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No Job Protection for Older Workers Still Under Quarantine? Seriously, Georgia?

Posted by Kathy Harrington-Sullivan | May 13, 2020 | 0 Comments

The Governor's April 30th Executive Order extended the shelter in place requirement for high-risk individuals, including those over 65 years of age, through June 12, 2020. It's commendable that there is concern for the health of high-risk Georgia residents, but where is the concern for their jobs?

Unfortunately, this is nothing new for Georgia, which is at-will and pro-employer to a fault. The best example I can think of is that Georgia laws require mandatory reporting of child abuse by certain professionals (e.g., teachers, doctors, nurses), and, further, failure to do so is a misdemeanor. But unlike many other states, Georgia affords employees zero job protection for employees who report in compliance with the law.

Let that sink in for a minute. Crazy, right? Oh, and no state-level sexual harassment laws on the books (despite Amanda Farahany's best effort to get some passed), let's not leave that one out.

Most protections we get as employees in Georgia come from federal law. In the current situation, the Americans with Disabilities Act (ADA) may provide some options in the form of reasonable accommodations for those who are high-risk because of an underlying disability. For those who are symptomatic or who test positive for COVID, regular FMLA may also provide some relief, assuming they qualify based on length of employment and number of hours worked. But what about employees still quarantined solely because of their age who are being called back to non-remote work by their employers?

Other (forward-thinking) states have put job protections in place for those affected by COVID and quarantine: Maryland prohibits employers from terminating employees solely on the basis that the employee has been required to be isolated or quarantined; Florida makes it unlawful for any employer to retaliate or threaten to retaliate against a non-essential employee who complies with County Executive Orders issued during a state of emergency; and, New Mexico prohibits an employer from discharging a person who is placed in isolation or quarantine pursuant to the Public Health Emergency Response Act. Still other states have relaxed leave laws or provided state-level leave benefits and pay as a back-stop for what the federal relief laws may not cover.

In contrast, Georgia hasn't done anything extra to help employees who fall into the cracks between the Executive Order quarantines and the federal relief laws. The Families First Coronavirus Response Act (FFCRA) would at least give these still-quarantined employees 2 weeks of paid leave because of the Executive Order, but most employees are likely to have already exhausted that, given that quarantines have been in place for months. The additional 10 weeks of expanded Family Medical Leave under the FFCRA won't apply to this group because their inability to return to work isn't related to a school or childcare facility closure. The CARES Act won't help because they are still employed (albeit hopefully getting partial unemployment pay and the unemployment benefit boost that the CARES Act provides).

So for workers over 65 who don't have underlying health issues and aren't exhibiting symptoms or testing positive for COVID, i.e., healthy employees with the need and physical ability to return to work, an Executive Order requiring quarantine without providing any job protection is a huge oversight. The employers who choose to terminate these workers may still face age discrimination claims. The state will have to pick up yet more tabs for unemployment claims, and the feds will have to boost more benefits under the CARES Act. Worse, these employees will have to choose between their health (via compliance with the Governor's Executive Order) or their jobs. Sounds a little too much like "your money or your life," doesn't it? But maybe that's apt as long as the Governor's Executive Order keeps these workers in this bind.

About the Author

Kathy Harrington-Sullivan

Kathy Harrington Sullivan is a Partner at Barrett & Farahany who helps potential clients understand the law, clarify their rights, and determine which steps they can take to protect themselves and their jobs.

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