Employment Questions & Answers
The COVID-19 pandemic presents uncharted territory for school districts, unions and educators. The following are responses to FAQs from WEAC members related to the reopening of schools. Please see, Know Your Rights, Educator FAQs on Reopening Schools, for more detailed responses and additional FAQs. Members are also encouraged to contact their local leaders and regional staff if they require more specific advice.
- I have an underlying medical condition that puts me at high risk of COVID-19 complications, and I am nervous about returning to school, what rights do I have? Employees with high risk medical conditions can seek accommodations under the Americans with Disabilities Act (ADA). An employee seeking an accommodation must request it (preferably in writing) and will likely be asked by the employer to provide documentation from a physician supporting the employee has a disability under the ADA that requires accommodation. The employer is required to engage in an interactive process with the employee to explore reasonable accommodations. An employer can deny a request for a reasonable accommodation if it can show that providing it would pose an undue hardship to the employer. If a request for accommodations is denied, ask the employer for the specific reason for the denial in writing and report the denial to your local union or UniServ Director.
- I am at high risk of COVID-19 complications because I am an older employee, what rights do I have? Age does not entitle an employee to stay home or to request accommodation. While the Age Discrimination in Employment Act (ADEA) prohibits discrimination against employees age 40 or older, it does not include a right to reasonable accommodation for older workers due to age. With that said, employers could voluntarily agree to provide accommodations to older workers who request them. Furthermore, under the ADEA, an employer must give older employees similar accommodations to those provided to similarly situated younger employees. This means if an employer provides job modifications for other employees, such as telework, changes to work schedules or assignments, and leave, based solely on those employees’ fears of contracting COVID-19, the employer must also provide similar accommodations to older employees who request them.
- I am pregnant and am concerned about returning to work for in-person instruction during the pandemic, what rights do I have? Pregnancy by itself does not entitle an employee to stay home or an Pregnancy alone is not a disability under the Americans with Disabilities Act (ADA); however, pregnant employees may request accommodation if they experience pregnancy-related conditions that qualify as disabilities under the ADA, such as gestational diabetes. Women affected by pregnancy, childbirth and related medical conditions must be treated the same as others who are similar in their ability or inability to work. This means that a pregnant employee may be entitled to job modifications, including telework, changes to work schedules or assignments, and leave to the extent provided for other employees who are similar in their ability or inability to work.
- I have a mental health condition that is causing me difficulty coping with the stress of the pandemic. What rights do I have? Employees with mental health conditions that qualify as disabilities under the Americans with Disabilities Act (ADA) may request reasonable accommodations. Mental health conditions are treated the same as disabling physical conditions under the ADA. An employee seeking an accommodation must request it (preferably in writing) and provide certain documentation supporting the request for the accommodation if requested by the employer.
- Someone in my household has a high-risk condition and I’m concerned about exposing them to COVID-19 by returning to work. What rights do I have? The Americans with Disabilities Act (ADA) does not require accommodations under these circumstances. However, employees may have leave available to care for a disabled family member. Under state and federal Family and Medical Leave Act (FMLA) laws, employees are entitled to unpaid leave to care for the serious health condition of specified family members. Under the Families First Coronavirus Response Act (FFCRA) employees are entitled to paid leave when caring for someone who is subject to a quarantine/ isolation order. Employees may also request a leave of absence from the employer to care for a family member even if one of these laws does not apply. The employer could voluntarily agree to grant the request for leave, though it would not be obligated to do so.
- What should I do if I contract COVID-19?
- Stay home and report your absence using the standard procedure at your workplace. Even if you are working from home, you should contact your supervisor by telephone or email. If you are at the job site, you should go home immediately after informing your supervisor. Your employer can require you to stay home if you are reporting COVID-19 symptoms.
- Cooperate with inquiries from your employer about your symptoms and coworkers with whom you have been in “close contact” within the prior two weeks.
- Contact your primary care physician for a diagnosis and treatment. You should be ready to provide proof to your employer that you are infected with COVID-19. You will also need a medical diagnosis to access benefits under the Families First Coronavirus Act (FFCRA). In addition, you should ask your doctor to provide an opinion on whether you contracted the virus at work.
- Contact your union and human resources about available leave under the FFCRA, state and federal Family Medical Leave Acts (FMLA) and district policy.
- Monitor your symptoms and stay home until you meet the criteria to end home isolation. Inform your employer when you have a return date. Your employer may require a doctor’s note certifying fitness for duty.
- Contact your union representative if you have any questions or concerns about how your employer is responding to your medical crisis.
- What leave am I entitled to if I contract COVID-19? Full-time employees are eligible for two weeks of Emergency Paid Sick Leave (EPSL) under the Families First Coronavirus Response Act (FFCRA). (Part-time employees are entitled to a pro-rated leave amount). During this time, you will be paid your regular rate of pay (up to $511 per day). You should request to take EPSL first before using any accrued sick leave. If your recovery time outlasts any available paid leave, contact human resources to ask for leave under the Family Medical Leave Act (FMLA) or for a medical leave of absence.
- Will I be entitled to worker’s compensation if I contract COVID-19 at work? You may be eligible for worker’s compensation, but only if a doctor will certify to a reasonable degree of medical probability that you contracted the virus during the course and scope of your employment. This will be difficult to prove. Be prepared to provide your doctor with a list of your close contacts with all people in the prior two weeks, any information you have about the presence of the COVID-19 in your school, and the steps you have taken outside of work to prevent infection.
- What leave am I entitled to if I am caring for someone who is under quarantine or told to self-isolate because of COVID-19? You may use two weeks of Emergency Paid Sick Leave (EPSL) under the Families First Coronavirus Response Act (FFCRA) to care for an individual who is unable to care for him/herself and depends on you for care (no particular familial relationship is required). Employees using EPSL will be compensated at two-thirds of the employee’s regular rate of pay up to a maximum of $200 per day. Part-time employees are entitled to EPSL equal to the number of hours they work, on average, over a two-week period. Employees may be entitled to additional leave under the Family Medical Leave Act (FMLA) if the person they are caring for is a spouse, parent, son or daughter.
- Am I eligible for leave if I am unable to work because I need to care for my children whose school/childcare is not open for in-person instruction/care due to COVID-19? Employees may use two weeks of Emergency Paid Sick Leave (EPSL) under the Families First Coronavirus Response Act (FFCRA) to care for a son or daughter under the age of 18 under these circumstances and will be compensated at two-thirds of the employee’s regular rate of pay up to a maximum of $200 per day. Part-time employees are entitled to paid leave equal to the number of hours they work, on average, over a two-week period.
Beyond this, employees are entitled to an additional 10 weeks of leave under the Emergency Family Medical Leave Act (EFMLA) which is also paid at two-thirds of the employee’s regular rate of pay up to a maximum of $200 per day ($10,000 aggregate). For part-time workers, pay for EFMLA leave is calculated by averaging the number of hours worked, per day, over the previous six months. Employees are to provide the employer with notice of the need to use EFMLA leave to the extent it is foreseeable
- Will I be informed if a student or staff person in my school is diagnosed with COVID-19? The CDC recommends that school districts coordinate with local health officials to communicate about possible COVID-19 exposure. School districts will not name the individual diagnosed as they are required to maintain the confidentiality of this information under state and federal law. If you were in close contact with the student you will also be contacted by the local health department with information and recommendations.
- My employer is asking me to sign a waiver releasing the district from liability if I contract COVID-19, should I sign? Hold off on signing any such waiver and immediately provide it to your UniServ Director for review. Such a waiver is almost certainly ineffective. In the vast majority of cases, worker’s compensation would provide the only means of relief for employees who contract COVID-19 at work, and worker’s compensation rights cannot be waived. Likewise, rights under state workplace safety laws cannot be waived. That the employer is asking employees to sign such a waiver suggests that it cannot provide a safe workplace, as it is required to do by law. Employees should work with their unions on responding to and communicating externally about the employer’s apparent acknowledgement that it cannot provide a safe environment for students and staff.
- Can I refuse to return to work because of concerns for my safety related to COVID-19? Under the Public Employee Safety and Health Law, Stat. § 101.055, an employer cannot discharge or otherwise discriminate against a public employee because the employee “reasonably refused to perform a task which represents a danger of serious injury or death.” Whether the refusal was “reasonable” is key in determining if an employee is protected from discharge or discrimination under this law. A refusal to work under conditions where the employer has implemented all CDC recommendations, is not likely to be deemed reasonable. However, a refusal to work where the employer has ignored such guidelines could be deemed reasonable. In addition, the task that the employee is being asked to perform must present “a serious danger of injury or death.” This may be difficult to establish in the context of COVID-19 and would depend on the circumstances.
Furthermore, employees who, in concert, refuse to work because of their good faith belief that the tasks they are being asked to perform are dangerous, may have protections from retaliation by the employer under the Municipal Employment Relations Act (MERA), Wis. Stat. § 111.70. This issue has not directly been addressed by the Wisconsin Employment Relations Commission, the agency that enforces MERA. However, the National Labor Relations Act (NLRA) does provide such protections, and decisions under the NLRA may guide the decision making of the WERC.
A refusal to work should be an absolute last resort and can have severe employment consequences. Efforts should be made through your union to persuade the employer to adopt standards that make employees feel safe before refusing to work. Be sure to consult with your UniServ Director before refusing to work so that the specific circumstances of the refusal can be reviewed and analyzed.