One question that has arisen regarding this outbreak is can employers be liable if their employees contract the coronavirus? The Occupational Safety and Health Act has a general provision requiring employers to provide a safe working environment for its workers. That provision requires employers to provide a place of employment which is free from “recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” See OSHA website here. OSHA has not released specific coronavirus standards, yet. It is clear the COVID-19 virus is apparent enough today that the employer’s general duty will apply.

Employers should follow general advice from The Center for Disease Control and from OSHA regarding the coronavirus. The latest guidance from the CDC recommends working from home when possible and avoid gatherings of more than ten people. Workers should sit or work six feet from each other.

For businesses that are open, the employers can request additional information from employees about their health status, if they are showing symptoms. The employer can require the worker to stay home if s/he shows symptoms. One law professor says an employer could become liable if the employee can show s/he contracted the virus at work. That would, however, be a difficult showing, since the coronavirus has become so ubiquitous. See ABA Bar Journal report here for more information.

As we used to say in Iraq, Be Safe.

These are trying times, by any standard. This veteran of Iraq is starting to have war flash backs. If your employer is not taking precautions for the coronavirus, can you as an employee do anything about it? Yes, any worker can discuss with another worker any “term and condition” of the  job. That protection comes from Sec. 7 of the National Labor Relations Act. I previously wrote about that protection here. So, yes any two or more workers can discuss the lack of protections at work.

Yet, Amazon fired an employee who spoke openly at its New York warehouse about inadequate protections at work. See New York Post report here. Chris Smalls lead a walk-out at the Amazon warehouse on Staten Island. Amazon admits it fired Chris Smalls, a management assistant. But, the employer claims it fired him because he was not observing social distancing. But, it was just last week that workers walked out of the warehouse over concerns after a co-worker tested positive for COVID-19. Mr. Smalls was then fired the following Monday. Mr. Smalls was one of the leaders of that walk-out. The National Labor Relations Board will very likely investigate. Just based on timing alone, Amazon will have a very difficult case. Mr. Smalls had worked at the warehouse for five years before he was fired.

As we used to say in Iraq, Be Safe.

David Lat has been transferred out of the ICU. He has been taken off the ventilator. The founder of the Above the Law blog appears to be doing much better. His condition is serious but stable. He still needs an oxygen machine, but has progressed to solid foods. He  See the ABA Bar Journal report here.

Attorney David Lat, founder of the Above the Law blog, has contracted coronavirus. He is in critical condition and has been placed on a ventilator. He lives in New York and has been prescribed the malarial drug, chloroquine and azithromycin. Mr. Lat is a very healthy person normally, who has participated in two marathons. He is 44 years old. See ABA Bar Journal news report.

Be Safe.

A lot of folks have been laid off in the past week. We know this, because claims for unemployment have skyrocketed. In 2019, some 13,600 Texans applied for unemployment each month, back when the economy was doing very well. This week, 155,657 Texans have applied for unemployment. That is an 800% increase. See Texas Tribune report. In 2008-2009, during the Recession, the largest number of claims amounted to 55,000 in one month.

As I mentioned before, 26 weeks is the maximum unemployment benefit period. But, the bill which was passed last week will add  another 26 weeks, if the unemployment rate rises 10% or more. See my prior post about that first bill  here. It does seem certain that the unemployment rate will rise quite a bit. We may blow past that 10% requirement, unfortunately.

As we said in Iraq, Be Safe.

Gilbert Garcia, a wonderful writer at the San Antonio Express News has penned a column about the coronavirus and working from home. He writes about the experience and what we learn from working from home. His column suggests we learn that many workers fear being away from work and being out of the loop. But, for many workers, the experience will likely have a very different lesson: that working from home is doable. In so many discrimination lawsuits, persons with disabilities have been told they cannot work from home, even when practical considerations suggest otherwise. Many requests for accommodation ask to work from home either full-time, or simply some of the time. Employers typically argue that the nature of the job requires working at the work place only. Whether a person can accomplish specific tasks while working from home becomes a major fact issue.

In Credeur v. State of Louisiana, No. 16-30658 (5th. Cir. 6/23/2017), the employe argued that she could work from home and that she needed to work from home due to her disability. The employer argued that her work was team oriented and could only be performed at the work place. The Fifth Circuit essentially sided with the employer. I previously wrote about that decision here. In many of these denials of telecommuting, in my opinion most employers just do not trust the employee. They do not trust the employee to work from home. In court and in administrative proceedings, the employer argues that everyone needs to be at work, they rely on team effort, etc. I think we may find over the next few months that working remotely is indeed possible.

As we used to say in Iraq, Be Safe.

As expected claims for unemployment benefits in Texas have skyrocketed. The Texas Workforce Commission website crashed on Thursday due to the heavy usage. The website usually sees 10,000 visitors per day. That site had 40,000 visits on Tuesday of last week and 50,000 on Wednesday. The Thursday crash was brief. Unemployment claims as of Tuesday, March 17, numbered 19,200, almost twice that of Monday. The best approach is to just keep trying until you can file your claim. Do not forget the requirement to call in periodically to report on your job search.

See Rivard Report here.

As we used to say in Iraq, Be Safe.

The President signed into law the Families First Coronavirus Response Act yesterday. See the new Act here. It amends the Family Medical Leave Act. The FFCRA applies to employers with fewer than 500 employees. This provision may cause confusion, since the FMLA itself applies to employers with more than 50 employees.

The FFCRA covers part-time and full-time employees who have been on the payroll for 30 or more calendar days. Covered employees may take up to 12 weeks of FMLA leave due to a “public health emergency.”  The qualifying need is defined as the need to care for a minor child if the school has been closed and if the employee cannot work from home.

The first ten days of the leave are unpaid, but the worker can use any sick leave that is available. Then, the worker will be paid up to 2/3 of the worker’s regular rate, adjusting for the number of hours the employee normally works – for up to ten weeks. Employers with less than 25 employees are exempt from damages in a lawsuit, if the position no longer exists due a public health emergency. The law provides for tax credits for any employers who provide paid emergency leave. This amendment to the FMLA expires Dec. 31, 2020. See Sec. 3101.

The FFCRA also provides that the federal government will fund 26 weeks of additional unemployment benefits for states if the unemployment rate rises 10 percentage points over the prior year in that state. See Sec. 4101.

Under a separate section, the statute also requires an employer to provide ten days of paid sick leave for full-time employees and the equivalent number of hours for a part-time worker. See Sec. 5101.

There will be many layoffs soon due to this coronavirus outbreak. Unfortunately, many of those laid off will be hourly workers. Yes, in Texas, you will generally qualify for unemployment benefits if you lose your job through no fault of yours. The Texas Workforce Commission requires that a person applying for benefits have worked at the same place for four of the last five yearly quarters. See TWC website here. That means you must have worked at the same place for the past 12-15 months. If your hours are reduced due to the coronavirus outbreak, then you would qualify for benefits. See the TWC website. AARP also has a good website explaining the normal problems applicants run into during the process. See that AARP site here.

Keep in mind the requirement to call into TWC weekly to report your job search. TWC will deny benefits to persons who have not applied for jobs during a given week. See my previous blog post about applying for benefits here.