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By G. Scott Fiddler and Brooke Leondar

Navigating the Pandemic:

An Employee’s Guide in Uncharted Waters


istory is no stranger to plagues and pandemics that have damaged economies and the ability of workers to earn a living. For Americans, the 1918 Spanish Flu pandemic is the best example. In the span of 18 months, the virus killed 675,000 people in the United States and, much like today, led to the cancellation of public gatherings and professional sporting events. But while the 1918 pandemic might have provided some guidance on the effect on labor of a partial economic shut down, it is of little help from an employment law perspective for a very simple reason: almost all of the employment laws that govern the workplace today were passed a generation or more after the 1918 pandemic and the 1918 Spanish Flu was long forgotten by the time they were passed. Title VII of the Civil Rights Act (1964), the Age Discrimination in Employment Act (1967), the Occupational Safety and Health Act (1970), the Americans with Disabilities Act (1990), the Health Insurance Portability

and Accountability Act (1996), and the Worker Adjustment and Retraining Notification Act (1988) were all passed long after the 1918 Spanish Flu pandemic. In determining how our patchwork of employment laws will apply in this pandemic, and with the exception of only a few amendments to existing employment laws passed in response to the current pandemic, we are in uncharted waters. Having said that, employees are not without rights. This article will identify those rights, which can function as a guide for employees navigating the pandemic. Rights of the Employed The Families First Coronavirus Response Act (“FFCRA”) was passed on March 18, 2020, and became effective April 1, 2020.1 The FFCRA applies to employers with fewer than 500 employees and is in effect until December 31, 2020, unless extended. The FFCRA provides for up to two weeks of paid sick leave through the Emergency Paid Sick Leave Act (“EPSLA”)2, and an additional ten weeks of paid sick leave through the Emergency Family and Medical Leave Expansion Act (“EFMLEA”).3 Under EPSLA, an employee is entitled to up to two weeks of paid sick leave if the employee meets one or more of six qualifying reasons: (1) is subject to a Federal, State, or local quarantine or isolation order related to COVID-19; (2) is advised by a health care provider to self-quarantine related to COVID-19; (3) is experiencing COVID-19 symptoms and is seeking a medical diagnosis; (4) is caring for an individual who meets one of the first two qualifying reasons; (5) is caring for his or her child whose school or place of care is closed due to COVID-19; or (6) is experiencing any other substantially-similar condition specified by the U.S. Department of Health and Human Services.4 For reasons 1 through 3, the employee is entitled to a maximum of $511 per day for a maximum of ten days. For reasons 4 and 6, the employee is entitled to a maximum of $200 per day for a maximum of

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