This Legal Alert addresses 1) temporary expanded unemployment benefits; and 2) updated guidance from the Equal Employment Opportunity Commission regarding disability discrimination and the COVID-19 pandemic. You may view all previous alerts on the COVID-19 Update Page of our website.
Federal Pandemic Unemployment Compensation
The CARES Act stimulus package outlines two temporary programs related to unemployment benefits.
What is Pandemic Unemployment Assistance (“PUA”)?
The Federal PUA program provides unemployment compensation for workers who traditionally are not eligible for such benefits, including self-employed individuals, independent contractors, individuals seeking part-time employment, and those with limited work history. A recipient must not be eligible for regular unemployment benefits under federal or state law and must self-certify that they are otherwise able to work but unable to do so for reasons related to the impacts of COVID-19. PUA is available for the period between January 27, 2020 and December 31, 2020.
What is Pandemic Unemployment Compensation (“PUC”)?
Under the Federal PUC program, eligible individuals who are collecting regular unemployment insurance benefits or PUA will receive an additional $600 per week from March 29, 2020 through July 31, 2020. In addition, those who have exhausted their unemployment benefits may receive up to 13 weeks of additional benefits.
Maryland Unemployment Insurance Benefits
The Maryland Department of Labor enacted new measures related to unemployment insurance benefits due to Governor Hogan’s declaration of a state of emergency and the enactment of the Federal CARES Act.
What are these new measures?
Normally, unemployment insurance benefits in Maryland are available for 26 weeks. Effective March 29, 2020 through December 31, 2020, Maryland will provide 13 additional weeks of unemployment insurance benefits for a maximum of 39 weeks of benefits for eligible workers.
For all current and new unemployment insurance benefit recipients, the work search requirement has been waived for a 10-week period beginning on March 20, 2020.
An employer with 25 or more employees affected by a COVID-19-related layoff or shutdown may utilize Maryland’s Unemployment Insurance Bulk Claim Service. This Service eliminates the need for employers to complete a Request for Separation Notice for each employee individually. The employer can work directly with the Division of Unemployment Insurance to process bulk claims.
The U.S. Equal Employment Opportunity Commission (EEOC) recently re-issued its pandemic guidance, originally issued during the H1N1 influenza pandemic in 2009, to reinforce that the Americans with Disabilities Act (ADA) and the Rehabilitation Act still apply during the COVID-19 pandemic. The previous guidance has been updated with specific references to COVID-19 consistent with recommendations of the Centers for Disease Control (CDC). In applying these principles, employers also should keep in mind the laws prohibiting discrimination on the basis of other protected classifications such as age, race, and national origin.
Can I ask any questions of employees who call out sick?
In general, the ADA prohibits disability-related inquiries or medical examinations of current employees unless the inquiries or examinations are job-related and consistent with business necessity. This standard is met, for example, when the employer has a reasonable belief that the employee’s ability to perform essential job functions will be impaired by a medical condition or that the employee poses a “direct threat” due to a medical condition. Based on guidance of the CDC as of March 2020, the COVID-19 pandemic meets the “direct threat” standard.
Accordingly, if an employee calls out sick, the employer may ask questions related to the employee’s symptoms to determine if they may have COVID-19. These symptoms currently include fever, cough, and shortness of breath. The ADA confidentiality requirements continue to apply to the employee’s medical information at all times.
If an employee exhibits symptoms of COVID-19, may I keep the employee out of the workplace?
Yes. Although the ADA generally prohibits employers from excluding individuals with disabilities, including “perceived” disabilities, from the workplace for health or safety reasons, exclusion is permitted if the employer reasonably believes, based on objective evidence, that the employee poses a “direct threat.” An employee with a diagnosis of COVID-19 or symptoms associated with it would meet this test.
During the pandemic, may an employer take employees’ temperatures to see if they have a fever?
Although taking an employee’s temperature normally would be a prohibited medical examination, it is permitted under the “direct threat” exception because the CDC and other public health authorities have acknowledged community spread of COVID-19. However, some people with the virus do not have a fever.
May employers require a doctor’s note certifying fitness for duty before allowing employees who have been sick to return to the workplace?
Yes, such inquiries are permitted under ADA generally. As a practical matter, however, employers may need to be willing to accept other types of documentation during and immediately after the current pandemic.
What are some examples of pandemic-related accommodations that an employer might be required to provide unless they pose an undue hardship?
During the pandemic, employees with disabilities that put them at higher risk of contracting the virus (such as certain underlying health conditions) might request to telework as a reasonable accommodation. Employees with disabilities who are required to telework might request the employer to provide special equipment or other accommodations in order to enable them to work remotely. If employees are required to wear personal protective equipment in the workplace, an employee may request non-latex gloves due to an allergy or a gown that accommodates wheel chair use.
Please contact Steve Metzger, Sydney Fortmann, Kathy Hoskins, Saul Gilstein, or another member of the firm’s Employment Practice Group if you have any questions or require assistance addressing issues related to the COVID-19 pandemic.
This client alert is for informational purposes and is not legal advice. The COVID-19 crisis has created a very fluid situation, in which changes to the law or related guidance can occur on a daily basis. Please contact your legal advisor for assistance before acting in relation to the subject of this client alert.
Philip F. DiamondPartner
A member of Gallagher's Real Estate and Business Transactions group, Phil Diamond assists the firm's clients in renewable energy finance and development and in structured and public finance transactions, as well as in general corporate and contract matters. Phil has also worked closely with Gallagher's Litigation Group in health care administrative proceedings and in various workouts and settlements related mainly to corporate and public finance transactions.