Added on April 6, 2020  Sara Swanson

Coronavirus Q&A: Advice from employment lawyer Deborah Gordon

by Bridge Staff 

WORK ANSWERS

Q: I work for an essential business staying open during this pandemic, but I am in a high-risk population for COVID-19. Am I allowed to leave my job and collect unemployment?
Answered by Deborah Gordon, civil rights and employment attorney, Deborah Gordon Law:

You may qualify under the expanded unemployment benefits. Per the new law:

You are considered to have left work involuntarily for medical reasons and thus qualified for unemployment benefits if you had to leave work because of self-isolation or self-quarantine in response to an elevated risk from COVID-19 due to being immunocompromised.

A person may be deemed laid off from employment and thus qualified for unemployment benefits if they become unemployed because of self-isolation or self-quarantine in response to an elevated risk from COVID-10 due to being immunocompromised.”

Q: I was laid off from my job and my health insurance was canceled. Is this legal? Do I have any recourse?
Answered by attorney Deborah Gordon:

For employees who are terminated, benefits usually end with your job and you’ll have to pay for health insurance yourself. You can keep your employer plan for up to three years, under a federal program known as COBRA, but now you’ll have to foot the entire bill. If you have a high-deductible plan and health savings account, or HSA, you can use those funds to pay for COBRA premiums and for your medical costs. If you have a Flexible Savings Account, or FSA, you can only use those funds for medical costs.

In some instances, employers offer to subsidize COBRA coverage for a time, so employees should ask if that is a possibility. But monthly COBRA premiums on employer plans can be very expensive, so it may not be the best option. Plus, if your employer has gone out of business, the health plan is usually terminated, so COBRA won’t be available.

In general, laid-off employees may be better off buying insurance through the Affordable Care Act exchanges. An employee’s drop in income could mean they’ll qualify for a premium tax credit, which could bring their premiums down substantially.

Q: I pay into an FSA for child care. Because of the pandemic, our day care center is closed. Currently, there is no way to access that fund; I can’t make changes to the account, and it does not roll over into the next year. What do I do?
Answered by attorney Deborah Gordon: 

From a very practical standpoint, if child care is the only thing you’re using the FSA for, I would recommend you exhaust all possible opportunities to cut off future contributions to the FSA. Aside from that, you should seek other ways to use the FSA funds you’ve already contributed so the funds don’t go to waste.

Q: What do I do if my employer is staying open but I think they should be closed per the governor’s executive order? And… my employer closed for safety reasons but is calling employees back now. I am scared to go back to work, but if I don’t go back I will lose my job permanently. What can I do? 
Answered by attorney Deborah Gordon:

1. Determine if your employer is specifically exempted from the in-person operational restrictions.
2. This order went into effect on March 24 and remains in effect until April 13, 2020 at 11:59 p.m. (subject to change).
3. If your employer IS exempt, your employer was obligated to determine which of its workers are necessary to conduct minimum basic operations and inform such workers of that designation in writing by March 31 and also obligated to:

• Restrict number of workers on premises to those strictly necessary;
• Promote remote work to the extent possible;
• Enforce social distancing to the extent possible;
• Increase cleaning standards and disinfecting protocols;
• Adopt policies to prevent workers from entering the premises if they display respiratory symptoms or have had contact with someone known or suspected to have COVID-19;

1. If your employer has NOT taken the necessary steps OR if your employer’s business is not necessary to sustain or protect life or conduct minimum basic operations, contact your local law enforcement.
2. If the employer is permitted to remain open and is taking the necessary steps to protect employees, and you still don’t want to go to work, then you can be at risk of being terminated.

Q: I work in food service and have been laid off. My employer didn’t report our wages correctly and now none of us are eligible for unemployment. Do I have any recourse?

Answered by attorney Deborah Gordon:
I recommend you gather as much documentation as possible on wages actually earned and apply for unemployment benefits anyway. Make sure to carefully document the discrepancy in the reported wages versus your actual earnings on the application. If you are denied benefits because of an error by your employer, use Unemployment Insurance’s automated process to protest the determination or appeal the re-determination. Contact the State Office of Labor and Economic Opportunities for information on reporting wages: https://www.michigan.gov/leo/0,5863,7-336-78421_94422_59886—,00.html

Q: Is there any assistance available for self-employed people? (There is an update about this—unemployment as a result of CARES Act and SBA loans)

Under the federal CARES Act, individuals who are not already eligible for Michigan’s unemployment programs will receive $600 a week for up to four months, including self-employed workers and independent contractors.

Small businesses also have new access to low-interest loans from the Small Business Administration.

Q: Will the federal stimulus relief fund give any checks to immigrants living and working here on green cards or work permits?

If you are a resident alien, have a Social Security number, and earn less than $75,000 as a single individual, or less than $150,000 married filing jointly, you may qualify to receive the 2020 recovery rebate. If you filed jointly, your spouse also must have a Social Security number in order for you to receive a check, as must your child(ren) to receive the qualifying amount. See page 144 of the legislation.

Q: Will hospitals relax “no visitors” rules for patients with disabilities or dementia—conditions that make it difficult to understand what is happening to them and make decisions?

Prior to the coronavirus outbreak, the National Institute on Aging offered guidelines for helping those with dementia or Alzheimer’s through a hospital experience, such as asking for a private room and developing a care team. Some of the advice still pertains in this special circumstance, such as including a personal information sheet to include with the patient’s chart.

The Alzheimer’s Association also provides tips, which include asking the care setting how you can have contact with your family member by phone, video chats or email. If your family member can’t take a call, ask the care setting how you can keep in touch with facility staff in order to get updates.

Q: My daughter works in a nursing home. She is still working and she lives in our home. I have an autoimmune disease and am at a higher risk. We are all very worried that she may bring the virus home. If she chooses to self-isolate, is there anything in place to help her keep her job when this is all over?

She might consider discussing a leave of absence with her employer. The two recently passed pieces of legislation, the CARES Act and the Families First Coronavirus Response Act, address situations in which a worker or family member have COVID-19 or have symptoms of the disease. The Center for Law and Social Policy provides an overview of paid sick days and paid leave provisions.

In addition, the state made eligible for unemployment workers who are self-isolating or self-quarantining because they are immunocompromised, have COVID-19 symptoms, have had contact in the last 14 days with someone confirmed to have the virus, need to care for someone who has the virus, or need to take care of family as the result of a government directive (such as caring for their children).

Q: I’m an international student with an F-1 visa. I’m a grad student at a public university in Michigan. I’ve been in the United States since September 2019 and I’ve been paying my tax and benefits since I arrived. I also filed a 2019 tax return. Am I eligible for the temporary coronavirus outbreak cash assistance? 

Nonresident aliens are not eligible for the 2020 recovery rebate. See page 144 of the legislation. Those on an F-1 visa facing financial hardship may be able to get a work authorization. Contact your school financial aid office for additional assistance.

Q: I live in Michigan but work in another state. In which state do I apply for unemployment benefits?

“As a general rule, you file your claim for benefits with the state in which you worked,” said Erica Quealy, a spokesperson for the Michigan Department of Labor and Economic Opportunity. For example, “I live in Ohio, but work in Michigan. If my employer reported my wages to Michigan, then I would file in Michigan.”

Q: Is there any help for people who are underemployed? My hours have dropped dramatically but I still have a job?

“Financially distressed employers providing critical infrastructure services are encouraged to use [Unemployment Insurance Agency]’s Work Share program,” says Erica Quealy, a spokesperson for Michigan’s Department of Labor and Economic Opportunity.

Work Share lets employees work reduced hours while collecting “partial unemployment benefits to make up a portion of the lost wages,” according to the state’s informational literature about the program.

For additional support, Bridge is tracking Michigan organizations providing COVID assistance such as mental health counseling, mortgage assistance, and food.

DAILY LIVING ANSWERS

Q: Is there going to be a ban on traveling to vacation homes or short-term rentals? It seems this could spread the virus to counties in Michigan where there are few cases and few medical facilities.

The state’s “stay at home” order does not permit residents to leave their home for cross-state vacations. It does, however, allow residents to visit second homes in or out of the state, such as a cottage Up North. Be prepared for some local residents in tourism areas to be temporarily less than thrilled with your arrival.

Q: How long should we prepare for social distancing to last? Should I be cancelling plans into the summer? The fall?

Nobody is sure quite how long this will last. Governor Whitmer just announced schools will not reopen this traditional school year. Social distancing is the best defense against the virus until a cure or vaccine is found, which is considered to be at least a year away.

Government officials have said that the situation remains fluid and that it is yet unclear when social distancing guidelines will no longer be mandated. The White House has already extended social distancing guidelines until April 30, and the Governor of Virginia instated a shelter-in-place order earlier this week until June 10. Many possible timelines presented by health experts suggest that social distancing measures could be in place for at least another eight to twelve weeks, but could extend longer.

Q: Do you have any guidance for non-profit boards trying to manage business under the current restrictions?

The Michigan Nonprofit Association collected resources for nonprofits navigating COVID-19, such as funding opportunities and ongoing advocacy. The Michigan Council of Foundations’ website offers a webinar calendar and other resources for nonprofit leaders.

Q: How we can help promote the vote and the Census in the absence of voter registration drives and in-person community outreach?

“Given our new reality of social distancing and limited person-to-person interactions under Gov. Gretchen Whitmer’s ‘Stay Home, Stay Safe’ executive order, we are asking Michiganders to make phone calls, send text messages and post to their personal social media networks to encourage their friends, family members and acquaintances to complete the census,” Kerry Ebersole Sign, Michigan’s Census Director, said in an email to Bridge Magazine.

Virtual town halls and other census materials can be found at: facebook.com/MiCensus and michigan.gov/census2020.

Nonpartisan organizations like Nonprofit VOTE and Rock the Vote have provided resources and tools for virtual voter registration efforts.

Q: I am a behavioral health therapist serving uninsured and underinsured individuals. On behalf of my clients (and others), how to put in place health care and financial powers of attorney in case the worst happens?

The State Bar of Michigan recommends reaching out to a licensed Michigan lawyer for individual legal advice, such as establishing powers of attorney, with a directory available at directory.michbar.org.

HEALTH ANSWERS

Q: Why is Michigan doing less testing than other states?  

Michigan ranks in the bottom fifth of the country in the number of residents tested per million people, based on public data from states’ websites.

Lynn Sutfin, public information officer for the Michigan Department of Health and Human Services, said the state has “experienced delays in obtaining collection and testing supplies” and so has targeted testing to higher risk groups likely exposed to the virus. She also acknowledged an undercount as the state is challenged to provide accurate totals of commercial lab tests. She added that the state is confident reported numbers of positive tests are accurate but do not represent “the full scope of testing.”

Q: We are still not seeing any significant effect of the stay-at-home order. Hospitals and other treatment venues could soon be swamped. Has the state created a list of medical staff, residents, medical students, nursing students and so on who could be called to service?

Gov. Gretchen Whitmer signed an order relaxing some regulations to allow more health care workers, such as physician assistants and nurses, flexibility in treating coronavirus patients and supporting doctors. She also publicly appealed to retired healthcare providers to help. The state set up a website for health workers to volunteer. The order also temporarily authorized medical students, physical therapists, and emergency medical technicians to volunteer or work within healthcare facilities under supervision.

A state-level workgroup also is compiling information about students who might be able assist, according to Lynn Sutfin, public information officer at the Michigan Department of Health and Human Services.

Q: My family has been staying home and self-isolating from one another, keeping a 6-foot distance, because one of us may have been exposed to coronavirus. How long do we need to do this?

The Centers for Disease Control and Prevention recommend waiting 14 days after last exposure. The CDC also recommends checking temperature twice a day.