Questions and Answers (Q&A) – National Disease Emergency Response Agreement (NDERA)

Brothers and Sisters,

Please see the attached FAQ from the International for information regarding coronavirus job protections:

Q: Does the NDERA protect an employee’s right to refuse to be present and/or request a layoff/furlough if he/she has a reasonable belief that being present would place them in imminent danger of contracting coronavirus?

  • Yes. The NDERA is designed to facilitate a return to work of employees who are out due to coronavirus, or who stay home because they have a genuine belief that being present would place them in imminent danger of contracting coronavirus. If the absence is for those reasons, then the recall rights, protections against adverse action, and unemployment protections in the NDERA apply. However, the employee must inform the employer that he/she is staying home due to coronavirus or because being present would place them in imminent danger of contracting coronavirus. Employees cannot be asked to go into any details about whether the employee has an underlying health condition or other concern. If the employee refuses to be present or is absent for other reasons, then the recall rights and protections under the NDERA do not apply.

Q: Can the employer deny an unemployment claim if an employee stays home because of a genuine belief that being present would place them in imminent danger of contracting coronavirus?

  • No. The Agreement provides that in such situations, unemployment shall not be contested. However, the employee must inform the employer as set forth above.

Q: Does having an imminent danger of contracting coronavirus take into account an individual’s own health and/or family situation?

  • Yes. If an employee’s own underlying health conditions or family situation (having an elderly relative at home, etc.) is such that the employee has a genuine belief that reporting to the job site would place him/her in imminent danger of contracting coronavirus, the recall rights, protection against adverse actions, and unemployment protections in the NDREA would apply. The employee must inform the employer as set forth above.

Q: Is there a difference between furlough and layoff? Is an employer required to furlough if a jobsite is restricted/denied access or may the employer issue a lay-off? Is there a difference under the NDERA?

  • No. There is no difference. We have seen questions asking if a layoff is somehow more severe or permanent than a furlough, and the answer is no. For purposes of the NDERA, the employer has the option to furlough/layoff under appropriate circumstances and use the recall process described in the Agreement. The employee is protected against adverse action as described in the NDERA.

Q: Do furloughed employees get sick or FMLA benefits under the newly passed Federal legislation?

  • This and similar questions are not within the purview of the NDERA. The law and regulations of the legislation will guide these responses.

Q: Does the language of the NDERA that specifies that the employer shall not “contest” unemployment benefits require the employer to fraudulently fill out the state unemployment paperwork?

  • No. The employer is not required or encouraged to violate federal, state or local law when responding to unemployment inquiries from the government. While forms vary, if leave is taken consistent with this Agreement, where possible the employer should note that separation of employment is due to “the COVID-19 Crisis” or similar language. The state at issue will make the unemployment determination.

 

Please reach out to us if you have any questions or concerns, and continue to stay safe and take care of yourselves during this difficult time.