As the ball dropped Thursday night to a largely empty Times Square, the sun set on the Families First Coronavirus Response Act’s paid leave provisions. While 2020 may be in our rearview mirror, the pandemic has never been worse. Yet, Congress has just told America’s workforce to ignore the CDC’s quarantine and isolation guidelines and report for work, no matter who you’ve been in contact with or what symptoms you’re experiencing.

The leave offered by the Emergency Family and Medical Leave Expansion Act (EFMLEA) and the Emergency Paid Sick Leave Act (EPSLA) was never enough. It offered some amount of pay for workers who were doing the right thing and staying out of work because they had either been in contact with someone with COVID-19; were experiencing symptoms and seeking a medical diagnosis; or who lost childcare because their children’s school was closed for childcare quarantining. But they did not actually provide a cause of action to seek compensation against an employer who did not pay for this leave or who fired an employee for being unavailable. Still, the implication of these leave rights was that employers should keep employees’ jobs open under these circumstances and reinstate them upon their return to work.

If you think you have suffered wrongful termination or retaliation, contact the retaliation attorneys at Herrmann & Murphy.

Now, even that soft pressure on employers to do the right thing is gone. Yes, the newest stimulus bill extended tax breaks for employers that choose to continue providing such paid leave. But the presumption is that it is the employer’s choice. Employers will feel newly empowered to fire their employees if they are unable to physically come to work because they have COVID-19, they have COVID-19 symptoms and are awaiting a test result, they are caring for another under a quarantine or isolation order, or their child’s school or childcare is unavailable due to the pandemic.

If you think you have suffered unlawful retaliation, contact the employment attorneys at Herrmann & Murphy right away.

The solution for America’s workers is as obvious as it is heartbreaking. Go to work. Ignore the CDC’s guidelines. Ignore the social compact we’ve come to weave together over the last nine months. The result will be a surge on a surge on a surge and, sadly, more Americans will lose their lives. We have left America’s workforce no choice. We cannot ask them to voluntarily lose their jobs so that they can do what the  government has failed to do and “Stop the Spread.” The vast majority of Americans have made incredible sacrifices this year in order to save the lives of people they don’t even know. The selflessness shown by those of us who forced down another Zoom happy hour instead of a night out on the town has been nothing short of inspiring. But this ask is a bridge too far. People cannot be expected to let themselves be fired for following public health guidance. The law must match our public health and civic responsibilities or workers will, understandably, choose their own individual survival over their collective duty.

The new administration must reinstate paid COVID-19 leave and accompany it with enforceable job protection this time, if we are to ever stop this pandemic.

If you think you have suffered unlawful retaliation, contact the employment attorneys at Herrmann & Murphy right away.


Kevin Murphy of Herrmann & Murphy

Kevin Murphy

Sean Herrmann of Herrmann & Murphy

Sean Herrmann

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