When the coronavirus first hit the United States, some politicians referred to it as the “great equalizer” because it supposedly didn’t discriminate. But very soon, that proved not to be true. People of color are disproportionately affected by COVID-19, for example, and low-paid essential workers have little choice but to show up for work and expose themselves. And if employees do get sick, whether they receive sufficient paid time off to recover is another pandemic disparity. Although many workers have found that their bosses are understanding about time off, others have struggled to get paid leave to heal or to care for their children.
In March, I wrote about a Walmart employee in Washington State who was fired because he had used up all his attendance “points” recovering from what he believed was COVID-19, a situation Walmart declined to comment on. In April, a grocery-store employee in Indiana claimed she was fired for staying at home with a potential case of COVID-19. (She sued, and the case was settled.) A 58-year-old nursing-home worker in St. Louis kept coming to work long after she developed symptoms of COVID-19, because she was told she wouldn’t be paid otherwise, her family told the St. Louis Post-Dispatch. She died a few weeks ago.
This wasn’t supposed to happen. In March, Congress passed the Families First Coronavirus Response Act, making it easier for many American workers to receive paid leave if they get COVID-19, or if they have to care for children who are out of school. For the remainder of the year, employees are eligible for two weeks of paid sick leave if they are quarantined or experiencing COVID-19 symptoms, and 12 weeks of leave paid at two-thirds of their salary if they are caring for a child whose school or child-care provider is closed.
But the law excludes all sorts of employees. Large companies aren’t included in the law, and small companies can claim an exemption. Employers can supplement what’s required under the law with more expansive leave policies, but some companies are already ending the more generous leave policies that they put in place immediately after the coronavirus outbreak.
Our pandemic approach to sick leave is a continuation of America’s jumbled leave laws, in which your time off largely depends on your employer, not your needs. Because of this patchwork system, Americans are some of the only workers in the Western world who risk getting fired if they don’t drag their sick selves into work. Before the pandemic, a quarter of private-sector workers didn’t have a single paid sick day.
The inconsistent way that America does sick leave will become an even bigger problem as more states open up and companies ask their employees to return to the office. In the coming months, employers will wield remarkable power in determining whether their employees will be at risk of catching COVID-19, and whether they can keep their jobs if they do. As unemployment remains high and companies have more workers to choose from, more people may find themselves losing their jobs if they get sick.
The Families First Coronavirus Response Act is an example of an unfortunate truth in health-care policy: Even when things get better for working-class people, they usually don’t get completely better. In spite of this new law, workers’ right to stay home if they catch COVID-19 varies widely among states, only some of which have their own paid-leave laws, and from employer to employer. There’s little clarity for workers on exactly what they’re entitled to, and when. And surveys suggest that many Americans haven’t even heard about this law, so they may not know they can take advantage of it.
Under the FFCRA, employees can get time off only for a reason directly related to COVID-19, and the law exempts employers with more than 500 employees, likely because many large companies already offer paid sick days—though perhaps not two weeks’ worth. What’s more, companies with fewer than 50 employees can qualify for exemptions if it would “jeopardize the viability of the business.” This rips open a major loophole that could leave millions of workers without paid leave. According to an analysis by the Center for American Progress, a liberal think tank, these exemptions mean only 47 percent of private-sector workers will have guaranteed access to coronavirus-related sick leave. For example, many grocery-store chains and meatpacking plants, where infections have been rampant, have more than 500 employees. Many health-care workers are exempt from the law as well.
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.
Yet many disabled employees I’ve spoken with found that their employers were completely inflexible. In 2017, Natalie Velto was hired as an office assistant, a job that involved a lot of phone calls and emailing. Velto has multiple sclerosis, which causes migraines, numbing throughout her body, and occasional cognitive problems. Velto says that though she told the company about her condition, the company wouldn’t let her work remotely when she needed to. In November 2017, Velto had a flare-up and took two weeks off work to recover. When she returned, she claimed in a lawsuit, she was fired because of her absences. She settled with the company in 2019, and agreed not to name it publicly as part of the settlement. (The company did not return my requests for comment.)
We have little hard data on exactly how many people are fired for getting sick. A close approximation might be the tens of thousands of people a year who report to the Equal Employment Opportunity Commission that they were discriminated against because of a disability. Even companies that should be covered by the FMLA and ADA occasionally fire sick employees because their bosses either don’t know the law, or think that the damages from a potential lawsuit will be so low that it’s worth the risk. “The big problem is when the employers don’t follow the rules,” says Brian East, a senior attorney with Disability Rights Texas, a group that advocates for people with disabilities.
One reason it’s hard to know the exact number is that the cases of sick employees losing their jobs are not always clear-cut. For example, in March two Colorado beef-plant employees said they were fired after they stayed home sick with COVID-19 symptoms. But the plant said they were fired because they failed to show up for work for three days and did not contact the company about their absences—not because they got COVID-19.
“Employers have gotten smart, and they don’t say, ‘I’m firing you because you’re asking for too many accommodations,’” says Jenna M. Rangel, a plaintiff’s employment lawyer in California. Instead, employees might start to be treated unfairly relative to others, or their previously stellar performance might suddenly be deemed lackluster.
So, what if you’re soon forced to go back into the office, and in doing so, you get exposed to the virus and fall sick? Your main recourse is a worker’s compensation claim. But a successful worker’s comp claim rests on showing that you caught the coronavirus at work—something that can be nearly impossible to prove, says Michael Duff, a law professor at the University of Wyoming. Because of this difficulty, some states have gone so far as to create “presumptions” that if a worker contracts COVID-19, it can be presumed to be work-related, without the worker providing any proof. But most states don’t have these presumptions.
This assortment of porous leave laws contributes to the unequal way Americans experience the pandemic, and sickness in general. Before the pandemic, low-income workers were already less likely to have paid sick leave. When people get fired because of a sickness or disability, they can go months without a job, especially in this economy. That, in of itself, can further harm health: Medical bills might be unaffordable, but a major element of why people go bankrupt after illness is lost wages. One recent paper estimated that among Americans aged 50 to 59 with health insurance, annual earnings decline by 19 percent on average over the first three years after a hospital admission, and they don’t recover for at least four more.
There’s reason to believe that the pandemic may push employers to be more understanding. (After all, a few big companies did voluntarily extend paid leave to their employees for the first time at the height of the pandemic.) Today, companies might struggle to justify rejecting a telework request like Velto’s: The argument that employees can’t work productively at home is undermined by the fact that they’ve been doing so successfully for months, East says.
Still, at the end of the year, workers may see a return to stingier paid-leave laws. A new bill passed by House Democrats, the HEROES Act, would close some of the loopholes in the existing FFCRA and extend it through 2021. But it’s unlikely to pass the Senate, and it’s unclear what parts of it would survive in a potential future pandemic-relief bill.
In the meantime, public-health officials might beseech Americans to stay home if they’re feeling sick. But some workers would put their jobs at risk by doing so. Talk of public health in the U.S. often revolves around what individuals should be doing—whether it’s wearing masks or not eating cheeseburgers. But much of our health hinges on what our employers do, far beyond providing health insurance or not. Like our freedom to use nicotine and to be with a newborn, our ability to prevent the spread of infectious diseases is yet another facet of life that employers control.