SPECIAL EMPLOYEE CLIENT ALERT
Surviving As A Restaurant Worker In A Workplace Impacted By COVID-19
By: Hoffman Employment Law
March 23, 2020
The rapid spread of COVID-19 has severely disrupted the restaurant industry, and consequently has cost possibly hundreds of thousands of jobs. However, your legal rights have not been suspended and, in fact, have increased.
This client alert is designed to provide you with some basic information regarding your legal rights in a COVID-19 impacted workplace. For ease of review, we first address currently employed restaurant workers and then turn to the address the issues of terminated restaurant workers.
WORKERS CURRENTLY EMPLOYED
The “Families First Coronavirus Respond Act” (HR 6201) requires that employers of fewer than 500 employees provide two forms of leave benefits to workers (not just restaurant workers): the first is “Emergency Paid Sick Leave,” and the second is a temporary expansion of an existing Federal law, the Family Medical Leave Act (FMLA). We will briefly address each.
Emergency Paid Sick Leave (Section 5101 et seq.)
The Emergency Paid Sick Leave provision of HR 6201 (Division E, Section 5101), provides that each employee should receive paid emergency sick leave (PESL) if the employee is unable to work (or telework) because: (1) The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19; (2) The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; (3) The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis; (4) The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2); (5) The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions; and (6) The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
If you are a full-time employee, you are entitled to receive eighty (80) hours of PESL. Part-time employee PESL is calculated according to the average number of hours you work over a 2-week period. Under HR 6201 (Sec. 5101), there is no carryover of PESL from one year to the next. Once your need for paid sick leave ends, the employer’s obligation to provide PESL will also end. An employer may not require you to use other paid leave before you use the PESL.
If you do not receive PESL, it will be considered a violation of the minimum wage standards of the Fair Labor Standards Act (FLSA), and you may be entitled to recover the leave you were not paid, liquidated damages, and potential statutory attorneys’ fees.
Your PESL pay should be based on your “regular rate” of pay (a defined term under the FLSA, which could include bonuses/commissions typically paid), but it should be no less than the Federal, State, or local minimum wage, whichever is higher. This is true even for servers – your PESL pay should not be $2.13/hour (or $3.63/hour if you are in Maryland), and you are entitled to at least the Federal minimum wage of $7.25/hour (or $11.00/hour for 2020 if you are in Maryland).
PESL, however, is also limited in the amounts your employer must pay you. For the circumstances described in (1)-(3) (above), your PESL is limited to $511 per day and $5,110 in total. For the circumstances described in (4)-(6), your PESL is limited to $200 per day and $2,000 in total.
Note that when you take leave so that you can care for a family member under any of the circumstances described in (4)-(6) (above), your employer is only required to pay you two-thirds of the amount of required compensation.
Emergency Family Medical Leave Expansion Act (Section 3101)
If you previously worked for a smaller employer who was not covered by the FMLA (your employer had less than 50 employees), you may be surprised that this temporary expansion of FMLA may now cover you.
Employers of fewer than 500 employees now will be required to provide leave of up to 12 weeks to employees (and you only need to have worked 30 calendar days to be covered) if the employee is unable to work (or telework), due to a need for leave to care for a son or daughter under 18 years of age, if the school or place of care has been closed, or the child care provider of the son or daughter is unavailable, due to a public health emergency. The term 'public health emergency' means an emergency with respect to COVID-19 declared by a Federal, State, or local authority.
The first ten days may go unpaid, but you may elect to substitute any accrued vacation leave, personal leave, or medical or sick leave for the unpaid leave. After the first ten days, the employer must provide paid FMLA leave, in an amount that is not less than two-thirds of your regular rate of pay based on the number of hours ordinarily scheduled. The limit for the payment is $200/day and $10,000 in total. Generally, the employer must make reasonable efforts to restore you to a position equivalent to the position you held when you first took leave, with equivalent employment benefits, pay, and other terms and conditions of employment. However, job restoration rights are altered from the traditional FMLA requirements: you can be denied restoration if the position you held when the leave commenced does not exist due to economic conditions or other changes in operating conditions of the employer, based on the public health emergency.
Importantly, employers under 50 employees may be exempt from these leave requirements. At this time, the U.S. Department of Labor has not issued regulations to determine which small employers may be exempt. Moreover, healthcare workers may be exempt.
There is also an anti-retaliation provision under the “Families First Coronavirus Respond Act.”
If you have been denied PESL, we can assist you in collecting these monies from your employer.
If you have been denied emergency FMLA, your sole recourse (at this time) will be to file a complaint with the United States Department of Labor.
The U.S. Department of Labor has created this website to assist you with understanding your rights to this law. https://www.dol.gov/agencies/whd/pandemic/ffcra-employee-paid-leave
For additional information prepared by the U.S. Department of Labor regarding FMLA rights, please see https://www.dol.gov/agencies/whd/fmla/pandemic
Maryland House Bill No. 1663, was approved by the governor on March 19, 2020, and gives the Governor the right to prohibit an employer from terminating you solely on the basis that you were required to be isolated or quarantined due to the COVID-19 emergency.
The existence of leave benefits under the “Families First Coronavirus Respond Act” (HR 6201) does not negate your existing paid sick leave rights under Maryland’s sick/safe leave law which became effective in early 2018. In other words, if you have 40 hours of accrued paid leave available to you under Maryland’s sick/safe leave law, you can take this leave and the new paid leave benefits available under Federal law.
If your employer refuses to pay you for paid leave under this law, and terminates you based on your complaint, you may be entitled to sue for “abusive” (wrongful) discharge.
For a “question and answer” on Maryland’s Healthy Working Families Act,” please see https://www.dllr.state.md.us/paidleave/paidleavefaqs.pdf
Generally, seasonal flu and other conditions of a short duration are not considered a disability under the ADA (29 C.F.R. § 1630.2(j); see EEOC: Pandemic Preparedness in the Workplace and the Americans with Disabilities Act). However, complications arising from illness caused by a pandemic influenza virus may lead to the condition becoming an ADA- covered disability. Under the ADA, you are entitled to reasonable accommodations. However, there is no duty to accommodate where you might pose a “direct threat,” as may be the case with COVID-19. The ADA does, however, requires employers to protect your health information and maintain it in a confidential manner.
For a good question and answer on employer obligations under the ADA in a pandemic situation, please see https://www.eeoc.gov/facts/pandemic_flu.html for very useful information from the U.S. Equal Employment Opportunity Commission.
The FLSA requires generally employers to pay employees at least the minimum wage and to pay overtime to all non-exempt employees. Given that many restaurants are struggling at the moment, you may find your employer asking you to:
Concededly, you may not feel that this is the right time to “take a stand” and provoke a fight with your employer regarding any of these (or other) issues. But the law does not require you to do so – you may work consistent with these illegal requirements. Just make sure you keep certain personal records of when these actions occurred. When the crisis is over, we will assist you in collecting the monies that you are owed.
OSHA’s “General Duty” clause requires employers to maintain a safe workplace. It is not year clear what this exactly means for COVID-19, but employer obligations under OSHA in a flu pandemic situation may provide guidance on what you may be entitled to under these circumstances.
Please see https://www.osha.gov/Publications/influenza_pandemic.html for useful information from OSHA about pandemic situations, and https://www.osha.gov/SLTC/covid-19/ for information on general OSHA safety standards for COVID-19.
Even if you are not in a union workplace, you are generally protected under the NLRA. Issues may arise under the NLRA when two or more employees act in concert for their mutual protection as it relates to the terms and conditions of employment.
As applied to COVID-19, an employee may refuse to work based on concerns about contracting a pandemic virus. This might occur if you and other co-workers are forced to work near a sick co-worker or manager.
To be protected by the NLRA, you should act either (i) in concert with at least one other employee; or (ii) on behalf of other employees.
If you have been terminated from your employment, you may have separate legal issues. The partial listing below is designed to provide restaurant workers with some information about their legal rights. If you feel that you have been discriminated or retaliated against in violation of existing laws (including any of the laws listed above), then separate and specific legal guidance may be required.
Your obvious safety net after being terminated (without cause) is to file for unemployment insurance. For a detailed question and answer regarding COVID-19 and unemployment benefits, please see https://www.dllr.state.md.us/employment/uicovidfaqs.shtml (Please note that this information is subject to change depending on the enactment of relief legislation).
As many restaurants are finding themselves having to suddenly close, if you find that you have been laid off, remember that you are still entitled to your last paycheck. If your regular payday has passed without payment, your employer may be liable for your unpaid wages, liquidated damages, and potential statutory attorneys’ fees.
Additionally, many restaurant workers turn a blind eye to their employers’ violation of their rights under the FLSA. If your employer has violated any of your FLSA rights prior to the COVID-19 crisis, you may want to promptly initiate collection of your unpaid wages to insure that you do not lose the right through the passing of the statute of limitations. We can help you collect wages that are due to you. Some employers carry employment liability insurance that can provide coverage under certain circumstances.
Generally, the WARN Act prohibits larger employers from engaging in a “mass layoff” or a “plant closing” without giving 60 days advanced notice. Exceptions from this notice requirement apply to employers in “natural disasters” and “unforeseeable business circumstances.” It is not yet clear if the sudden economic challenges brought on by COVID-19 that are forcing many businesses and restaurants to close fall under the category of “unforeseeable business circumstances.” However, if you feel that you were improperly terminated as part of a mass layoff or plant closing, you should contact us.
4. COBRA (health care insurance continuation)
Generally speaking, employers of 15 or more employees who provide healthcare insurance must provide you with “COBRA” continuation option if they terminate you (except in the case of an employee's gross misconduct) or reduce your hours. The failure of an employer to offer you COBRA may result in the employer being liable for medical bills. For a “frequently asked questions” concerning COBRA rights, please see https://www.dol.gov/sites/dolgov/files/legacy-files/ebsa/about-ebsa/our-activities/resource-center/faqs/cobra-continuation-health-coverage-consumer.pdf
This Client Alert is intended to provide you with general information for issue spotting and quick reference. If you feel that your rights have been violated, please do not hesitate to reach out to us with your questions or concerns as to these and any other employment issues.
Finally, Hoffman Employment Law, LLC recognizes that restaurant workers are some of the hardest workers in America. We have been in the forefront of fighting for restaurant workers. We understand the special trauma that this is causing you. We will continue to be there for the restaurant service industry now and after the crisis is over. We will all get through this.
 Although this client advisory is for servers, it should be noted that employees who are health care providers or emergency responders can be denied PESL.