Frequently Asked Questions: Coronavirus & Pennsylvania Workers’ Rights

Regardless of immigration status, all workers are protected by federal and state health and safety laws. Your employer has a general duty to provide you with a safe and healthy workplace free from recognizable harms.

The federal federal Occupational Health and Safety Administration (OSHA) has issued OSHA Guidance on Preparing Workplaces for COVID-19 related to coronavirus for employers recommending that employers take steps to assess the hazards related to coronavirus in the workplace, evaluate the risk of exposure to workers, and select, implement, and ensure workers use controls to prevent exposure to the virus. These controls may include social distancing, appropriate protective equipment, hygiene, and cleaning supplies. Further, your employer should ensure that its sick leave policies are flexible and consistent with public health guidance and the law. OSHA has also issued anOSHA Interim Enforcement Response Plan for Coronavirus Disease 2019, which provides instructions and guidance for agency handling of coronavirus-related complaints. Further, the U.S. Center for Disease Control (CDC) has issued CDC Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 for employers to help prevent workplace exposures to coronavirus in non-healthcare settings.

Moreover, on April 15, 2020, the Secretary of the Pennsylvania Department of Health issued an Order Directing Public Health Safety Measures for Businesses Permitted to Maintain In-person Operations requiring certain safety measures for critical workers at “life-sustaining” businesses. This order became effective immediately, and will be enforced starting on April 19, 2020. The order requires employers to take steps to protect workers, including (but not limited to): provision of face masks to workers, staggering work start and stop times, holding virtual meetings and trainings, providing hourly breaks for hand washing, providing information on health and safety procedures to non-English speakers in their native/preferred language, and temperature screenings where there have been probable or confirmed cases of coronavirus.

Because employers have a general duty to provide workers with a safe and healthy workplace free from recognizable harms, and may be required to take certain steps under the recent PA order, employers should use these documents to plan, prepare, and respond to the threat of coronavirus in the workplace.

Unfortunately, the right to a safe and healthy workplace is hard to enforce. OSHA is responsible for enforcing the federal law, but is understaffed to do so. You can file an OSHA complaint online or by calling your local OSHA Area Office; however, such a complaint may not lead to immediate improvements at the worksite.

Workers can also report unsafe workplaces in violation of the Secretary of the PA Department of Health’s Order by using the online PA Department of Health COVID-19 Complaint Form.

The best way to improve your working conditions may be for two or more workers to jointly approach the employer with your concerns. You should tell your employer why you are worried about your safety and should refer them to the requirements under the PA Health Secretary’s order and/or the recommendations set forth in the OSHA or CDC guidance discussed in Question 1. Working together, you and your co-workers can request information regarding your health and safety in the workplace, demand a safe and healthy workplace, and/or demand paid leave. If you do not feel comfortable approaching your employer in-person, you could consider sending a letter or email signed by employees or on behalf of other employees, or creating an online petition (for example, through coworker.org).

Co-workers acting together to address workplace issues is considered “protected concerted activity” under the federal National Labor Relations Act (NLRA). Under the NLRA, your employer cannot retaliate against you and your co-workers for acting together to stay safe at work. If your employer retaliates against you for making a group complaint, you can file an unfair labor practices charge with the National Labor Relations Board (NLRB). You were engaged in “concerted protected activity” that should not have been penalized. Unlike OSHA, the NLRB may step in early to try to get you back to work.

If you are concerned about health and safety in the workplace and would like help to navigate your options, please contact CLS at 215-981-3700.

If you have taken the steps outlined in Question 2 and your employer still does not make your workplace safer, you can refuse unsafe work that you believe would create a real and apparent hazard to you or your co-workers. If you decide to refuse to work, you should try to organize with your co-workers to jointly refuse to work until the hazard is corrected. As discussed in Question 2, by acting together, you and your co-workers will have greater legal protections under the National Labor Relations Act if your employer retaliates against you for doing so.

Another option is to quit and file for Unemployment Compensation (UC) benefits (discussed further in Questions 13-19). Under the UC law, however, you must try to work out the situation with your employer before you quit. To best prepare your claim that you had “good cause” to quit and thus qualify for UC benefits, you should send your employer a detailed explanation of your concerns in writing. Make sure that you have access to a copy (that is, don’t just send it from your work email, to which you could lose access if you lose your job).

The Governor has issued a Stay-At-Home Order for Pennsylvania that requires all non-life-sustaining businesses to close. If you believe that the business you work for is not on the Governor’s list of “life-sustaining businesses” that is allowed to continue physical, in-person operations, you can contact your local law enforcement agency’s non-emergency number (by dialing 311) or the nearest PA State Police station (do not call 911). In some circumstances, the police have shut down businesses that are operating in violation of the Governor’s Order. You can also make a report using the online online PA Department of Health COVID-19 Complaint Form.

In addition to reporting the employer, you and your co-workers should work together to raise this issue as a group to your employer. You can do this in-person or in writing. You can ask your employer to use any available paid time off or other leave (see Questions 7-9 about the types of leave available to workers), or demand that your employer provide additional leave. If your employer refuses to provide such leave, you and your co-workers may also consider refusing to work in unsafe conditions (see Question 3 for more information about refusing unsafe work). If your employer punishes or terminates you for raising these concerns, you may have a possible claim for retaliation under the NLRA or wrongful termination in violation of public policy and should contact CLS at 215-981-3700.

Another option is to quit and file for Unemployment Compensation (UC) benefits (discussed further in Questions 13-19). Under the UC law, however, you must try to work out the situation with your employer before you quit. To best prepare your claim that you had “good cause” to quit and thus qualify for UC benefits, you should send your employer a detailed explanation of your concerns in writing. Make sure that you have access to a copy (that is, don’t just send it from your work email, to which you could lose access if you lose your job).

If you are laid off, you should apply for UC benefits as soon as possible. For more information about eligibility for UC benefits, or how to apply, see Questions 13-19.

Yes, you may be eligible for up to 12 weeks of partially-paid leave under the federal Families First Coronavirus Response Act (FFCRA), as well as up to 40 hours of paid or unpaid sick leave under the Philadelphia sick leave law. These laws are explained in more detail in Questions 7-9.

Yes.  You may be eligible for up to 2 weeks of fully- or partially-paid sick leave to care for yourself or a family member under the federal Families First Coronavirus Response Act (FFCRA), as well as up to 40 hours of paid or unpaid sick leave under the Philadelphia sick leave law.  These laws are explained in more detail in Questions 7-9.

The FFCRA is a federal law that provides 2 weeks (up to 80 hours) of paid sick leave for eligible employees for reasons related to coronavirus. You can receive paid sick leave under the FFCRA if you work for a public employer of any size or a private employer with fewer than 500 employees. Both full- and part-time employees are eligible, regardless of immigration status. If you are a healthcare provider or an emergency responder, you may not be covered by the FFCRA and should check with your employer.

Under the FFCRA, you can receive full pay (up to $511 per day or $5,110 total) if you are unable to work (including telework) because:

• You think you have coronavirus and need to get tested or seen by a doctor;
• A health care provider has told you to self-quarantine;
• You are under a federal, state, or local quarantine or isolation order; or
• You are complying with recommendations from a public health official.

You can receive 2/3 pay (up to $200 per day or $2,000 total) if you are unable to work (including telework) because:

• You are caring for an individual who is self-isolating because of diagnosis or symptoms of coronavirus; or
• You are caring for your child if their school or place of care is closed, or if the person who usually takes care of your child is not available.

You can use sick leave under the FFCRA immediately, regardless of your length of employment. Sick leave under the FFCRA is in addition to any sick leave you may have under other laws or your employer’s policies. Your employer cannot require you to use any other PTO benefits prior to the use of paid sick time under the FFCRA.

Please note that under the FFCRA small businesses with fewer than 50 employees may claim an exemption from the requirement to provide paid sick leave for childcare-related reasons if the employee’s absence would cause the employers’ costs to exceed its revenues, pose a substantial risk, or prevent the employer from operating at minimum capacity.

If your employer terminates your employment or closes its business, it is not required to pay you for any unused sick time under the FFCRA. If you are denied paid sick leave in violation of the FFCRA, you can file a FFCRA complaint with the U.S. Department of Labor’s Wage and Hour Division by calling 1-866-487-9243.

You may be eligible for additional paid time off under the FFCRA for childcare purposes related to coronavirus.

In addition to the sick leave explained in Question 7, the FFCRA also provides eligible employees with 12 weeks of job-protected leave through an expansion to the federal Family and Medical Leave Act (FMLA). Eligible employees can use such leave only to care for a child who is home due to a school closure or whose care provider is unavailable due to reasons related to coronavirus. Both full- and part-time employees are eligible, regardless of immigration status. The only requirement is that you must have been employed for at least 30 days.

The first two weeks of leave are unpaid, but an employee may substitute FFCRA emergency paid sick leave during this period. The remaining 10 weeks of leave are partially-paid at 2/3 of the employee’s regular rate of pay (up to $200 per day or $10,000 total).

Your employer cannot require you to use any existing PTO (such as vacation days or personal days) before using expanded FMLA leave. Your employer can, however, require you to use any accrued PTO at the same time as expanded FMLA leave in order to supplement the 2/3 pay, so that you will receive the full amount of your normal pay.

Please note that this leave counts as regular FMLA leave, so any amount used will reduce the amount of FMLA leave you can take for other reasons during the applicable FMLA year. Further, any FMLA leave that you have already taken in the applicable FMLA year will reduce the amount of FMLA leave that you have available for this purpose.

As with sick leave under the FFCRA, small businesses with fewer than 50 employees may claim an exemption from the requirement to provide paid family and medical leave for childcare-related reasons if the employee’s absence would cause the employers’ costs to exceed its revenues, pose a substantial risk, or prevent the employer from operating at minimum capacity.

If you are denied paid family and medical leave in violation of the FFCRA, you can file a FFCRA complaint with the U.S. Department of Labor’s Wage and Hour Division by calling 1-866-487-9243.

You may also be eligible to additional paid sick leave under the Philadelphia sick leave law, explained in more detail in Question 9 below, or pursuant to your employer’s policies.

If you are ineligible for or have exhausted leave under the FFCRA, you may be eligible for additional paid leave under an emergency expansion of Philadelphia’s sick leave law. Under this expansion, workers can now use sick leave for reasons related to coronavirus. Both full- and part-time employees, regardless of immigration status, are eligible; however, there are certain requirements:

• You must have worked at least 40 hours per year in Philadelphia; and
• You must have worked at least 90 days on the job before you can use this sick time.

Under the Philadelphia sick leave law, employees accrue 1 hour of sick time for every 40 hours of work, and can earn up to 40 hours of sick leave in total. If your employer has 10 or more employees, this leave must be paid. If your employer has 9 or fewer employees, this leave may be unpaid. Unfortunately, gig workers, independent contractors, union members, and seasonal workers are not covered by the Philadelphia sick leave law.

Eligible employees with accrued sick leave can now take time off for:

• Mandated business closures;
• Caring for children during school or childcare closures;
• Official quarantine and self-quarantine (including for high-risk individuals); and/or
  • Illness and treatment of an illness for yourself or a family member.

You should also check to see if your employer provides sick leave beyond what is required under the Philadelphia sick leave law.

If you believe you are eligible for sick leave, you should inform your employer of the need to use such leave as soon as possible. The laws discussed above prohibit retaliation, so your employer is not legally permitted to discharge, discipline, or otherwise discriminate against you for requesting or taking such leave, or filing a complaint related to sick leave.

If your employer terminates your employment, the city agency that enforces the Philadelphia sick leave ordinance requires that your employer pay you any accrued but unused sick time upon termination. If your employer denies you sick leave, if you are laid off and your employer refuses to pay you for any accrued but unused sick leave upon termination, or if you are retaliated against for requesting or using sick leave, you should immediately file a complaint with the Philadelphia Mayor’s Office of Labor. Complaint forms are available on their website, and may be emailed or mailed. You can also call 215-686-0802. If you need further assistance, please contact CLS at 215-981-3700.

Yes.  All eligible employees, regardless of immigration status, can use leave under the Philadelphia sick leave law and the FFCRA.

No. The FFCRA only applies to W2 employees. The Philadelphia sick leave law does not apply to gig workers, independent contractors, union members, or seasonal employees.

Eligible self-employed individuals may, however, be eligible for anincome tax credit for required paid leave under the FFCRA to offset their federal self-employment tax for any taxable year equal to their “qualified sick leave equivalent amount” or “qualified family leave equivalent amount.”

If you believe that you have been incorrectly classified as an independent contractor when you are actually an employee, you may be eligible for paid sick or family or medical leave (see Question 22 for more information).

If you are a gig worker or independent contractor and your hours have been reduced or you are out of work for reasons related to coronavirus, you may be eligible to apply for Pandemic Unemployment Assistance (see Question 21 for more information).

If you are a non-exempt/hourly worker, your employer is required by law to pay you for all hours that you actually worked. However, if your employer instructs you not to come in to work because the employer has been encouraged or ordered to limit or suspend operations by government authorities, or otherwise is concerned about the safety of employees, then the employer is not required to pay you for your regularly-scheduled shifts (so long as you are not working remotely).

If you are an exempt/salaried employee you must receive the full salary for any week in which you perform any work (including telework), regardless of the number of days or hours worked. Exempt employees do not need to be paid for any workweek in which they perform no work.

Please note that the Philadelphia Fair Workweek law went into effect on April 1, 2020. This law requires covered employers to provide service, retail, and hospitality workers with a predictable work schedule. It also requires good faith estimates of work schedules at the time of hire and 10 days advance notice of schedule, along with other protections. Covered employers include those with 250 or more employees worldwide and 30 or more locations worldwide, including chain establishments and franchises.

You should apply for PA Unemployment Compensation as soon as possible. You may qualify for Pennsylvania UC benefits if:

• Your hours have been reduced because of the public health crisis;
• You have been temporarily laid off or your workplace has closed;
• You were sent home from work due to minor symptoms related to coronavirus;
• Your work was interrupted because you need to care for a family member;
• You were fired when you refused to work in unsafe conditions; or
• You quit to avoid unsafe conditions.

UC benefits now run for 39 weeks under the federal Coronavirus Aid, Relief, and Economic Security (CARES) Act’s expansion of state unemployment insurance. Additionally, those who qualify for any level of UC benefits can receive an extra $600 per week through July 31, 2020. You do not have to take any additional steps to receive the additional $600, which will be paid in addition to and at the same time as regular UC benefits.

For more information about how to apply for UC benefits, see Question 19.

Additionally, if you have been temporarily or permanently laid off from your job due to coronavirus-related reasons, the agency enforcing the Philadelphia sick leave law requires that your employer pay you any accrued but unused sick time upon termination. Your employer is not required to pay you for any unused sick time under the federal Families First Coronavirus Response Act. You also must be paid for all hours worked. If your employer has withheld any owed sick pay or wages you think you are entitled to, you can file a wage theft of sick leave complaint with the Philadelphia Mayor’s Office of Labor or contact CLS for assistance at 215-981-3700.

You may qualify for Pennsylvania Unemployment Compensation benefits if your hours have been reduced because of the public health crisis.  For more information about eligibility and how to apply, see Questions 13 and 19.

It depends. Immigrant workers who are legally authorized to work in the United States (such as asylees, refugees, DACA recipients, TPS recipients, work visa-holders, and lawful permanent residents) can qualify for Pennsylvania unemployment compensation (UC) benefits. When you apply, you will be asked for your A-number. Later, you may receive a letter requesting copies or scans of your work authorization document. Lawful permanent residents can provide copies of a permanent resident card (front and back) and a Social Security card (front and back).

Unemployment also accepts other forms of proof, so you can send a copy of whatever work authorization document(s) you have. Immigrant workers should know that receipt of unemployment compensation will not negatively affect a noncitizen’s immigration status or result in a public charge bar to residency or other nonimmigrant status in the future.

Unfortunately, undocumented workers are not eligible for Pennsylvania UC benefits.

For more information about how to apply for unemployment compensation benefits, see Question 19.

Yes, but it may be difficult.  If your employer pays you cash “under the table,” they are not paying taxes that fund unemployment benefits.  As a result, you may not initially be financially eligible for benefits if you file a UC claim.

In order to collect benefits, you will have to show the unemployment agency that you did, in fact, work for your employer; that you earned enough to qualify for benefits; and that you are out of work for a reason that makes you eligible for benefits.

Unless you have documentation or can get your former employer not to contest your assertions, this may be difficult to prove.

Although gig workers/independent contractors are not eligible for regular PA Unemployment Compensation, such workers may be eligible for a new unemployment program called “Pandemic Unemployment Assistance” (PUA). If you are a gig worker/independent contractor and have lost your job, lost business, had your hours reduced, or have been unable to work due to the coronavirus crisis you should apply for PUA.

While you may be eligible for regular UC benefits if you have been misclassified as an independent contractor (when you are, in fact, an employee), this determination process takes time and often involves appeals. To quickly receive benefits during this crisis, you should apply directly for PUA if you have been classified as an independent contractor (i.e., you receive a 1099 tax form).

For more information about PUA and how to apply, see Question 21.

No, you are not required to exhaust any existing sick leave or other PTO before applying for UC benefits (but you are required to report any PTO received on your bi-weekly UC claims).

On the other hand, you may want to consider using any available PTO before applying for UC benefits. Using existing PTO first may be preferable because you may receive more money than you would through UC, you may get to keep any existing employer-provided health insurance, and you can save some weeks of UC eligibility (i.e., extend the amount of time that you can receive an income while out of work).

The fastest way to apply Pennsylvania unemployment compensation (“UC”) benefits is online, but you can also call 1-888-313-7284. If at all possible, apply for UC benefits online, using a computer (instead of a cell phone or calling). You can apply as soon as your employment circumstances have changed. The earlier you apply, the earlier you can begin to receive benefits. Even if you are unsure that you are eligible for benefits, you should go ahead and apply. If you run into any issues with the application process, we recommend using theDepartment of Labor and Industry’s online chat system. If you need an interpreter, you can request one through the phone number above. The initial application for unemployment is available in Spanish online, and the website also allows you to view all of its pages in Spanish. You can refer to Philadelphia Legal Assistance’s “reason for separation” chart to help select the correct reason for separation on your UC application.

If you lack access to a computer or need assistance with your UC application, you should use Philadelphia Legal Assistance’s free UC application service hotline. The hotline number is 215-999-6910, and the hours are as follows:

Monday 9 am – 1 pm
Tuesday 1 pm – 5 pm
Wednesday 3 pm – 7 pm
Thursday 3 pm – 7 pm
Friday 10 am – 2 pm

After applying, you will get a “financial determination” about the amount of your UC benefit, but you still need a final decision on eligibility after that. If you are approved, you may not get a written eligibility decision, but the money will show up in your bank account. So, after that first financial decision, keep checking your bank account to see whether UC payments have been deposited.

After you open an unemployment claim, every two weeks you must file a claim on the PA Unemployment Compensation website or by calling 1-888-255-4728 to report any hours you worked, any paid time off you received, and/or any pay you earned.

For more guidance on eligibility for UC benefits and how to apply, visit Philadelphia Legal Assistance’s website.

The Coronavirus Aid, Relief, and Economic Security (CARES) Act created a new temporary federal program called Pandemic Unemployment Assistance (PUA). In general, PUA provides up to 39 weeks of temporary unemployment benefits to individuals not eligible for regular unemployment compensation or extended benefits, including those who have exhausted all rights to such benefits.

You should file for PUA if you are ineligible for regular UC because you have lost income due to coronavirus and:

• Are self-employed (like independent contractors, gig economy workers, and workers for certain religious entities);
• Are seeking part-time employment;
• Lack sufficient work history; or
• Have exhausted all rights to regular UC or extended benefits.

Weekly PUA benefits range from $195 to $572. All PUA recipients are also eligible for an additional $600 per week through July 31, 2020 from Federal Pandemic Unemployment Compensation. Unfortunately, undocumented workers are not eligible for PUA.

PUA benefits will be administered by the state, but PUA application will be separate from the regular UC application process. An application specific for PUA claims is available online; you should select “File for PUA”

Unfortunately, many employers misclassify employees as independent contractors to save money, even if the workers involved should really be treated as employees under the law. If you have been misclassified as an independent contractor (i.e., you receive a 1099 tax form rather than a W2), you may still be eligible for sick leave under the Philadelphia sick leave ordinance and/or the FFCRA. If you believe you have been misclassified and wrongly denied sick leave, you should file a sick leave complaint with the Philadelphia Mayor’s Office of Labor Complaint forms are available on their website, and may be emailed or mailed. You can also call 215-686-0802.

While you could apply for regular UC benefits if you were misclassified, this process will likely take a longer than the usual time because you will need to prove to the unemployment agency that you are in fact an employee, not an independent contractor. This typically involves an initial denial and appeal. To receive income more quickly during this crisis, we recommend applying directly for PUA if you have been classified (either correctly or incorrectly) as an independent contractor, as described in Question 21.

The one-time IRS “economic impact payment” created under the federal Coronavirus Aid, Relief, and Economic Security (CARES) Act is automatic for most taxpayers. No further action is needed by taxpayers who filed a federal income tax return for 2018 or 2019.

If you DO NOT usually file taxes and receive Social Security retirement, SSI, disability (SSDI), VA or Railroad Retirement benefits, no further action is required unless you have dependent childen. You can receive an additional $500 for each dependent child under 17 but you must file for it using the  IRS “Non-Filers” form. The deadline to file for payment for SSI recipients is Tuesday May 5^th. The deadline to file for payment for SSDI recipients was Wednesday, April 22^nd at noon. VA and RRB beneficiaries should file as soon as possible.

Generally, this economic impact payment is available to U.S. citizens or resident aliens who:

• Have a valid Social Security Number
• Could not be claimed as a dependent of another taxpayer, and
• Had adjusted gross income under certain limits.

Individuals making $75,000 or less per year will receive a $1,200 payment. These amounts are doubled for married couples. Families with children will receive an additional $500 per child under 17 years of age. For individuals making more than $75,000 per year, the payment amount is decreased until it is completely phased-out for taxpayers with incomes exceeding $99,000 (double for married couples). Qualifying incomes will be based on 2019 federal tax returns, if already filed, and otherwise on 2018 returns.

If you are eligible for this payment, no further action is necessary. The IRS will send your payment either to the direct deposit or mailing information on your 2019 tax return. If you have not filed your 2019 tax return yet, but filed a 2018 tax return, the IRS will send your payment to the direct deposit or mailing information on your 2018 tax return. If the direct deposit or mailing information on your 2018 return is no longer valid, you need to file your 2019 taxes electronically as soon as possible. This is the only way to let the IRS know your new information. If the IRS does not have your direct deposit information from your 2018 or 2019 return – and hasn’t yet sent your payment – you can use the IRS’s Get My Payment application to let the IRS know where to send your direct deposit.

For more information on Economic Impact Statements, please see this CLS FAQ.

A number of funds have been set up to assist workers not otherwise protected under the law. Below are just a few such funds that may be able to help undocumented workers who are out of work due to the public health crisis:

• Restaurant Opportunities Centers United, Restaurant Workers Relief Fund: for restaurant workers in need of financial assistance.
• One Fair Wage Emergency Fund: cash assistance for restaurant workers, car service drivers, delivery workers, personal service workers and more who need the money.
• Another Round, Another Rally Emergency Assistance: for workers in the hospitality industry, dishwasher, bartender, server, busser, chef, cook, sommelier, manager, host, concierge, cleaning staff, or bar back may apply for funds.
• Restaurant Workers’ Community Foundation: for emergency assistance for those employed by restaurants or bars or are employed by a restaurant or bar supplier.
• National Domestic Workers’ Alliance Coronavirus Care Fund: $400 in emergency assistance for qualifying home care workers, nannies, and house cleaners who are experiencing financial hardship due to the coronavirus pandemic. The Fund is currently only open to those who have participated in NDWA activities but will be expanded to other domestic workers if funding allows, so all are encouraged to apply.
• Hospitality Assistance Response of Pennsylvania (HARP): provides immediate emergency funding to hospitality workers. HARP will distribute one-time individual grants of $250 to front-line hospitality industry employees. Grants will be awarded on a first-come, first-served basis and subject to the availability of funds at the time.

If you have any questions related to your employment rights related to COVID-19, you can find more information on CLS’s website, or by calling 215-981-3700.