to Say, and How to Say It.”™

COVID-19 Model Memo – Requesting Improved Terms of Severance

This Model Memo shows you “What to Say, and How to Say It.”™

COVID-19 Master Guide/Checklist – 100 Steps in a Complete Covid-19 Response (Being Updated)

This Master Guide and Checklist is unavailable anywhere else. It’s a step-by-step Guide to helping you get through the “darkness” we presently face.

COVID-19 PHONE CONSULTATION – Telephone Consultation with Mr. Sklover regarding Your Covid-19 Issues:

30 Minutes:
$395.00

60 Minutes:
$595.00

Other Options

COVID-19 “CHOOSE ANY 3” – Email Your Preferences to Vanessa@ExecutiveLaw.com or call (212) 757-5000; and pay the discounted fee by credit card at a 20% discount:

$187.75
$233.25;
a 20% discount

E. Our “Private Library of 62 Work and Career
Self-Help Topics

For those who want to learn more about Self-Help at Work, consider perusing our “Private Library.” There is nothing like it available anywhere else.

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