COVID-19 Employment Law Review for Pennsylvania [Q&A]

COVID-19 and the Workplace: Pennsylvania Employment Law Q&A

Have questions about COVID-19 and employment law in Pennsylvania? The coronavirus pandemic has workers everywhere asking important employment law questions. To that end, this blog post answers common questions about your workplace rights amidst COVID-19 and the coronavirus.

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Can my employer fire me if I miss work due to COVID-19?

Like COVID-19, this legal question is novel. Based on existing Pennsylvania and U.S. law, the answer is probably “no.” Most employees in Pennsylvania are “at-will” employees. That means that your employer can fire you at any time and for any reason. However, there are some exceptions to this “at-will” rule in Pennsylvania employment law.

For example, your employer cannot fire you if doing so would violate state or federal public policy. As of now, it is the clear public policy for people with COVID-19 symptoms to stay home. The Centers for Disease Control (CDC) and Pennsylvania Department of Health have issued guidance and orders supporting this. Therefore, it may be a violation of public policy for your employer to fire you because you missed work due to COVID-19. It may also be illegal under the Family and Medical Leave Act (FMLA) to fire an employee with COVID-19 if the illness qualifies as a “serious medical condition.”

Can my employer fire me or require me to stay home because I have a condition that increases my risk of getting COVID-19 or suffering complications?

The answer depends on whether your illness or condition is a “disability” under the Americans with Disabilities Act and the Pennsylvania Human Relations Act. Long-term conditions or diseases like Hashimoto’s thyroiditis, COPD, HIV/AIDS, or cancer are “disabilities” under these laws. These disabilities may increase your risk of both getting COVID-19 and suffering complications. Therefore, if your employer fires or sends you home because your disability increases your risk of getting COVID-19, this may be disability discrimination. In such a case, your employer must reasonably accommodate you so you can still do your job while lessening your risk of getting sick.

According to employment law, can my employer fire me or require me to stay home because old age increases my risk of getting COVID-19 or suffering complications?

No. This would be illegal under the Age Discrimination in Employment Act and the Pennsylvania Human Relations Act. Under these laws, if you are at least 40 years old, your employer cannot discriminate against you. Therefore, it is illegal for your employer to fire you or require you to stay home because your age increases your risk of getting COVID-19.

Can I get FMLA leave if I get the Coronavirus or have to care for a family member with it?

The Family Medical Leave Act (FMLA) requires certain employers to provide protected employees with 12 weeks of unpaid leave to care for the “serious medical condition” of the employee or the employee’s family member. This applies if, for example:

• your employer has at least 50 employees within a 75 mile radius of your primary work site;
• you must have worked at least 1,250 hours in the past 12 months; and
• your leave must be used to care for your own, or a family member’s, “serious medical condition.”

The most common “serious medical conditions” will:

• require an overnight stay in a hospital or medical care facility;
• cause you or a family member to be unable to work or go to school for over three consecutive days and need more medical treatment;
• cause occasional periods when you or your family member are incapacitated and require medical treatment at least twice a year; and
• include pregnancy and prenatal medical issues like morning sickness and bed rest as ordered by a medical doctor.

Therefore, if you or a family member is diagnosed with COVID-19 employment laws may protect you. In particular, if you have a need for medical treatment then you may be entitled to FMLA leave. Although unpaid, this leave will protect your job for up to 12 weeks. However, you may be able to get paid during your FMLA leave by using sick or vacation days. This depends on your employer’s paid time off policy.

What if I am an essential employee and my employer isn’t taking reasonable steps to prevent the spread of the Coronavirus?

The Occupational Safety and Health Act of 1970 (OSHA) covers almost all business in the U.S. Under OSHA, employers must provide their employees with a hazard-free work environment. In the age of COVID-19, this may include taking reasonable steps to prevent the disease from spreading in the workplace. If you believe that your employer isn’t taking reasonable steps to prevent the spread of COVID-19 in the workplace, you can complain directly to the Occupational Safety & Health Administration by submitting an online complaint form.

Do you still have questions about COVID-19 Employment Law?

Call Thomas today at 610-373-8000.

If you are facing a potential employment issue due to COVID-19, contact Kitay Law Offices online or at 888-KITAYLAW for a FREE case review. Our firm partner, Thomas Pivnicny, will discuss your options with you and guide you in the right direction.