The coronavirus (COVID-19) pandemic has created an economic crisis: millions have loss jobs, others are essential workers at increased risk for being exposed to the virus. If this is you or someone you know, you have rights and there are resources that can help you. Below, we compiled the most frequently asked questions (FAQs) that we have been hearing.
If you are in need to assistance, please call our NY COVID-19 Legal Resource Hotline.
Your Rights in the Workplace if Your Child is Remote Learning
a. Yes, if your child’s school is using a remote learning model and the physical location of the school is closed, then you are eligible to receive up to 12 weeks paid time off. Your eligibility depends upon your inability to work remotely while caring for your child.
a. No, generally only one parent (the one who is caring for the child) is eligible for child-care related family leave. In order to gain family leave, you have to prove that you are the only guardian capable of watching your child at the given time.
a. Each employer may require additional materials, but all employees must provide, at a minimum: their requested dates, a statement explaining their reason for needing the leave, and information regarding their children’s school/daycare to verify the claim.
a. If your child’s school is operating on a hybrid schedule/alternate day schedule, you are eligible to take leave, but only on the days in which your child is at home. Eligibility requires that no other guardian is able to take care of your child at the time leave is requested.
a. If your child’s school gives households the option to send children to school or to keep them home for remote learning and you choose to keep your child home, you are not eligible for family leave. Eligibility depends upon the physical school campus being closed, and in this case, it is not.
a. If, because of COVID-19, your child is under a quarantine order or has been advised by a health care provider to self-isolate or self-quarantine, you may be eligible to take paid leave to care for him or her. This includes 2 weeks of paid leave under the Families First Coronavirus Response Act as well as 12 weeks of unpaid leave under the FMLA. Furthermore, New York State Paid Family Leave Law (PFL) grants workers who have been employed for at least 26 weeks up to 10 weeks of paid family leave.
a. If your child’s school is using a remote learning model but is continuing to evaluate and may reopen for in-person classes later in the school year, you are eligible for benefits so long as your child’s physical school campus stays closed.
Unemployment Insurance/CARES Act
a. Likely, yes. Unless you are receiving paid leave or are able to telework, you are likely eligible for unemployment insurance benefits, either under New York State’s regular UIB program or under the CARES Act, the new federal law extending benefits to workers typically left out of the regular UIB system.
b. Many people who would not usually qualify for unemployment insurance benefits may be eligible for benefits under the CARES Act’s Pandemic Unemployment Assistance (PUA) program; for example, independent contractors, workers with little work history, part-time workers, or employees who quit their jobs for reasons directly related to the COVID pandemic.
i. Workers who quit their job due to the COVID pandemic should make their best efforts to keep their jobs before quitting for COVID-related reasons. For example, if you quit because you are afraid of the risks of exposure, you should consider first asking your employer for an accommodation for a leave of absence (if you have an underlying health conditions, ideally with a doctor’s note), or for permission to telecommute (if possible), or to be provided with personal protective equipment and other protective measures on the job.
c. For more information:
i. DOL CARES Act What You Need to Know: https://labor.ny.gov/ui/pdfs/cares-act-need-to-know.pdf
ii. DOL checklist for scenarios where you may be eligible for Pandemic Unemployment Assistance: https://labor.ny.gov/ui/pdfs/pandemic-unemployment-assistance.pdf
iii. DOL flow chart showing process for applying for UI/Cares Act benefits: https://labor.ny.gov/ui/cares-act.shtm
iv. DOL Guidance for self-employed individuals: https://labor.ny.gov/ui/pdfs/self-employed-ui-guide.pdf
a. Likely, yes. Unless you are receiving paid leave or are able to telework, you are likely eligible for unemployment insurance benefits under the Pandemic Unemployment Assistance (PUA) program, created through the CARES Act.
a. It is very difficult to file a UIB claim right now because of the volume of people trying to apply. You should follow the instructions on the DOL website and apply online.
b. To continue to try to apply by phone, call the Telephone Claim Center, at 1-888-209-8124. Telephone filing hours are Monday through Friday, from 8:00 am to 7:30 pm.
a. It depends. You may still be eligible to receive benefits if the DOL finds that you had good cause to turn down the job offer. The DOL has made clear that it is not “good cause” to turn down a job because of a “general fear of COVID-19.” See the DOL’s Fact Sheet on this issue here.
- New York State guidance states that the $600/week Pandemic Unemployment Compensation (PUC) increase to Unemployment Insurance Benefits (UIB) payments is counted as unearned income for both Cash Assistance and SNAP, in combination with regular UIB payments.
- Any retroactive UIB/PUC issued is considered a resource for SNAP in the month it is received, but due to Broad-Based Categorical Eligibility, most SNAP households are not subject to a resource test.
- Retroactive UIB/PUC is also considered a lump-sum payment for Cash Assistance which may make a household ineligible for a period of time.
- This expansion is especially important for noncustodial parents who are required to make court-ordered child support payments.
Worker Health/Safety; Accommodations
a. You may be entitled to take a leave of absence from your job. For example, if you are over 60 years old, or have an underlying health condition such as diabetes or asthma, you may wish to inform your employer of your condition, your increased risks, and request a leave of absence as an accommodation to avoid exposure. It is best to ask for leave for a specific duration of time, because an employer may not be required to permit you to remain on leave indefinitely. In addition, it would be very helpful to have a doctor’s note to back up your request.
b. You can also ask for an accommodation to perform work from home, if such work is available.
c. It is illegal for your employer to retaliate against you for asking for this type of accommodation, but that does not guarantee that they will grant it to you.
d. If your employer is unable to provide an accommodation, and you determine that you need to quit your job, you may be able to obtain unemployment insurance if you are leaving your job due to concerns over contracting coronavirus at work (see question #1).
a. Yes, unfortunately your job is not protected even though you have a reasonable fear of getting sick. If you have no other option for getting to work, you may wish to request a reasonable accommodation to take time from work if you have an underlying medical condition and are worried about exposure. If you do not have an underlying medical condition, you should decide whether you wish to take on the risk of continuing to commute to work, or to stay home. You may apply for UI benefits if you quit your job because of these risks, and your application will be stronger if you can show that you made an effort to keep your job before quitting your job however you are not guaranteed coverage (see question # 1, above).
i. Note: you should never quit your job just to get unemployment benefits.
a. Yes, unfortunately your job is not legally protected if you do not come to work because of your general fear of infection, and if you do not have a basis to ask for an accommodation (see question #5). However, if your employer is not providing a safe workplace, you may wish to ask your employer to take steps to reduce or eliminate dangerous conditions. For example, you may ask for your employer to allow you to telecommute, or to stagger employees’ work schedules.
b. You also have the right to ask for personal protective equipment (PPE) if you believe you need it because of a threat of COVID-19 infection. It is best if you ask for it as a group, because the law is more protective of workers who act collectively than alone.
c. If you believe your employer is violating occupational health and safety regulations, you may wish to file a complaint with OSHA. It is illegal for your employer to fire you because you filed a complaint about possible health and safety violations.
i. More information here: https://www.osha.gov/workers/
d. If you do not receive PPE or your employer does not take steps to reduce dangerous conditions despite these attempts, you should decide whether you wish to take on the risk of working or stay home. There is no guarantee your job will be protected if you stay home. You may apply for unemployment benefits if you quit your job because of these risks; however you are not guaranteed coverage (see question #1, above).
i. Note: you should never quit your job just to get unemployment benefits.
a. Because you are not currently caring for your family member, you do not have the right to paid or unpaid leave to stay home. It is up to you whether you wish to take on the risk of working or to stay home.
b. It is illegal for your employer to discriminate against you based on your association with someone who is disabled. That means that your employer cannot treat you worse because you are associated with a disabled person. However, there is no guarantee your job will be protected if you stay home.
c. You may apply for unemployment benefits if you quit your job because of the risk to your family member, and your application will be stronger if you can show that you made an effort to keep your job before quitting your job; however you are not guaranteed coverage (see question #1, above).
i. For example, you can ask a doctor who treats your family member to provide a medical letter explaining their medical condition and the risks of exposing them to the virus, and explaining that the family needs to shelter in place to minimize the risks.
d. Note: you should never quit your job just to get unemployment benefits.
a. Your boss is violating the law. You should not go to work if you are not an essential worker. You may wish to file a complaint with the NYS DOL, here: https://www.labor.ny.gov/workerprotection/laborstandards/coronavirus-complaints.shtm
Paid Leave/Family Leave
a. Likely, yes. You may be entitled to paid sick leave under the NYC Earned Sick and Safe Time Act. This law provides employees up to 40 hours of unpaid sick leave if your employer has fewer than five employees, or 40 hours of paid sick leave if your employer has more than five employees. More information here: https://www1.nyc.gov/site/dca/about/paid-sick-leave-what-employees-need-to-know.page
b. You may also be entitled to two weeks of paid sick leave under the Families First Coronavirus Response Act (FFCRA). Under the FFCRA, if your employer has fewer than 500 employees, you are entitled to two weeks of paid sick leave if you are unable to work because a health care provider advised you to quarantine, and/or because you are experiencing COVID-19 symptoms and are seeking medical diagnosis. (Note that some small businesses with under 50 employees may be exempt from this law should the business determine that compliance would be an undue hardship.)
c. You may also be eligible for Temporary Disability Insurance (TDI) to replace some of the income you lose while you are not working. These benefits are payable to workers who were insured off the job. You may not receive unemployment insurance benefits and TDI at the same time. TDI benefits are available for a maximum of 26 weeks. Visit the NYS Workers’ Comp Board website for more information: http://www.wcb.ny.gov/content/main/DisabilityBenefits/Employer/introToLaw.jsp
d. If you believe you were infected at work, you may qualify for Workers’ Compensation Benefits, though it may be difficult to prove you were infected on the job, unless you are a health care worker. You must notify your employer of your workplace injury/illness within 30 days; this rule is very strict, and it is best to inform your employer in writing. For more information, visit the NYS Workers’ Comp Board website: http://www.wcb.ny.gov/
a. Likely, yes. Under the Families First Coronavirus Response Act (FFCRA), if your employer has fewer than 500 employees, you are entitled to two weeks of paid sick leave, at 2/3 of your regular rate of pay, to take preventative medical measures including self-isolation. (Note that some small businesses with under 50 employees may be exempt should the business determine that compliance is an undue hardship.)
b. In addition, NY State’s Emergency COVID-19 Paid Sick Leave Law grants employees protected leave where a public health official recommends self-isolation: if your employer makes more than $1 million per year or has between 11-99 employees, you may be eligible for up to 5 days of paid leave; if your employer has 100 or more employees, you may be eligible for up to 14 days of paid leave.
a. Likely, yes. Under the Families First Coronavirus Response Act (FFCRA), if your employer has fewer than 500 employees, you are entitled to two weeks of paid sick leave, at 2/3 of your regular rate of pay, to care for a sick family member. (Note that some small businesses with under 50 employees may be exempt from this law should the business determine that compliance would be an undue hardship.)
b. Under the Family Medical Leave Act, if you work for an employer with at least 50 employees in a 75-mile radius, you have worked there for at least a year, and you worked at least 1250 hours in the year before you take time off, then your employer must provide you with up to 12 weeks of unpaid time off. When you return from leave, your employer must allow you to work in the same or a substantially similar position.
c. The New York State Paid Family Leave Law (PFL) grants workers who have been employed at least 26 weeks up to 10 weeks of paid family leave. Workers receive 60% of their average weekly wage, up to a cap of $840.70.
d. The NYC Earned Sick and Safe Time Act provides employees up to 40 hours of unpaid sick leave if your employer has fewer than five employees, or 40 hours of paid sick leave if your employer has five or more employees, which can be used to care for a sick family member.
e. It is illegal for your employer to retaliate against you because you have asked for or used sick or family leave.
a. Likely, yes. Under the Families First Coronavirus Response Act (FFCRA), if your employer has fewer than 500 employees, you may receive 12 weeks of leave at 2/3 of your regular rate of pay, up to $200 per day, if you are staying home to care for a child under the age of 18. (Note that employers with fewer than 50 employees may seek an exemption to this obligation under the law.)
b. If you are ineligible for leave or have exhausted all leave and have no choice but to stay home with your child, you may apply for Unemployment Insurance Benefits under the CARES Act (see question #1).
Immigration Status and Benefit Eligibility
a. Undocumented workers cannot qualify for Unemployment Insurance Benefits, which requires that claimants have legal authorization to work in the U.S. But certain immigrants with work authorization may be eligible for benefits. Note that you must have had work authorization during the time they worked (for which the work history is being counted), and at the time they are applying. This should include LPRs, refugees, asylees and some applicants, DACA recipients, TPS recipients and applicants, and applicants for cancellation of removal. You should speak with an immigration attorney to make sure you understand your specific status and work authorization before applying for benefits.
b. However, undocumented workers can receive benefits under other laws, including NYS Paid Family Leave, NYC Earned Sick and Safe Time Act, Temporary Disability Insurance and Workers’ Compensation Benefits.
c. In addition, there are no immigration status–related restrictions on eligibility for the new FFCRA paid sick leave or paid family leave provisions; employees are entitled to this leave regardless of their immigration status. Because paid leave should be paid directly to employees by their employers in the same way wages are paid, there should be no involvement with government agencies unless an employee files a claim alleging violations of the law. Generally, those agencies do not inquire into workers’ immigration status when they receive a complaint.