COVID-19 Employment Issues Explained

AIGA recently hosted a webinar on unemployment issues. Wendy Stryker, co-chair of the employment group at FrankfurtKurnit, provided an in-depth analysis of current laws. She represents marketing services agencies, media, entertainment companies, tech startups and other corporations in New York State and Federal courts.

Currently, two laws are being used to help sick workers – the Family and Medical Leave Act and the new Families First Coronavirus Response Act which went into effect on April 1, 2020.

Family and Medical Leave Act

This law has been in effect since the early 1990s and protects only employees (not 1099 contractors). It is only available for employees who've been working for a year or more at a company and provides 12 weeks of unpaid leave. Your job is protected for a serious medical condition or to care for a family member with a serious medical condition.

This existing law is the basis for our new Federal Emergency Paid Sick Leave law which applies to employees who work at companies with fewer than 500 employees. (Big companies are not covered by this law.)

Federal Emergency Paid Sick Leave

Employees receive two weeks of paid leave at your regular rate (capped at $511 a day). If you earn more than $511 a day, you are allowed to substitute your accrued PTO to get up to full sick leave.

This law is not available if you are unable to work because you have been: 1) quarantined due to a diagnosis; 2) suffer from COVID-19 symptoms; or 3) you have not been employed for at least 30 days.

If you're caring for a child with a school closed for COVID-19 reasons, you can take this leave for two weeks at two-thirds of your regular rate of pay and then up to an additional 10 weeks, also at two-thirds of your regular rate of pay. The law allows employers to seek a refund of any paid sick leave through payroll tax credits.

Other Options

Some states set up new emergency sick leave laws such as Colorado, New York, and Washington.

Self-employed individuals can access the Pandemic Unemployment Assistance Program through at least the end of 2020.

Partial unemployment benefits are available in most states.

Furlough versus layoff

A furlough is essentially a temporary layoff. A layoff is intended to be a full-time separation from employment.

Right now, most insurance companies are working with employers to allow people to continue with their company health benefits while on furlough. Before the pandemic, employers were required to give layoff notices. States are waiving these 60-90 day layoff notices now for what's called unforeseen business circumstances.

If you are laid off:

• Be sure to negotiate the terms of your departure and sign releases
• Request separation pay
• Obtain your final paycheck (through the last day you actually worked)
• Investigate COBRA (generally covers companies with at least 20 employees) where you are entitled to continue your current healthcare at your own cost (not an employer cost)

Unemployment

Under the CARES Act, there are new categories of unemployment. (Prior to the pandemic, the general eligibility for unemployment required that you have been an employee and you paid in for a certain number of quarters.) Freelancers can use pandemic unemployment assistance at least through the end of the year. As long as you are eligible for even $1 of state unemployment benefits, you are eligible to get an extra $600 a week. This benefit is only available through the end of July 2020.

You’re not eligible for unemployment if…

• You are fired for cause.
• You're fired for violation of a rule or policy.
• You quit.

Sometimes there are conflicting employment laws. Whichever one is most protective of the worker is the one that governs in some states.

Portfolio Rights for Laid Off Workers

You've been working full-time at an advertising agency or a design firm and now you're laid off. What rights do you have to show completed projects in your portfolio?

Answer:

That's actually two different questions. If you're working as an employee (as opposed to a contractor) there is already the concept of work for hire: anything you create in the scope of your employment (or by using your employer’s time and materials) belongs to the employer. If you're a contractor, that's not going to be the case, which is why contractor agreements usually have a written work for hire clause so the work and copyright belong to the employer.

The other question is how do you want to use the material? If it’s used in a portfolio, it’s not necessarily a copyright violation. When Wendy represents employers, she makes sure there is documentation addressing how work is shown in portfolios.

You can view the webinar here.