Employee Advice from Nate and Lisa in the Age of COVID-19

Workers—and now many former workers—have been hit hard by the Coronavirus (COVID-19) crisis. Layoff numbers are unprecedented and terms like furloughstimuluspay-check protection, and unemployment are uttered regularly. What does it mean for you, however, if you just lost your job, if you or a family member are sick such that you cannot work, or if you are now in a unique employment predicament?

This article will attempt to address a few common issues that employees and other workers may be facing in the age of COVID-19, particularly in Western Massachusetts.

I just got laid off, or furloughed. What do I do next?

In most cases, your question is about receiving unemployment insurance benefits, i.e., “getting on unemployment.” Fortunately, through a variety of new state and federal initiatives, many people are eligible for weekly unemployment checks who might not have been so even one month ago. Most employees who get fired or laid off can still receive unemployment. And coverage now extends to others—such as furloughed employees, independent contractor (1099) workers, those who were just getting ready to start a new job, gig-workers, and certain self-employed individuals—who had previously been denied. Moreover, the federal government has now sweetened the benefits pot by adding an additional $600 per week to the unemployment checks of many individuals, and lengthening the number of weeks you can receive payments.

Unfortunately, the Massachusetts Department of Unemployment Assistance website—your gateway to filing your application for benefits—has been understandably slow in processing new applications, particularly for those individuals who might not have been covered previously. Our advice: (1) keep trying; (2) if you get stuck with an application (and live in Hampshire or Franklin Counties) reach out to our friends at MassHire; and (3) if you have been denied benefits, or otherwise find yourself headed to an unemployment hearing, contact us. We are here for you.

What can I do if I was fired in a discriminatory manner, e.g., because I am Asian, European, or believed to be from another country? What if my employer is harassing me?

Employment discrimination comes in many forms. One insidious form in the age of COVID-19 is making assumptions about people because they are, or are assumed to be, from another country, particularly China, Singapore, Italy, or another area of Asia or Europe. Bias by employers on the basis of race, color, or national origin is always illegal. If you believe that you have been the victim of such assumptions or have suffered adverse employment actions, including a demotion or termination because of such discrimination or harassment, contact us immediately.

Should I quit my job if I think it is unsafe to work there or because I’m needed (or better off) at home? And if so, will I receive unemployment?

The decision about whether to quit, or resign from, a job is quite complex and individualized. It often depends on the particular employer, your specific job, how long you have been there, and other factors. Broadly speaking, you will not receive unemployment insurance benefits if you resign. But there are exceptions, e.g., if you were transferred hundreds of miles away. There are also certain, very limited, exceptions for “harassed” employees. And, as noted above, a few new programs have also extended unemployment benefit protection to previously uncovered individuals.

In many instances, however, it may be wise to simply have a conversation with your boss. For example, if you have a compromised immune system, you are likely protected by the Americans with Disabilities Act (ADA). Also, if you have to care for yourself, or a family member, if you have worked at your job for an extended, regular period of time, and if your employer has more than 50 employees, your job (though not necessarily your pay) is likely protected by the Family and Medical Leave Act (FMLA). Moreover, the FMLA was just temporarily expanded by Congress, effective April 1, 2020, to allow for additional periods of paid sick time, and paid family leave, even for smaller employers and new employees. Finally, you might not know it, but your employer might be deciding to keep employees on the payroll, and not working, because they are applying for a forgivable “paycheck protection” loan from the federal government’s CARES Act stimulus program. A candid chat with your employer, in many instances, will go a long way towards finding a solution.

Understandably, however, there are lots of times when a conversation with your employer might do more harm than good. You might want to protect private medical information. You might fear retaliation. Or you might be harassed. If you are unsure about the next step, a good employment lawyer should be able to point you in the right direction. If you want to set up a consultation about your particular situation—before you quit—please contact us right now.

Do I qualify for sick leave?

Good news. Until recently, the answer to the question of sick leave protection was often no, unless your employer offered a clear and specific sick leave benefit. Fortunately, in 2015, Massachusetts passed a groundbreaking Earned Sick Time law that provided state-required benefits to many previously uncovered workers. See this post. Effective April 1, 2020, moreover, all employees of private employers with fewer than 500 employees are temporarily eligible (through December 31, 2020) for two weeks of paid sick time for specified reasons related to COVID-19. Similarly, workers employed for at least 30 days are eligible for up to an additional ten weeks of paid family leave to care for a child under certain circumstances related to COVID-19.

My employer is not abiding by stay-at-home orders, or is similarly threatening to fire me even though I am trying to abide by the rules and medical guidance. What can I do?

In addition to possible ADA, FMLA, and other statutory protections, you might have a claim for what is loosely called “wrongful termination in violation of public policy.” For example, if your business is clearly not “essential”—such that the governor has ordered it not to open—yet your boss says you must come in, then she or he could be violating your rights. If you are then let go, you can apply for unemployment. You might also have a lawsuit. Finally, if health and safety is a concern, you might have a claim under the Occupational Safety & Health Act of 1970 which is administered by the Occupational Safety & Health Administration (OSHA).

Nate Olin and Lisa Lippiello are here for you.

If you need an employment lawyer, there is always no initial charge to call or email us at Olin Lippiello LLP to see if we can help you or at least point you in the right direction. Attorney Nathan Olin (nate@oliplaw.com) represents employees almost exclusively and has dedicated his career to that task. He has decades of experience at some of the highest levels of throughout Massachusetts and Connecticut. Attorney Lisa Lippiello (lisa@oliplaw.com) has similarly devoted her entire career to representing people in the areas of criminal law, harassment representation, and personal injury. We can easily work remotely and are only a phone call (413-203-0010) or email (contact@oliplaw.com) away.