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COVID-19 impact on employed dermatologists: Part 2

Robert M. Portman, JD, MPP

Legally Speaking

Robert M. Portman, JD, MPP, is a health care attorney with Powers Pyles Sutter & Verville, in Washington, DC, and serves as legal counsel for the AAD and AADA.

By Ben Tesdahl, JD, Megan La Suer, JD, MHA, and Rob Portman, JD, MPP, October 1, 2020

Every month, DermWorld covers legal issues in “Legally Speaking.” This month’s authors are health care attorneys with Powers Pyles Sutter & Verville in Washington, D.C. Portman is also general counsel for the AAD and AADA.

This article expands upon recent DermWorld articles that touched upon the employment-related considerations that dermatology practices were likely facing as a result of the COVID-19 pandemic (see sidebar). In the second part of this two-part series for employed physicians, we take a look at considerations for employees when aspects of their contracts have been lawfully changed by their employers as a result of COVID-19. Dermatology practices that serve as employers will also find the guidance below useful as they consider the possible need to cut hours, cut pay, and/or lay off physician staff.

Q: If an employer lawfully changes one aspect of my contract (such as reducing hours or compensation), does that invalidate or change any other aspects of the contract (such as my non-compete obligation)?

A: An employer normally cannot unilaterally change an employment contract unless there is a specific provision allowing the employer to do so. Assuming there is such a clause, lawful changes to one aspect of a contract do not usually invalidate other aspects of the contract. In essence, the employer’s lawful contract change, coupled with the employee’s willingness to continue work, creates an amended contract.

Q: If I am lawfully furloughed, how does this affect my pay and benefits?

A: When an employee is “furloughed,” they are technically retained on the books of the employer, but are required to take temporary leave, usually without any pay. There is no legally mandated maximum period of time that a furlough may last, so employees can be left in limbo for quite some time unless the employer is able to provide concrete guidance on when the furlough is expected to end.

Unless there are state laws mandating any particular benefits for furloughed employees, each employer has the leeway to set its own policies as to which benefits stop and which continue during the furlough. The company employee handbook should describe whether any employee benefits such as health care coverage continue for furloughed employees, but if the handbook is not clear, check with your HR director.

Many employers will allow a furloughed employee to use any already accumulated paid leave to provide the employee with some income during the furlough period. Additionally, the Families First Coronavirus Response Act (FFCRA), which was reviewed in detail in our previous Dermatology World articles on COVID-related employment issues, may provide eligible employees with up to 12 weeks of leave (some of which is partially paid) if the employee is unable to work or telework due to a COVID-19-related issue, although smaller employers are exempted if providing such leave jeopardizes the viability of the business. A furloughed employee may also qualify for state unemployment benefits, although the requirements to qualify vary drastically from state to state, so you should review your state’s unemployment website. Some states require furloughed employees to be actively searching for work, while others will excuse that requirement for a specified period of time, provided that there is a probable return-to-work date that can be verified by the employer.

Remember also that if another employment opportunity comes along during a furlough, you are allowed to take that job and leave your former employer, although taking a new job would obviously stop any unemployment benefits you may be receiving.

Q: If I have been permanently terminated by my employer due to an economic downturn caused by COVID-19, what are the next steps I should take?

A: Employees with questions as to whether their termination was lawful may want to consult with an employment attorney. However, assuming the termination was lawful, it is common for many terminated employees to be offered a severance agreement in which the employer agrees to pay the employee a certain amount of money in return for the employee agreeing not to sue the employer for any reason. Some separation agreements can be quite complex and may have strict time limits for signing, so it may be wise to have them reviewed by a knowledgeable attorney. Notably, under federal law, employers must give an employee at least 21 days to review the agreement and seven days to revoke after signing the contract in order for any employee releases in the agreement to be enforceable.

Once separated, many employees are entitled to continue paying out of pocket for their existing health care benefits for a certain period of time under federal COBRA rules or sometimes under equivalent state laws. Your employer is required to explain these continuing health insurance options to you and provide you with the forms to enroll upon separation.

Finally, unless a replacement job is imminent, you would want to file for unemployment using the forms and rules for your state. In many cases, the receipt of severance payment from your employer may delay your receipt of unemployment benefits because the state considers you to have continuing employment income until the severance runs out.

Q: What happens if my state allows my employer to open and my employer wants me to return to work, but I'm not comfortable doing so (e.g., I feel there are inadequate safety measures in place at work and/or I am immunocompromised)?

A: In general, an employer can require an employee to come into work so long as there is no government emergency order that would prohibit your workplace from being open or would prohibit you from going into work. This question raises very complex legal issues, some of which have not been clearly settled in the context of COVID-19. While an employee may refuse to come to work, under certain circumstances your employer may refuse to pay you for performing no work or even to terminate your employment if you cannot perform the essential functions of the job remotely.

Under federal law, an employer must provide a safe workplace. If the employee is required to come into work and believes they are being exposed to a serious health or safety hazard, that employee has a right to file a complaint against their employer with the Occupational Safety and Health Administration. Additionally, an employee may have a legal right to refuse to work and would be protected from retaliation if such work involves “a risk of death or serious physical harm.” However, an employee would only be protected from retaliation if:

  1. The employee “asked the employer to eliminate the danger, and the employer failed to do so”

  2. The employee’s refusal to work was made in “good faith” (a genuine belief that “an imminent danger exists”)

  3. A “reasonable person would agree that there is real danger of death or serious injury”; and

  4. There “isn’t enough time, due to the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection.”

To date, no court or administrative body has ruled whether COVID-19 rises to the level of an “imminent danger.” Moreover, the U.S. Supreme Court has ruled that an employer does not have to pay an employee who refuses to work due to safety concerns.

The Department of Labor has issued COVID-19 guidance for health care workers and employers, but the guidance does not rise to the level of a law and it does not address an employee’s concerns about the perceived safety of the workplace. Learn more.

An employee who is unable to work or telework for COVID-19-related reasons, including but not limited to employees subject to a federal, state, or local quarantine or isolation order related to COVID-19, employees caring for someone who is subject to a quarantine or isolation order or who has been advised to self-quarantine, or employees caring for a child because the child’s school or place of care is closed or the child-care provider is unavailable for COVID-19 reasons, may qualify for paid or partial leave under the FFCRA. You can read more about the expanded Family and Medical Leave Act and the Emergency Paid Sick Leave Act in previous articles on COVID-19 issues for employers in the May and June issues of DermWorld.

It is also possible that, given the nature and severity of COVID-19, a compromised immune system or certain other preexisting health conditions may qualify as a disability under the federal Americans With Disabilities Act, which applies to employers with 15 or more employees. (Note: Some states have anti-discrimination laws that protect persons with disabilities and apply to employers with fewer than 15 employees.) The employee must first establish that there is a disability using information from their treating physician and then ask the employer for a reasonable accommodation (which might include asking to work from home). However, an employer is not required to grant such a request if doing so would create an undue hardship on the employer or if the employee is not able to perform the essential functions of the job even with a reasonable accommodation. Read more.

This article is provided for informational and educational purposes and is not intended to provide legal advice and should not be relied upon as such. Readers should consult with their personal attorneys for legal advice regarding the subject matter of this article.