Everyone by now has heard about the coronavirus. Whether it be through social media, Whatsapp, or the mainstream media, no one really seems to know what it is and how it can be treated. The little we know has become a source of fear and has catered to significant repercussions. The Chinese origins of the virus have catered to a debilitating impact on the Chinese economy, both in mainland China and throughout the Chinese community around the Globe.
The coronavirus or COVID-19 is a serious pneumonia-like virus that can impact your upper-respiratory system. Unfortunately, there are individuals within New York and specifically in New York City who have been confirmed to have COVID-19. If you are an employee within New York City, you need to be aware of your legal rights - specifically, the workplace protections that exist if you or someone you know contracts COVID-19.
What rights do you have if you have COVID-19?
Employee Rights Under Federal Law
The Americans with Disabilities Act (“ADA”) makes it illegal for an employer to refuse to hire, fire, demote, reduce pay, reassign, or otherwise deny workplace benefits or perks to an employee simply because that employee is disabled in some way. The ADA defines a disability as a physical or mental impairment that substantially limits one or more major life activities. The ADA requires that employers provide reasonable accommodations to employees who they know have physical or mental limitations. An accommodation is an adjustment to the workplace that allows a disabled employee to perform his or her job. Thus, in the event that your COVID-19 infection causes you to be substantially limited in a major life activity such as “breathing,” you may be able to seek a reasonable accommodation in the forms of working from home or medical leave. When making a decision as to the specific accommodation, the employer is required to engage in an interactive process to determine how they can reasonably accommodate you.
You may also qualify under the federal Family and Medical Leave Act (“FMLA”) which provides up to 12 weeks of unpaid job-protected leave for a “serious health condition” that renders you unable to work. You are eligible for FMLA leave if you have worked for your employer for at least 12 months and have worked at least 1,250 hours over the past 12 months. The FMLA applies to various employers including public agencies as well as any company that employs 50 or more employees within a 75-mile radius.
Employee Rights Under New York State and New York City Law
In New York, the New York State Human Rights Law and the New York City Human Rights Law both provide broader protection for your disability, in that the condition does not have to impair a major life activity to be considered a disability.
Within New York City, under the NYC Paid Safe and Sick Leave Law, you may be entitled to up to 40 hours of sick leave every calendar year. Employers with five or more employees who are employed for more than 80 hours a calendar year in New York City must provide paid sick leave. Employers with fewer than five employees must provide unpaid sick leave.
Lastly, pursuant to the New York State Paid Family Leave Law (“NYPFL”), you may qualify for leave if you need to care for a family member with COVID-19. However, leave under the NYPFL Law may not be used for your own serious health condition.
What rights do you have if you want to work from home to avoid COVID-19?
There is no affirmative right to work from home. Many large employers have now incorporated unlimited paid time off (PTO) and the ability to work from home. The employer is free to change their policy at any given time, but you just have to make sure it isn’t just unreasonably and unlawfully targeted at you. Many employers such as Microsoft and Twitter are encouraging their employees to work from home in the wake of COVID-19. In the event your company does not permit you to work from home, there may be other qualifying reasons (such as pregnancy or other health considerations), that require them to offer you an applicable leave or accommodation.
What should I do if I am treated unfairly because of COVID-19?
If you are treated unfairly after availing yourself of workplace protections mentioned above, you may be entitled to compensation. In addition to any retaliation you may face as a result of your request for medical leave or accommodation by your employer, there has been a significant rise in national origin and race discrimination towards individuals of Chinese origin or of Asian descent. National origin and race discrimination are unlawful under Federal Law, specifically Title VII of the Civil Rights Act of 1964, and the New York State and New York City Human Rights Law. If you find yourself in a situation where you are being treated unfairly, you should formally complain to your human resource department citing the specific form of unlawful discrimination you are experiencing. It is also important to preserve a copy of your complaint in the event you need to pursue a legal claim against your employer.