It's clear that COVID-19 is surging in New Mexico. It's also clear that COVID-19 is negatively affecting working people, including employers firing workers because of COVID-19.
The law is playing catchup with COVID-19. But, I think you should contact me if your employer threatens to fire or fires you because you've been exposed to COVID-19 or been infected by the virus or because you've complained about your employer's failure to follow the public health order. To read the public health order go to this website: https://cv.nmhealth.org/public-health-orders-and-executive-orders/ .
If COVID-19 becomes an issue at work, you should first do what you can to work out the dispute with your employer. It's better to keep your current job if you can, because finding another is going to be difficult.
If you can't resolve the dispute with your employer, it is usually better not to resign or quit, especially if the employer wants you to sign a release or “separation agreement.” If the employer offers a payment to encourage you to resign or quit, then you'll have to decide if the money is enough to quit and have to find a new job.
Releases or separation agreements always favor the employer. You must read the release or separation agreement carefully. Almost all of them force the worker or employee to give up all of their legal rights against the employer for any alleged violations related to your employment and/or the termination, including unemployment benefits which most newly fired employees (and their families) desperately need.
It is extremely difficult to get unemployment benefits if you quit. Therefore, you must do what you can to have the employer terminate you of you want a chance at getting unemployment benefits. This is important, because you probably won't qualify for any future COVID-19 Federal supplements to unemployment if you don't qualify for New Mexico State unemployment benefits.
If you are considering resigning in exchange for a payment from the employer and you're also considering signing a release or “separation agreement,” then you should carefully consider the following:
- What are your chances of getting a similar paying job soon?
- In the next two to three months do you think you will need to apply for unemployment benefits?
- How long will the payment from the employer tide you over until you are able to find a new job?
- Do you think you might want to file a discrimination, retaliation, ADA, FMLA, wrongful termination or other type of employment case against the Employer?
- Are there COVID-19 laws that protect your job?
If you decide not to resign or quit, then you should give written notice to the employer that you are not going to quit. You want to ensure you have some written proof that you did not quit. You should also ask in the letter or email when you can return to work and ask for a specific date and time. This will put the onus on the employer to either put you back to work or to terminate you.
If you get written notice of termination or believe you have been terminated, you should apply for unemployment ASAP.
These are difficult times for everyone and it's a shame that working people have to also worry about their jobs.
If you think that your employer is violating your rights regarding your employment, please contact me as soon as possible at [email protected] or 505 292-8836 or at my website: www.bobscottlaw.com .
Took this picture today. So, glad that we're finally getting the monsoons.
Please be kind to each other; we need each other more than ever. And, please, please, please wear your mask. It does help.
Thanks for reading this.
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