NH employers, workers, navigate rights, obligations during reopening

Clear communication, transparency will be key, say attorneys
Terri Pastori

‘It’s important for employers to be very transparent, and to kick up their communication, and for employees to be comfortable asking questions,’ says attorney Terry Pastori.

Across New Hampshire, the economy is kicking to life in fits and starts. But as everyone adjusts to the new normal of conducting business during the pandemic, both employers and employees are struggling to understand their rights and obligations during coronavirus.

“We’ve never seen anything like this in our lifetime,” said Terri L. Pastori, an attorney at Pastori Krans in Concord. “It’s important for employers to be very transparent, and to kick up their communication, and for employees to be comfortable asking questions.”

Employee rights and employer obligations during the pandemic are governed by both state and federal mandates, so keeping up-to-date can be difficult. Here’s what employers and employees need to know as the state reopens:

Employees can continue to stay home, if they have a reason

Employees who are asked to return to work can decline and continue to collect unemployment if they are unable to work for one of the reasons underlined in the federal CARES Act, according to the New Hampshire Department of Employment Security.

That includes anyone in New Hampshire who is following the governor’s stay-at-home orders, caring for children who are home from school, or who has a specific medical concern that makes them high risk, Pastori said.

“New Hampshire has been pretty flexible with granting unemployment benefits,” she said.

After the school year ends, typically in early June, parents can continue to collect unemployment in order to care for their children if they can self-certify that the organization that provides their summer childcare — like camp or daycare — is closed “as a direct result of Covid-19,” according to Employment Security.

Some employees who are not collecting unemployment are eligible for up to 10 weeks of family or medical sick leave, paid at two-thirds of their normal wages, under the Families First Coronavirus Response Act. The act covers employers with between 50 and 500 employees, with some exceptions for healthcare providers and emergency responders.

You can’t say no to work just to stay on unemployment

No one can refuse to return to work just because they’re making more money on unemployment. That’s a fairly common scenario, since people who have lost their jobs because of the pandemic are eligible for state unemployment, plus an extra $600 a week in federal pandemic unemployment compensation.

“The idea that you’re getting more money on unemployment is not a sufficient justification not to go back to work if you’re called,” Pastori said.

Still, Pastori added, employers are worried that people may not be eager to return to work, especially in lower-paying jobs. Someone making the minimum wage of $7.25 an hour would only make $290 working a 40-hour week, but could make more than double that on unemployment.

“There could be an economic disadvantage to going back to work,” Pastori said.

Job security is only guaranteed for qualifying absences

Getting paid is one hurdle, but many employees are also concerned about whether they will have a job when they are able to return to work.

“That’s a real concern across the board,” Pastori said.

Here, things are less clear. If someone declines to go back to work because of a protected reason like needing to care for kids or having to self-quarantine because of a chronic condition, their job should be protected for when they are able to return to work. However, if a person opts not to return to work because of a general concern about coronavirus, “that doesn’t maintain job security,” Pastori said.

The federal Family and Medical Leave Act allows employees up to 12 weeks of unpaid leave to care for family members

or medical emergencies, if the employee and employer meets certain conditions. Some people who are taking time during the pandemic might qualify for FMLA.

If employers are following protocols and employees do not meet a qualifying reason for staying home from work, their job could be in danger if they choose not to return when called, said Beth Rattigan, chair of the Labor and Employment Group at Downs Rachlin Martin in Lebanon.

“If an employee doesn’t come back, [the employer doesn’t] have an obligation to that employee,” she said.

Expect a new normal in the workplace

As the economy reopens, Gov. Chris Sununu has issued guidelines that employers must follow. These include screening employees every day for symptoms of coronavirus, and requiring any sick employees to stay at home.

Normally, it would be illegal for an employer to ask health-related questions, let alone take employee’s temperatures

Beth Rattigan Bio Photo0

‘Employers are very concerned with the logistics’ of screening employees for Covid-19, says attorney Beth Rattigan.


“This is a departure from what the [federal Equal Employment Opportunity Commission] might ever have allowed,” Rattigan said. “Normally, this is not the kind of thing that employers are used to doing.”

While the guideline isn’t legally binding in the traditional sense, since it is not law, Rattigan is encouraging her clients to follow the state-issued guidance.

“I would say this is a requirement,” she said.

That has left employers trying to figure out systems for doing the screening in a timely and private way, and storing the sensitive medical data.

“Employers are very concerned with the logistics of this,” Rattigan said.

Employees who decline screening would have to be sent home, and declining could jeopardize their job, Pastori said.

“It’s my opinion that employees don’t have a right to opt out and still enter the workplace,” she said, adding that employees with privacy concerns should talk to their employer ahead of time.

Overall, Pastori expects the pandemic to change the way employers and employees approach sick leave and time off work.

“The psyche of the workforce may change,” she said. “We can all tell stories of people who have muscled through being sick because they had a lot of work to do. This is a game-changer in regards to this. The message is: if you’re unwell, stay home. You can’t be penalized for that.”

This article is being shared by partners in The Granite State News Collaborative. For more information visit collaborativenh.org.

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