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COVID-19 AND THE PENNSYLVANIA EMPLOYEE
Questions & Answers

At Wusinich, Sweeney & Ryan, LLC, we are pleased to help the Pennsylvania employee through this difficult time.

Edward C. Sweeney

For twenty years, Attorney Edward Sweeney has litigated employment cases involving disability coverage, unemployment benefits, work injuries, the Americans with Disabilities Act, the Family and Medical Leave Act, and Social Security Disability. Mr. Sweeney also represents employees who have been terminated in evaluating whether they have a legal cause of action and/or in severance agreement negotiations. He is available for consult to meet your legal needs.

If you work in Pennsylvania, here are answers to common legal questions regarding Covid-19 based on the law that existed before the recently passed law by President Trump and Congress known as the Families First Coronavirus Response Act (FFCRA).

This page was created before the effective date of the FFCRA. It is devoted to the law that existed before the FFCRA. This law is not replaced by the FFCRA. You can still use it for guidance regarding non-FFRCA benefit entitlement. For guidance on common legal questions about the scope and coverage of the FFCRA, please see my associated web page: Coronavirus-Lawyers.net

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If I am laid off, but unaffected by Covid-19, what happens and what should I do?

A Pennsylvania employee who is laid off is eligible for unemployment compensation. The employee should immediately apply for unemployment benefits. The easiest way to do this is on-line. Here is a link that will enable you to apply: https://www.uc.pa.gov/unemployment-benefits/Pages/default.aspx An application can also be filed on the statewide unemployment compensation toll-free number at 1-888-313-7284.

If I am infected by Covid-19, can I seek wage replacement benefits? If so, where?

The FFCRA provides the most direct and easiest benefit to access. However, the answer to this question has several facets if one looks at benefits outside the recently passed FFCRA:

a. Will this be considered a work injury in Pennsylvania? Yes. In order to receive benefits under Pennsylvania’s occupational disease law, the disease has to be sustained at work. To claim as a work injury under Pennsylvania’s Workers’ Compensation Act (WCA), two provisions of the WCA may apply. Both sections should be pursued in any litigation.

The most likely avenue for success is Section 301(c)(1). Under the landmark case Pawlosky v. W.C.A.B., the Pennsylvania Supreme Court has liberally interpreted the definition of “injury” under Section 301(c)(1) of the Pennsylvania Workers’ Compensation Act to include all diseases. Originally, the Act was limited to carefully enumerated diseases in the Act under Section 108. While there was a catch-all provision under Section 108(n), the standard for relief was, as a practical matter, difficult to obtain (e.g., the disease was causally related to the industry or occupation in which the Claimant was engaged and when the incidents of that disease in that occupation or industry were substantially greater than in the general population).

The challenge for the employee is to have persuasive supporting evidence that proves the employee caught Covid-19 at work. As a practical matter, it may be easier for the employee to proceed with a private disability claim.

b. Will my infection by Covid-19 be considered a disability under my individual or employer disability policy? Probably, if you are out long enough. While each policy is potentially different, most policies cover illnesses after a waiting period if the employee is able to work their regular occupation. A standard disability policy has a waiting period of at least seven (7) days. As this is a fact-specific question, and many policies have different provisions, you should consult a lawyer about whether you are eligible for disability benefits.

c. Will my disabling Covid-19 stop me from claiming unemployment benefits? Yes, in most circumstances. Unemployment compensation is not designed as a disability insurance. Accordingly, you cannot be totally disabled and receive unemployment compensation. If you are too sick to work, you will not receive unemployment compensation.

However, there may be circumstances where you are not too sick to work and you miss time because of the Employer’s actions, not your own illness. There may be some people that lose time from work because of a slowdown in economic activity. See below. This presents a different circumstance and you may be eligible.

Can an Employer prevent me from taking leave to care for others who are close to me who are affected by the virus (even when I am not affected)?

It depends on whether the impacted individual falls in a close familial category. Under the Family and Medical Leave Act (FMLA), you generally will be protected if the virus constitutes a “serious health condition” and you need leave to care for a child, spouse, or parent. The rules are technical but you will likely be entitled to leave. However, the FMLA does not permit you to take leave to care for other individuals who you might feel the law should apply to such as significant others (non-spouses), boyfriends or girlfriends, aunts, uncles, grandparents. There may be special rules applicable to nurses and First Responders that apply.

Questions under both laws tend to be technical and you should consult an employment law attorney to answer your fact-specific question.

Can I seek unemployment compensation if I am not infected but my Employer tells me not to come in to work or reduces my hours?

There may be some people that lose time from work because the Employer, while not firing you, does not call you in to work. If the Employer tells you not to show up, or cuts your hours back, you will be eligible for full or partial unemployment compensation benefits. An employee can file for and receive unemployment compensation in these circumstances. An employee’s hours that are cut off or cut back can receive unemployment. You should file for unemployment compensation immediately.

Can my employer fire me because I have Covid-19?

Possibly, but you may have grounds to sue. The FFCRA, as explained in my FFCRA web page, may be a successful avenue for pursuing claim where you have Covid-19.

Under the Americans with Disabilities Act, only more-than-temporary illnesses are covered. However, the Employer is not supposed to fire you because the Employer perceives you to have a disability or have a record of having a disability.

An Employer could argue that it has the defense that Covid-19 creates a direct threat to other workers. The ADA defines “direct threat” as “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” 42 U.S.C. Section 12111(3). In the regulations interpreting the “direct threat” issue, the Equal Employment Opportunity Commission (“EEOC”) has stated that direct threat “means a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” 29 C.F.R. Section 1630.2(r).

While the results are uncertain under the ADA, the law is stronger for the employee under the Family and Medical Leave Act. Employees who are protected under the Family and Medical Leave Act have the right to take off from work for a “serious illness.”

Questions under both laws tend to be technical and you should consult an employment law attorney to answer your fact-specific question.

Does my employer have to accommodate me by allowing me to work at home if I am not infected by Covid-19?

In most cases, no, under the law before the FFCRA. Uninfected employees are not covered by the relevant laws (Americans with Disabilities Act and the Family and Medical Leave law and the state law equivalents) that would prevent the Employer from requiring them to come to work. If you do not come to work, you could be disciplined or fired. If you are fired, you may be denied unemployment compensation benefits because you committed willful misconduct in not coming to work. There are unique rules under the FFCRA which may give employees who are not infected the ability to work at home for a moderate duration of time.

Do employees who have a particular underlying medical condition that constitutes an ADA-protected disability have the right to seek accommodation by working at home even if they are not infected?

Yes, very possibly. Examples might be lung disease, cancer, diabetes, heart disease, or disabilities that make you more susceptible to disease. Some underlying disabilities which do not prevent an employee from usually coming to work might become significantly worse with exposure to Covid-19. An employee can argue that coming to work would risk serious illness or death and can argue, if the job can be done from home, that such an accommodation is necessary.

Does my employer have to give me FMLA leave if I am infected by Covid-19?

Yes, subject to some important criteria, you may be protected for up to 12 weeks of time. However, many small-to-moderate-sized employers are not covered by the FMLA, those with under 50 employees within 75 miles. Once again, your eligibility for FMLA leave needs to be discussed with a lawyer because the rules are technical. Under the FFCRA, as I explain elsewhere, you also may get two weeks paid time off from the Employer.

If I am laid off, will I be eligible for a severance package?

Yes, in most cases if an Employer has a severance plan. Under the Employee Retirement Income Security Act, the Employer has to pay you severance under whatever plan has been pre-established.

If I am laid off, can I sue or seek additional severance or benefits in my severance agreement?

The willingness of an Employer to pay more depends upon the facts and circumstances of your termination. It is prudent to discuss the grounds for your termination with an experienced employment litigator before you enter into any severance agreement.

If I get Covid-19, can I go on Social Security?

Probably not in most cases. It is important to remember that Social Security is not for people who are temporarily disabled. One would have to have an illness that is very serious and of a long-standing nature to qualify for Social Security Disability benefits. The rule of thumb is the disability has to be expected to last more than 12 months and you must be permanently, and not partially, disabled to receive such benefits. Very serious cases of Covid-19 may qualify if the projected recovery period is going to be over 12 months. Moreover, one might be able to get Social Security Disability benefits if the illness is terminal.

If I was injured in a work injury and am currently on work-related restrictions, and get laid off for Covid-19, can I receive workers’ compensation benefits even though the layoff has nothing to do with my work injury?

Yes. Pennsylvania workers’ compensation law provides that an employee can seek to reinstate his eligibility for full workers’ compensation benefits in this scenario.

We have experience dealing with similar employee rights issues, including disability, Americans with Disabilities Act, Family and Medical Leave Act (FMLA), and accommodation issues.

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This is a brief primer on major issues an individual working in Pennsylvania is likely to face. This summary is meant to be a guide only. Our firm would encourage that your specific scenario be addressed through a call to our firm.