Read: The problem with telling sick workers to stay home
But for all the problems with the FFCRA, it’s actually an improvement on the usual American leave policies, which tend to be skimpy, unpaid, and unclear. And at the end of the year, when the law expires, those may become the standard once again—even if the coronavirus is still spreading across the country. Normally, two main laws are supposed to allow many employees to take unpaid medical leave. The first, the Family and Medical Leave Act, guarantees 12 weeks of unpaid leave to recover from a major illness or to care for a family member. On top of that, the Americans With Disabilities Act says that employees who have a disability are also entitled to an “interactive process” with the employer to determine whether they can either take more time off or come back with some changes to their job. (The law defines a disability as “a physical or mental impairment that substantially limits one or more major life activities.”)
However, the FMLA applies only to employers with more than 50 employees within a 75-mile radius, meaning that only about 60 percent of all American workers are eligible for it. The ADA, meanwhile, in many states, applies only to companies with more than 15 workers. In both cases, part-time workers tend to have far fewer protections than full-time employees do.
The ADA intends for employers and employees to come up with a mutually agreeable plan—but that leaves room for subjectivity. “A lot of antidiscrimination laws preach consistency, but these laws preach communication,” says Heather Leonard, an employment lawyer in Alabama. For example, let’s say the doctor clears you to return to work, but says you shouldn’t lift anything heavy. Your boss might not be willing to accept that restriction, and may fire you instead. This can happen even in workplaces that would appear to value health: Last year I spoke with a hospital technician who says she asked repeatedly for a sedentary job after injuring her knee, but was fired instead.
Employment lawyers told me that although COVID-19 does not necessarily qualify as a disability under the ADA, being immunocompromised or having diabetes might, because both increase your risk of death from COVID-19. In that case, someone with those conditions could request to work from home, because exposure to the coronavirus is, for that person, especially lethal. It would then be up to their boss to grant the accommodation.
Sometimes, this process goes well—not all companies act in bad faith. Many employers treat their workers fairly and allow ample leave for emergencies. High-paying employers, in particular, seem to take medical and family emergencies in stride. If you run out of sick days, your company might let you take more unpaid time off, but still return to your job when you’re better. Not everyone who gets sick will get fired.