Paid time off and your rights during the coronavirus

woman sneezing at desk, rights to paid time off during coronavirusWith all of the new laws and requirements coming about because of the coronavirus, many people have questions regarding paid time off and their rights to it. What happens if you get sick and your employer won’t give you time off to either recover or quarantine? What happens if a family member gets sick and you need to care for them?

State laws regarding paid time off

As of March, the Colorado Division of Labor enacted the Colorado Health Emergency Leave with Pay Rules (Colorado HELP) to give employees some help, especially with paid time off. Because of these new regulations, companies are now required to provide up to four days of paid medical leave for their employees. This time can be used to self-isolate if you are exhibiting symptoms of Covid-19. The new regulations cover employees in the following industries: leisure and hospitality, retail stores that sell groceries, food and beverage manufacturing, food services, childcare, education (including transportation, food service, and related work), home health care, nursing homes, and community living facilities.

New federal laws

Two new acts passed by Congress — the Families First Coronavirus Response Act and the Emergency Paid Sick Leave Act —also give you rights with regards to paid time off. These new laws require all states, cities, and towns, along with private companies with less than 500 employees, to provide up to 80 hours of paid leave to employees if they are told to self-quarantine or if they have symptoms and are waiting for test results. If this is the case, you should receive your regular rate of pay for those 80 hours. You can also use the time to care for a child if their school or daycare has been closed due to Covid-19 or to care for a family member who is either sick or needs to self-isolate. In this case, the law requires your employer to pay you two-thirds of your regular pay during your time off. The law also prevents your employer from requiring you to use all of your other paid time off, like vacation or personal time, if you get sick or need to care for someone who is.

Paid time off if you need to care for a family member

Sometimes, it’s not you that’s sick but an immediate family member like a spouse or child. If you have worked a year or more, full-time,for a company with more than 50 employees, you can take advantage of the Family Medical Leave Act, or FMLA. This act requires that companies give you up to 12 weeks of unpaid time off to care for a family member and then let you return to your job in the same or an equivalent position. They also have to let you keep your health insurance.

Can I be fired for getting sick?

The FMLA and other federal laws protect employees from being fired for a serious health condition. The Americans with Disabilities Act (ADA) also prohibits companies from discriminating against employees with a disability. In some cases, you could be considered disabled if you have an underlying health condition, such as asthma or diabetes, that could be exacerbated by the Covid-19.

We are here to help with paid time off and other employment issues

If you have experienced problems with your employer not giving you the required paid time off during this epidemic or any other health crisis, please give us a call. We work diligently to protect employee rights. The Civil Rights Litigation Group is dedicated to protecting the rights of employees during the coronavirus outbreak. If you are having issues securing paid time off, we can pursue a lawsuit against your employers, and will fight to get you compensation for your damages. For a free, no-obligation consultation with the Civil Rights Litigation Group, call our Denver CO law firm today at (720) 515-6165 or use our online contact form.

Coronavirus and your employee rights

female employee wearing mask during coronavirus outbreakThe coronavirus pandemic our country is going through right now is unprecedented – people are sick, people are dying, and everyone is scared. Different states are battling the coronavirus in different ways as businesses struggle to survive. Here in Denver, as of March 24, the mayor has declared a state of local disaster, pursuant to C.R.S. § 24-33.5-701, et seq., and ordered all individuals to STAY AT HOME and shelter in place. This means that all non-essential businesses should close, unless they can operate with employees from home and/or with appropriate “social distancing.” In particular:

“All businesses with a facility in Denver, except Essential Businesses as defined below in Section 6, are required to cease all activities at facilities located within Denver, except Minimum Basic Operations, as defined in Section 6. For clarity, businesses may also continue operations consisting exclusively of employees or contractors performing activities at their own residences (e.g., working from home). All Essential Businesses are asked to remain open. To the greatest extent feasible, Essential Businesses shall comply with Social Distancing Requirements as defined in Section 6, below, including by maintaining six-foot social distancing for both employees and members of the public, including, but not limited to, when any customers are standing in line.”

March 22 CDPHE Order.[1]

If your business is one of those that will or can remain open, you may have some questions about your rights. First of all, you should understand that circumstances regarding the pandemic are changing as information becomes available and that this is new to everyone. Congress is expected to pass a bill to help both businesses and their employees, but new laws are likely to come in to effect.

Hopefully, you have a caring employer who is taking all the necessary precautions to keep their employees safe and to help you endure through this trying time. However, you may still have some questions and concerns about your rights and safety during this time.

 

Can my employer require me go to work during the coronavirus outbreak?

Unless you have a valid disability that qualifies under the Americans with Disabilities Act (ADA), your employer can require you to come in to work. If you have health concerns, the best thing you can do is provide notice by talking to them and communicating regarding your concerns and your particular condition. However, if your business is one that was mandated to close and your employer remains open, and then fires you because you refuse to go to work, you may have a case for wrongful termination in violation of public policy. Before doing anything, you should speak to your employer and communicate that you have good cause not to work because of a medical vulnerability you have and that you fear for your safety. If you make a good faith effort to resolve the situation and your employer still fires you, you can apply for unemployment and look into a wrongful termination lawsuit.

 

Can my employer require me to work if I need to care for a sick family member?

The Family Medical Leave Act (FMLA)[2] requires employers to provide eligible employees up to 12 workweeks of unpaid leave per year to care for yourself or family members, with continued health benefits. Employers must also allow employees to return to the same job (or one that is equivalent). See the Department of Labor website for all the eligibility requirements and details.

 

Is my employer required to provide safety equipment against the coronavirus?

There are OSHA (Occupational Safety and Health Administration) laws that protect you. The general duty clause from OSHA requires your employer 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.” Of course, your employer can’t eliminate the coronavirus from your workplace but it should make that environment as safe as reasonably possible. A lot of this will come down to them putting forth a “good faith effort” because safety equipment is in short supply at the moment. So, while a hospital is typically required to provide doctors and nurses with the masks, gowns, and even hazmat suits, a grocery store can get away with providing gloves and hand sanitizer if that is all they are able to get. However, in most cases, they shouldn’t prevent you from using additional safety equipment that you provide so long as it doesn’t interfere with your job.

 

Can I sue my employer if they require me to work and I get sick?

In most cases, probably not. Simply put, it is very difficult to prove how or where someone caught the coronavirus because, as of now, the virus hasn’t mutated very much. What that means is that most people who are sick in your area will have a very similar strain of the virus, so it’s next to impossible to trace. Remember, the burden of proof is on you to show that you not only caught the virus at work but that it was your employer’s fault.

However, if your employer knowingly puts you in a dangerous situation without required protection, or deliberately didn’t inform employees that they had been exposed, then you may have some recourse. Again, this entire situation is something the country and the courts haven’t dealt with much so there is a lot grey area to navigate. And the burden of proof will be still be on you.

 

I am Asian, Latino, African American, Caucasian, or a member of another race and my employer is treating me differently

Disparate treatment because of your race continues to be prohibited by Title VII of the Civil Rights Act of 1964 and is absolutely illegal. If you can prove that your employer has singled you out and treated you differently from the other employees —  such as cutting your hours or making you wear a mask when no one else is required to — because of your race you may have a case for discrimination.

 

If I test positive for the coronavirus, can my employer tell the other employees?

No, your employer is required to maintain your privacy regarding any medical information. However, they can (and should) notify other employees that they may have been exposed to the coronavirus, or that there may otherwise be a health hazard, without disclosing your name.[3]

 

[1] See https://www.denvergov.org/content/denvergov/en/mayors-office/newsroom/2020/city-s-covid-19-response-update-and-stay-at-home-order.html

[2] The FMLA applies to all public agencies, including local, State, and Federal employers, and local education agencies (schools); and private sector employers who employ 50 or more employees for at least 20 workweeks in the current or preceding calendar year – including joint employers and successors of covered employers. If you are working for business with fewer than 50 employees, they are not required to offer FMLA benefits.

[3] For further legal advice on this issue, consult an attorney knowledgeable in federal and/or state privacy matters. Civil rights attorneys, such as the author of this article, are not experts in privacy law.

Dealing with disability discrimination in the workplace

The Americans with Disabilities Act of 1990 prohibits disability discrimination against an individual based on their disability. The idea was to ensure that Americans with disabilities would have the same rights as everyone else. This includes all aspects of employment, including hiring, firing, promotions, and job duties, and applies to businesses with 15 or more employees.

Disability Discrimination In Denver, CO?

The Colorado Civil Rights Act further refines the rights of the disabled, prohibiting discrimination, and applies to businesses with two or more employees.

Reasonable accommodation

If you find yourself disabled while working, you can notify your employer of your disability, and request a reasonable accommodation. The company is required under the ADA to provide reasonable accommodation, as long as it does not impose an undue hardship on the employer. Otherwise, they are guilty of disability discrimination.

This reasonable accommodation would be provided to an otherwise qualified disabled employee, and would enable him or her to enjoy the same benefits and have the same level of performance as a non-disabled employee. The accommodations may not be exactly what the employee requested, but may be enough for the employee to continue working at a similar level than before.

These accommodations can include:

  • Changing the employee’s work schedule
  • Restructuring of the employee’s job
  • Increasing accessibility to disabled employees
  • Reassigning the employee to a currently vacant position
  • Providing qualified readers and/or interpreters
  • Modifying or obtaining equipment or devices
  • Modifying or obtaining policies, training manuals, or exams

Once the employee requests an accommodation, the employer’s duty to provide one is initiated. Both the worker and the employer should have a conversation on exactly what the employee needs to continue working.

When the employer refuses to address disability discrimination

Because the ADA requires an employer to provide a reasonable accommodation to a qualified individual with a disability, refusing to accommodate a disabled employee may be able to create a claim for disability discrimination under the ADA. The accommodation is requested so that the disabled individual will be able to continue his or her employment as if they were not disabled, or as closely as they can.

The first step is to try to resolve the issue internally, within the company. Having a discussion with your supervisor or manager may be all it takes to resolve the issue. If your direct supervisor refuses, or is unaware of the requirement, a conversation with HR may be your next step. If that doesn’t help, you may have to file an internal complaint within the company. This will give the company a chance to remedy the problem. If they don’t, and you do end up filing suit, it will go a long way in demonstrating to the court that you gave the company adequate opportunity to correct the problem and provide an accommodation.

Should a company complaint not resolve the problem, the first step is to file a discrimination charge with the EEOC in order to preserve your right to file a lawsuit later. Once the EEOC has completed its investigation, it will issue a right-to-sue letter. You will then be cleared to file your lawsuit.

The EEOC has a web page with some facts about the ADA.

Your Denver disability discrimination attorney

Dealing with a disability is difficult enough. Working for an employer who doesn’t respect you as a valued member of the company because of your disability can make things even worse. You don’t have to be a victim against ridiculous discrimination tactics.

Call the Civil Rights Litigation Group at (720) 515-6165, or use our online contact form, to schedule your free consultation with us today. We’ll aggressively fight for you in court and make sure your rights are protected and you are treated fairly.

Is there such a thing as pregnancy discrimination in the workplace?

Pregnancy and childbirth are a wonderful time in a woman’s life. From the first moment she discovers she’s pregnant until she takes home a newborn, she has much to do. One of the things she shouldn’t have to be concerned about is her job and pregnancy discrimination.

Young pregnant woman at a Denver office working.

Many companies have specific policies and procedures in place to accommodate a woman during and after her pregnancy, including accommodations. Most companies implement temporary work re-assignments to accommodate a shorter work schedule. Some companies may hire a temporary worker or two while the worker is out on maternity leave. But not all companies are as progressive and forward-thinking.

There are laws in place to protect pregnant women from being singled out. But gender discrimination or pregnancy discrimination is still a widespread problem nationwide, particularly among low-income women. Many employers will find a way to terminate a woman’s employment due to her pregnancy, despite the fact that it’s highly illegal.

Employment termination is frequently disguised as a layoff, couched in less-than-favorable performance reviews, or a policy violation that wasn’t there before, such as tardiness without a doctor’s note or an increase in a weight-lift requirement. This directly impacts the woman’s family, since the income is cut off when they need it the most. Since pregnancy is exclusive to females, it can also be considered “gender discrimination.” 

Laws against pregnancy discrimination

Both state and federal law prohibit pregnancy discrimination:

  • Pregnancy Accommodations In Colorado, in which an employer is required to offer “reasonable accommodations” to a pregnant employee, unless it would cause an undue hardship to the company. It also prevents an employer from taking “adverse actions” against an employee for requesting an accommodation. Requesting a doctor’s note for the requested accommodation is acceptable.
    • An employer must provide a reasonable accommodation for a pregnant employee as they would for an employee experiencing a different disabling health conditions (i.e., broken bones, stroke, recuperation after reparative surgery, etc.)
  • The Colorado Anti-Discrimination Act, which prohibits discrimination for pregnancy as well as other common reason, such as race, creed, nationality, orientation, age, and other factors. This act requires all employers, regardless of size, comply with the state laws against discrimination.
  • The Pregnancy Discrimination Act of 1978 specifically prohibits sex discrimination based on pregnancy, childbirth, or medical conditions related to pregnancy/childbirth. Women are to be treated the same as any other employee with a medical condition with respect to benefits, including healthcare, affected in the same way with a condition that temporarily prevents them from working or limits their ability to work.
  • The Americans With Disabilities Act (ADA), a federal law that prohibits discrimination against disabled workers by companies with more than 15 workers. Conditions related to pregnancy like gestational diabetes and preclampsia are considered disabilities under the law. You can’t be fired, harassed, or denied a promotion because of your pregnancy, nor denied assistance such as extra breaks or being excused from a lifting requirement. FMLA provides 12 weeks of unpaid guaranteed leave for pregnancy and childbirth.

What Is A “Reasonable Accommodation?”

Like many conditions, pregnancy includes its own symptoms, such as the well-known “morning sickness.” A pregnant woman in the workplace may need some accommodation during pregnancy, including:

  • Job restructuring
  • A temporary modified schedule
  • Increased breaks for restroom, food and water
  • Foot rests
  • Equipment modifications, such as a chair with increased support
  • “Light” duty, including the reduction of weight lift requirements during pregnancy
  • Assistance with manual labor, or a temporary transfer to a less hazardous job

An employer is required to engage in an interactive discussion with the employee to accommodate their needs for assistance. The employer is required to supply reasonable accommodation as long as it doesn’t create an undue hardship for the company. For instance, a request for a new chair would be considered “reasonable,” but a request for an entirely new office to be built would not be.

An employee is not required to accept an accommodation she didn’t request, nor can she be compelled to take leave if the employer can provide a reasonable accommodation.

What you can do about pregnancy discrimination

Both state and federal law prohibit an employer from using your pregnancy as a factor in decision making for:

  • The hiring and interview process
  • Wages, benefits and other pay-related decisions
  • Promotions, transfers, demotions or other disciplinary actions
  • Retaliation for taking leaves of absence
  • Disciplinary action, such as suspensions and termination
  • Layoffs and other forms of termination

If you’re a victim of pregnancy discrimination, you do have options. The EEOC offers a list of facts about pregnancy discrimination, and you can file a complaint with the EEOC as well.

It’s important to begin keeping documentation of any attempts at discrimination in the workplace that you notice. For instance, if another individual is being accommodated for a different type of injury, but you aren’t. If something has “changed” at work after notifying your supervisor of your pregnancy, or you’ve heard an increase in inappropriate remarks about your pregnancy, keep a written record. If you are being singled out, this written record will go a long way in proving your case.

If you’ve been terminated, fired, laid off, or had other adverse actions taken against you once you’ve revealed your pregnancy, it’s time to speak with a civil rights attorney who can defend you and protect your rights.

Workplace discrimination is against the law

The US has very strict laws against discrimination, particularly for a pregnant woman. Colorado also offers protections if you believe you’ve been targeted because of your pregnancy. Call The Civil Rights Litigation Group today at (720) 515-6165 for a free consultation. We’re experienced in helping people like you fight back. We can help you file your EEOC complaint, and represent you in court when the time comes.

Tips to winning a wrongful termination claim in Colorado

Filing a wrongful termination claim is difficult enough—you’ve also got to prove your claim. Colorado is an at-will state, meaning that you or your employer can, without cause, terminate your employment at any time. Although the claim may be resolved in mediation and never get to court, you’ll need accurate information and documentation to support and prove your claim. Here’s what we suggest.

Colorado wrongful termination claim lawyers.

Establishing wrongful termination

In the at-will state, you can legitimately be terminated without notice and without cause, as well as for a cause or causes, such as poor performance, excessive absenteeism, violation of policies, and other standard reasons. Most wrongful termination cases are filed by at-will employees. But there are limits, and you cannot be terminated for an illegal reason, such as discrimination

You also cannot be terminated in retaliation for refusing to perform an illegal act, such as driving a company vehicle without proper registration, or after exercising a legal right (such as voting or jury duty.)

Constructive dismissal, a situation where the employer makes the work environment very uncomfortable to coerce you into quitting, is also illegal.

Other indicators of potential wrongful termination:

  • Direct or circumstantial evidence of discriminatory treatment, including direct written or verbal statements, or termination of a specific group, or a firing after an employer learned your age, gender, nationality, religion or other factors
  • Disparaging comments about specific groups of people, such as women or employees over 50
  • Employees treated differently based on age, gender, ethnicity, etc.
  • Obvious discrimination during layoffs, such as women over 40 or 50
  • Supervisors, superiors or employer making biased comments about certain groups, especially in front of witnesses

You will also need to prove that your termination was illegal with documents, witness statements and other information.

Keeping records to prove wrongful discrimination

It’s important to begin recording events as soon as you notice them, in case you are actually fired. If you suspect that wrongful termination may be coming, start making copies of anything relevant and storing them at home or in your cloud storage (i.e., Google Drive, Dropbox) where you’ll have them available.

  • IMMEDIATELY: Start writing down everything that occurred during your wrongful termination while they are fresh, similar to a diary.
    • Use these details to create a timeline of the events that led up to your termination. Include names of all the individuals involved.
    • Get as much paperwork as you can, especially your termination notice, which will give the official reason for termination.
  • Keep copies of everything that’s in writing including layoff papers and/or termination notice. 
  • Request a copy of your entire personnel file, which will include pay raises, promotions, as well as any disciplinary actions or discussions. Sometimes companies rush terminated employees out of the building, so you may not have time to even pack your things. An attorney may need to subpoena your personnel file from HR later if they refuse.
  • Send an email to your immediate supervisor summarizing the topics of discussion during the termination the next day. This is simply to document the discussion, and to establish a record of the meeting, not to debate. Stay professional, and don’t argue. This may be the only record you have of the meeting.
    • Alternately, create a diary entry of the meeting with everything discussed, if you aren’t comfortable sending an email.
  • Speak with coworkers who may or may not have been treated differently than you. Have they also been treated differently, or seen others being singled out for wrongful termination or disciplinary actions?
  • Financial records—this includes pay stubs, bonus checks, W-2s and any other related documents. These are helpful to establish how much money you lost when after your termination.
  • If you have an employee contract, add it to your file.
    • In some cases, policy manuals, employee handbooks and other corporate documents may constitute an employment contract. Add these to your file as well.
    • Are you a union member? A union contract negates the “at-will” part of your employment, and spells out the employer’s procedure and specific grounds for dismissal.

Find an attorney who handles wrongful termination cases so that he or she can guide you through the process of EEOC complaints as well as possibly filing a lawsuit before the two-year statute of limitations. 

Is it worth filing for wrongful termination?

There are a few reasons why you should pause before pursuing a wrongful termination claim.

If you’re already working, how much did you lose after your termination? If you already had a job or found one right away, you may not have lost any wages or other compensation. The amount you might receive may not be worth the cost of any legal action.

You should be completely honest with your attorney about everything related to your claim. If you’ve made comments that can be seen as inconsistent by the opposing party, you should tell him or her up front to avoid an embarrassment during mediation and/or litigation.  Before making any statements, discuss them with your attorney to avoid any pitfalls that could sink your case.

You’ll likely be looking for another job the day you are terminated (or the next day.) You may have been job hunting already and caught off-guard. Think about what your next employer will see: someone who sued their former employer. Even if you don’t tell them, they could eventually find out. One of the first things an HR person or hiring manager will wonder is if you’ll sue them, too. It could be a big “red flag” and ruin your chances for another job.

Protect your civil rights

There are strict laws in the US against discrimination and wrongful termination. If you believe you’ve been terminated illegally, contact our employment lawyers by calling (720) 515-6165 for a free consultation. We’re experienced in helping people like you fight back. We can help you file your EEOC complaint, and represent you in court when the time comes.

What proof do I need for age discrimination lawsuits in Colorado?

Age discrimination—two words nobody ever wants to hear. It’s one of the ugliest forms of discrimination, as well as one of the most widely practiced. For all the laws and the press and the talk about it, making assumptions about someone’s age still happens, particularly in the workplace.

What proof do I need that I've been discriminated against because of my age in Denver, CO

Even with the Age Discrimination In Employment Act, the AARP estimates that 64% of workers admit that they have witnessed ageism in the workplace. With 1 in 5 workers over the age of 55, it’s not a stretch.  Even job seekers over 35 see their age as an obstacle to finding a new job. Even in the current stronger economy, workers “over a certain age” are being left unemployed, all because of their age.

But proving age discrimination is an uphill climb. Most employers have not only been trained on how not to discriminate, but they’ve also found ways around the system to make sure they aren’t caught. It’s not usually the blatant comment that “you’re too old to do this job now.” Employers have become more subtle in age discrimination. So what can you do?

Proving Discrimination

The Supreme Court’s 5-4 ruling on Gross v. FBL Financial Services, Inc. in 2009 makes proving age discrimination much more difficult. This case increased the burden of proof that you will have to meet to prove that you’ve been subjected to age discrimination, and you must prove that age was the primary reason for a firing, layoff or demotion, and not combined with something else (such as a poor performance review.) Because of this increased difficulty, employers have become better at hiding it.

If you’ve heard comments about age, directed at you or others, keep a record of everything. But outright age discrimination isn’t always that obvious, and most employers know how to conceal it.

Like other types of discrimination, there are some signs to look for and document:

  • You’ve been passed over for promotion repeatedly, despite the promotion of younger employees with less experience
  • Younger workers are invited to training, meetings or other work-related activities that you (and other older workers) aren’t
  • You’re frequently asked about when you plan to retire, especially by your boss or HR (document these kinds of comments with name, date, time and witnesses.) These kinds of comments may also constitute harassment and create a hostile work environment.
  • After years of positive performance reviews, you are suddenly “written up” or given disciplinary documentation, when younger workers are not for the same “infractions”
  • Your job responsibilities have dramatically changed so that you are unable to complete them (such as much higher and more difficult sales targets)
  • You (and others like you) are being treated very differently than younger employees
  • Promotions, transfers and new hires are increasingly younger and younger, while older workers are given different responsibilities or systematically laid off.
  • Younger workers are being offered different types of benefits

There are some types of positions, such as airline pilots, where age is a factor, and you may not be able to file a complaint.

If you’ve been discriminated against, you can file a complaint with the Equal Employment Opportunity Commission (EEOC.) The agency notes a marked increase of ageism complaints since 1997, with more than 25,000 filed per year since 2008.

Voluntary and/or mandatory retirement

In some cases, this may also be a form of age discrimination, since it’s offered to older, tenured and thus more expensive workers. If the company is actively working to shed workers over 50 or so, be sure to review everything before you sign anything (or have your lawyer review them for you.) If you discover later that you were, in fact, discriminated against, you may have signed away the right to sue the company later in exchange for your retirement package.

Caveat

Filing a suit like this one can be draining, both emotionally and financially. It also brands you as a “high-risk applicant,” because any other employer may be afraid to hire for fear of litigation later. Whether you win or lose such a lawsuit, you may face increased difficulty in finding employment. So in addition to being over a certain age, suing a former employer may make you completely unemployable.

Age discrimination is against the law

There are strict laws in the US against all discrimination. If you believe you’ve been the target of age discrimination in Denver, call the Civil Rights Litigation Group at (720) 515-6165 for a free consultation. We’re experienced in helping people like you fight back. We can help you file your EEOC complaint, and represent you in court when the time comes.

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