Navigating Covid, Work and the Law
© 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 this Guide to Covid, Work and the Law.
“Repairing the World
One Empowered and Productive Employee at a Time”™
- While You’re Working from Home
- Covid Workplace Challenges
- Examples of the Covid Issues
- There is Not Yet a Clear “Covid Law”
- Apply Existing Law to the Covid Experience
- 11 Most Common Covid Concerns
- Covid: Our Method and Approach
- Our Covid Solutions, Step by Step
- Model Letters and Memos To Assist You
- Covid Telephone Consultations
A. Covid: Whether At Home or In Office
At this time the Covid virus remains a distinct risk to the health and lives of all. When that risk to health will dissipate, and perhaps disappear, no one knows. In the meantime, we can only do our best to take care of ourselves and our loved ones, remain calm, and hope for the best.
A rather urgent aspect of the Covid virus is that, while it poses a health risk, it also has brought about grave financial dislocation, and hence economic damage as well. Thus, while many who can do their work from home don’t have as pressing Covid “health risks,” they nonetheless do face employment risks.
The Covid era risks and issues for those employees who remain working from home are primarily ones of (a) maintaining their level of workplace interactivity and functionality, (b) demonstrating to their employers their ongoing workplace achievements, and (c) taking reasonable steps to set the stage for their future value and contributions to their employers, colleagues and customers. Every workplace and every job is different, so these issues are ones that each employee “faces alone.” That said, we can and do make generalized suggestions for doing so. And, too, when difficulties arise in these matters, we can assist, as well.
For this reason, we have prepared, and offer, a Checklist for Covid Workplace Issues, which can be obtained below.
If, as and when your employer asks or requires you to return to your usual workplace, the information set forth below will instantly become more relevant and valuable to you. So, we suggest, “Read on.”
Since early 2020, we’ve all lived with a new concern: the Covid-19 pandemic, and how we can safely live our lives, including our work lives, until it is resolved by medical scientists.
It’s an experience unlike any other to which we’ve had to adapt. It has brought with it not only unprecedented health challenges but unprecedented challenges in how and where so many of us earn a living. And, too, Covid brings to us all a very complex set of circumstances to which all of us – employees and employers alike – need to adapt.
- Are employers responsible for their employees’ health safety in the lobbies, elevators, hallways and restrooms of the buildings in which they daily earn a living, even though they are not, technically, “in the office?”
- Can employees be terminated for refusing to engage in dangerous work-related activities, such as sitting at desks that are not socially distanced, or attending “mask-less” meetings?
- Can employers prohibit – or require – that employees travel on airplanes, buses, subways and other means of mass transit?
- Can employees be required to be Covid-vaccinated as a condition to continued employment, or as a pre-condition to returning to the office?
- Must employers treat in the same fashion those employees with or without young children, or is it illegal discrimination to treat them differently?
- If an employee who works from home trips on a loose rug, can he or she sue his or her employer for negligence? Collect Workers Compensation Benefits?
B. What Does the Law Say?
Our employment laws have evolved over centuries in response to society’s own evolutionary changes. For example, when, in the late 1800’s and early 1900’s, many people migrated from farms to cities, in doing so they left behind farm work and entered into factory work available in urban settings. Crowded factory floors and dangerous factory machines often gave rise to innumerable instances of lost fingers, mauled hands and the like.
In turn, this then led to many lawsuits by workers against their employers, and, in response, most states established an entirely new and separate legal system, devoted exclusively to resolving these disputes.To this day, Workers Compensation, as it is now known, provides lost wages, medical expense reimbursement and legal expense to those injured on the job. And, too, since it is funded by employer contributions, it incorporates an incentive to employers to make the workplace a safer place. Thus, we achieved a more flexible, less expensive, more focused way to provide fairness to employees.
Another evolution in the law began in the early 1980’s, when a new type of machine – called “computers” (you may have heard of them) – “invaded” the workplace. It made so many administrative positions unnecessary, and thereby put so many employees out of work, that our society passed many laws limiting the legal reasons on which employers may base their termination choices. No longer are they permitted to make those choices on the basis of age, race, religion, gender, disability, etc.
Not only were new laws enacted, but to relieve the resultant Court congestion, legislatures established administrative agencies to adjudicate, resolve and settle hundreds of thousands of discrimination cases annually, creating a less expensive and more flexible approach to resolving workplace disputes.
We are presently in the earliest stages of coping with Covid; in fact, some very famous scientists and doctors are of the believe that, like the common cold virus, and the influenza virus, the Covid virus may return each autumn when the outside temperature lowers. Employees are adapting, employers are adapting, our workplaces are adapting, and pretty much with certainty, over time our Covid Laws will evolve and adapt, too.
As described above, laws slowly evolve to provide us with “guardrails” for what is, and what is not, acceptable conduct by employees and employers. To date, we don’t yet have any “Covid Laws,” “Covid Regulations” or clearly defined “Covid Corporate Policies.” While there are some state-mandated Covid Directives, most of these are of a temporary nature, and based largely on the “Covid Statistics” at the moment.
To date, the vast majority of employees who work inside buildings have not yet been asked to return. We don’t know (i) when that may happen, (ii) what those workplaces will look like, or (iii) how they will function. Nor do we know how many employees will remain working from home, and for how long that may be.
It’s an unsettled world at work, so for now we can only (1) identify what today’s Covid-related problems are, and (2) craft solutions for them, and what they may later be. Solutions should be. If, as many expect, the Covid virus continues to affect the ways and places we work, chances are very good that, over time, there will develop a set of “Covid Laws” to guide us on a daily basis, and be there to help resolve disputes when they arise.
C. Covid Concerns and Their Solutions
In our experience, the following are the 11 most 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 that. (See below.)
1. COVID CONCERNS
1. Workplace Safety: Historically, issues of workplace safety have involved the most physically dangerous occupations, including among them in mining, construction, agriculture, transportation, and fishing.
You may notice that these occupations generally take place in the outside environment, and in more rural areas. Covid presents us with issues and problems for employees who generally work inside of buildings, and in more urban areas. Thus, in this time of Covid, safe distancing of desks, maximum occupancy of restrooms, the number of occupants in elevators are, for the first time, the greater focus of the analysis of workplace safety.
Covid also presents issues related to workplace-related travel. For example, is it dangerous for an employee to travel to work on a bus, in a subway, take a five-minute ride in a crowded elevator, or even fly to a different city for a business conference? Generally speaking, it never was before, but generally speaking it is now. Thus, Covid’s new set of challenges and circumstances requires a new analysis, and without question, new solutions.
2. Accommodations for Personal or Family Circumstances: We noted above that Covid differs from many illnesses in that it affects more indoor employment than outdoor employment, and more urban employment locales than rural ones. In another respect, Covid differs from other illnesses: It affects entire families and their home-lives in a new and different way.
More employees than ever before are working from home over the internet. More children are being schooled at home over the internet, as well. The degree of Covid contagion is so high that the risk of intra-family contagion is higher, too. So, if a child comes into contact with a Covid-afflicted child, both his mom and dad, and his or her siblings, too, may need to quarantine for weeks away and apart from their usual daily duties. Workplace rules, policies and obligations – as they are now, and how they will evolve in the future – surely must take these circumstances into account.
3. Leaves of Absence: Can an employer terminate an employee because she needs to quarantine, and thus work from home? Our employment laws include a number of methods designed to permit employees to recover, heal and return to health after they, or their loved ones, have experienced injury or illness. These include the federal Family Medical Leave Act (“FMLA”), as well as other state and municipal laws.
Covid and the unusual number and variety of difficulties it has brought to employees’ lives – medical, emotional, family-related, financial, etc. – have given rise to an increased number of requests for such leaves of absence. At the same time, when one employee takes a leave of absence, that may only increase the burden felt by his or her colleagues.
From the employer’s perspective, this may lead to greater difficulty keeping employees motivated, customers pleased and businesses operating, and often at increased cost. The increased use of leave-of-absence rights, and the limits of those rights, has led to an increase in disputes regarding those rights.
4. Emotional and Mental Health Difficulties: Tragically, the raging Covid-19 pandemic has resulted in tens of millions of cases, and hundreds of thousands of deaths. Almost all of us suffer emotionally to some degree from the restrictions on our daily lives made necessary to avoid illness. Our psyches are jarred daily, by the sudden loss of common social events and rituals, such as missed birthdays, postponed weddings, cancelled high school proms, digital-only funerals, even casual trips to the mall, dinner in restaurants and going to watching a movie at a local theater, to name just a few.
Thus, in emotional and mental health matters we are presented with a new set of pressing issues arising from Covid-19. Historically, most of the laws that help employees who are experiencing emotional and mental health difficulties were limited in scope, and often “kept in the dark.” Today’s increased incidence and frequency of emotional and mental health difficulties makes Covid a uniquely challenging matter.
To say that this causes many ancillary difficulties in the workplace would be a gross understatement. Employees experiencing these difficulties may require more personal days, leaves of absence, legal protections afforded to those with such difficulties, and even workplace accommodations to prevent worsening of such difficulties. In turn, this has led to people experiencing problems sleeping, eating, concentrating and performing needed daily tasks. When these things occur, we also tend to see greater use and misuse of alcohol, illicit drugs, and even prescribed medications.
5. Disability (Long- or Short-Term): Not only can the Covid virus damage health at the moment, but it can have long-lasting lingering effects. In turn, it has also resulted in the societal institutions upon which many of us depend, including schools, hospitals, unemployment agencies, mental health facilities, laying upon them great stress upon their sources of financial support.
Fortunately, we are harnessing a wide array of supplemental resources for those needs, including government grants, insurance programs, short-term and long-term disability programs, just to name a few. Dependence on these sources are rising, and can be expected to continue to rise for some time.
6. Unfounded Performance and Misconduct Allegations: Unfortunately, during this Covid time, there have been an increased incidence of employers using unfounded allegations of poor performance or employee misconduct to dishonestly “urge” employees to resign their jobs hoping they will thus be able to reduce overhead costs without needing to offer any severance or unemployment benefits. This is often accomplished by the cynical requirement of Performance Improvement Plans, commonly called “PIP’s.” Resisting such pressure is not easy, but no one is guaranteed “easy” in life.
7. Retaliation for Raising Concerns or Reporting Impropriety: There is no question in our minds that, for some time now and increasingly during the time of Covid, many employers are “cutting corners,” “twisting the truth” and “bending the rules” in pursuit of financial gain by means of ignoring or willfully violating laws, regulations, policies and norms of acceptable behavior.
With increasing frequency, those employees who raise concerns about such practices are facing improper and illegal retaliation for doing so, including being selected for layoff, bullying, and false claims of poor performance or misconduct.
8. Repayment Obligations: It is not unusual for employers to provide employees with financial assistance in the form or (i) loans, (ii) relocation expense, (iii) tuition and related expense, (iv) payment of bonuses earned at a prior employer but lost due to taking this new job, and (v) at times, legal costs, with repayment expected on certain conditions, a common such condition being that the employee does not remain on the job for a specified period of time.
What do you think? Is repayment required if the employee’s workplace is too unsafe to return to due to Covid? Is repayment required if the employee has contracted Covid, or is in Covid quarantine, and for that reason failed to return to work? There are many Covid-related issues here, and in almost all cases good potential reasons to seek waiver of repayment.
9. Severance Arrangements: It’s very important that you understand what severance is, and what it is not. In its essence, severance is a business transaction between employer and employee by which (a) the employer lowers or eliminates risk to it, and (b) the employee receives monies, benefits and possible other advantages in return. It is not an expression of caring or appreciation, nor a payment for working so hard for many years.
In this time of Covid, many employers are finding it necessary to lay off employees due to difficult business conditions. And, too, other employers are finding Covid a convenient time and reason to trim expenses, one of the largest expense being payroll. Whatever the reason, it’s important that employees understand that severance is a highly negotiable transaction, and that care needs to be taken to do it to your, and your family’s, best advantage.
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.
10. Resignation, Either Voluntary or Involuntary: There are times that workplace circumstances become simply intolerable, and in these circumstances, it sometimes becomes best to depart.
In some instances, employees simply resign, and by doing so without negotiation sadly forgo valuable opportunities to potentially (a) collect severance, (b) collect Unemployment Insurance Benefits (“UIB”), (c) register legal claims for improper or illegal treatment, (d) have unvested equity continue to vest, and/or (e) have repayment obligations waived, just to name a few. To help employees in those circumstances, we have created a new concept known as “Involuntary Resignation,” by which an employee may depart AND still leave in a very advantageous manner.
Carefully resigning is always important, and carefully considering “Involuntary Resignation” is very often to your great benefit, especially during this time of Covid.
11. Unemployment Benefits: Unemployment Insurance Benefits (sometimes called “UIB”) are generally administered by on the state level, and each state has its own (i) eligibility requirements, (ii) payment periods, (iii) benefit amounts, and (iv) procedures. Generally speaking, though, 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.
However, if you believe that your workplace is not safe for Covid-related reasons, and for that reason you don’t show up to your job without permission of your employer, you may well be viewed to have quit, and thus found ineligible for UIB.
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.
2. COVID SOLUTIONS
The ultimate challenge for those of us who guide employees in workplace issues is to use the laws and rules that are in place at this time, and to adapt them to the “Covid Experience.” Regarding the many new Covid issues at this time, many employees feel as if they are walking through a dense fog, in the dark, while blindfolded.
That’s a tough feeling, as it commonly and naturally gives rise to feelings of (i) uncertainty, (ii) anxiety, (iii) reactivity, and (iii) fear, leading quite often to ineffective and unwise actions.
But, if we can provide you the information, insight and model materials, and perhaps the touch of guidance you need to stand up for yourself on Covid Issues at Work, then this will, hopefully, empower you to negotiate and navigate effectively for yourself, and by yourself, without the expense of legal counsel or litigation.
We have a saying in our office: “Clarity of Mind is the key to the Clarity to Mend.” Then, as the folk singer Joan Baez says, “Action is the antidote to despair.”
You may notice that each of Our Covid Solutions flow nearly directly from the most Common Covid Concerns of employees. This is a manifestation of “customer-based culture,” which represents the essence of the best that exists in all professional assistance.
A key part of our approach, and the unique assistance it offers you, is that it does not require the intervention of an attorney into the process. Once an attorney “appears on the scene” on behalf of an employee, then quite often the employer’s attorney is called into the process, and, you know, “attorneys will be attorneys.”
This is not to suggest that attorneys are never necessary in employment matters, but there is a lot you can do for yourself, by yourself, to your own and your family’s best advantage. And, too, if you need to retain the services of an attorney, having already come to an understanding of your true concern and your best solution to it, will in all likelihood be quite helpful to your attorney’s own efforts, if, as and when his or her intervention does become necessary.
1. Workplace Safety: When you are asked to return to the workplace, or to otherwise adjust your working conditions, you would be wise to request information about the Covid-related Workplace Safety measures, policies and practices your employer has put into place. These might include those related to (a) masking, (b) office distancing, (c) quarantining, (d) restrooms, common room and elevator occupancy, (e) travel restrictions and requirements, (f) modifiable schedules, and (g) how each will be implemented, supported and enforced. Your communication should be written, respectful and non-adversarial.
2. Accommodations to Your Employer’s Requirements for Health, Personal or Family Needs: If your personal, health or family circumstances suggest it would be helpful, or your health professional directs it, consider requesting an exception, modification or accommodation to (a) where you will be working, (b) its conditions, (c) how you will be working, (d) how frequently you will be doing so, and (e) other relevant conditions of your work. It is usually recommended that you mention the important reasons underlying your request(s), geared toward health, safety and personal or family need.
3. Leaves of Absence: If it makes sense to do so, consider requesting information, forms and procedures needed for you to take a federal law FMLA Leave of Absence, any provided by your state’s laws, or permitted under your employer’s policies. It is usually best that your request be in an email, to that person who serves your employer’s HR function, and simple, straightforward and professional in tone.
4. Emotional and Mental Health Difficulties: “It’s OK to not be OK.” Perhaps like never before, Covid is taking its toll on all of our emotional and mental health. The severe limits imposed on our social interactions, family experiences, and even access to religious worship and the like represent a heavy emotional burden that at times is quite difficult to shoulder. Your employer’s benefit and personal time policies and programs, and state-mandated rights for those who are ill or disabled, should not be overlooked.
A note from a medical professional or licensed therapist attesting to your difficulties, medications and needs strongly suggested; we have a model letter to your medical professional or therapist, noted below.
5. The Disability (Short-or-Long Term) Alternative: If and when physical or emotional illness rises to the level that it limits your ability to engage in certain of your work functions, or your ability to work entirely, do not be afraid to inquire with your employer’s Human Resources or Employee Assistance Program staff, about what disability insurance, programs and/or policies are in place to assist you during a period of such disability. This is especially important in this time of Covid, as altered work requirements place greater than usual daily stresses on each of us.
In this circumstance, too, a note from a medical professional or licensed therapist attesting to your difficulties, medications and needs strongly suggested; we have a model letter to your medical professional or therapist, noted below.
6. False Performance and Conduct Reports: Sadly, during the time of Covid, to limit their overhead and costs of severance (proper on if done correctly), and to avoid the specter of litigation (proper if done correctly), many employers have concocted claims of employee poor performance or misbehaviors (improper, and presumptively fraudulent). If you feel that is being done to you, or has been done to you, you are far from alone, there are defenses and remedies available, and you are encouraged to defend your name, livelihood and reputation.
Among the model memos we offer are three: (i) to respond to an incorrect or false performance review; (ii) one to push back at a Performance Improvement Plan (“PIP”), and (iii) one to defend yourself from a false or misleading allegation of misconduct. See below.
7. Retaliation: In this Covid era, employee reports of legal violations, improper treatment and other prohibited workplace conduct have resulted in an increase in instances of retaliation by managers and executives. If this has happened to you, there are steps to be taken to halt it, or remedy it if it has gone too far.
8. Repayment Obligations: Both during and after the hiring process some employers provide kinds of financial assistance to employees, but require that the employee sign an agreement that requires later reimbursement in certain events. Such assistance usually relates to (i) sign-on bonus, (ii) relocation costs, (iii) tuition assistance, (iv) home-purchase assistance, or (v) loans, and the like. If this is a concern of yours, there are potential solutions available to you.
9. Severance: If you are to be departing your employer – whether voluntarily or involuntarily, (a) for any reason related to Covid, (b) during this Covid time, or (c) due to an intolerable condition or treatment at work, you may be eligible to receive severance payments and benefits. And, if you offered severance, you may be able to negotiate better severance, too, whether better timing of departure, better terms of departure, and better tone of your departure.
10. Resignation, Either Voluntary or Involuntary: Every now and then, employees conclude “It’s just too much for me . . . I’ve got to go.” If (a) you are in that frame of mind, (b) perhaps on a leave of absence and don’t wish to return, or (c) coming off a disability and just too fed up to “go back,” resignation is an option. However, if resigning is done well, it can be of great advantage to you. If you are contemplating resigning, you really owe it to yourself and your family to do it to your best advantage.
You might also consider even “involuntarily resigning,” a concept we have pioneered, that may result in your receiving severance, waiver of repayment obligations, and even eligibility for UIB. There are many advantages to involuntarily resigning, but it needs to be done carefully.
11. Unemployment Insurance Benefits (“UIB”): Whether it is due to firing, layoff or resignation, if you become unemployed you may be eligible for UIB benefits. To be eligible to receive them, you generally need to be (a) unemployed, (b) due to no fault of your own, (c) looking for a job, and (d) available to work. That’s not usually a problem to communicate to UIB personnel, but in the time and context of Covid – especially if you refuse to return to an unsafe workplace, or involuntarily resign – you may need some guidance.
D. How We Help
“What to Say, and How to Say It.”™
• COVID-19 Model Letter A – “What Steps are We Taking to Promote Covid-19 Safety?” With 32 Sample Questions:
This Model Letter is where most employees should begin. It shows you what to ask for, 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.
• COVID-19 Model Letter B – Request for Exception, Modification or Accommodation to Your Employer’s Covid-19 Arrangements and Procedures:
This Covid-19 Model Letter B contains 24 special requests you may make in light of your workplace, your health or your family circumstance, along with the good reasons you can offer to support them. They include, among many others, 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, (6) 14 days of self-quarantine, (7) a change in the way your performance is evaluated, and many more. It shows you “What to Say, and How to Say It.”™
• COVID-19 Model Letter C – Request for Forms and Procedures for Covid-19 Related FMLA Leave of Absence:
When requesting FMLA forms and Disability information, this Model Letter shows you “What to Say, and How to Say It.”
• COVID-19 Model Letter D – Involuntary Resignation:
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.”™
• COVID-19 Model Letter E – To Unemployment Agency Explaining Involuntary Resignation:
This Model Letter is one we suggest you might use in this circumstance. It could make the difference in your being found eligible for Unemployment 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, etc.. Includes a Sample Note for use by your Therapist of Physician.
• COVID-19 Master Guide/Checklist – 100 Steps in a Complete Covid-19 Response:
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 “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:
a 20% discount
• COVID-19 “COMPLETE PACKAGE” – Purchase all of the above Items as one “bundle”:
• COVID-19 PHONE CONSULTATION – Telephone Consultation with Mr. Sklover regarding Your Covid-19 Issues:
60 minutes (or so) by Telephone; evenings and weekends may be arranged.
Ideas, Suggestions, Comments Would Be Appreciated.
The Model Memos and Letters noted above are our best effort to help you address the Covid-19-related issues you face at work. If you have any ideas, suggestions or comments, we’d love to hear from you.