In the space of 2 weeks, COVID-19 has resulted in new laws, on both the federal and state level. The workplace looks and feels much different, as many are either out of work or working from home. It took a pandemic just to get a federal law that temporarily allows paid sick and limited paid family leave. Along with my colleagues, I’m getting questions from employers about what they can and can’t do, what they do and don’t have to do. At the same time, we’re all being inundated with posts and articles and news briefs about the Families First Coronavirus Response Act (FFCRA), its tax credits and the Coronavirus Aid Relief and Economic Security (CARES) Act. It’s confusing on a good day. While I can’t clear all of that up in one post, I can at least focus on a piece or two — maybe three. What hasn’t changed? What do you still have to do? Now that the FFCRA is in effect how do you handle requests for COVID-19 related leave? Read on and I’ll aim to tackle those questions… So what hasn’t changed? For starters, anti-discrimination laws. Specifically, the ADA, Title VII and the ADEA are not on hold. The pandemic does not give employers license to ignore these laws. With that said, the EEOC has through publications and even a webinar last week made it clear that there are some things that in normal times would be illegal under the ADA that you can do while the pandemic continues. You can — and should– follow CDC guidelines. In addition to the ADA, the OSH-Act is also still intact. Under the OSH-Act employers must take reasonable steps to ensure a safe workplace for their employees.
So what can (and can’t) you do to balance the seemingly competing obligations under both the ADA and the OSH-Act? You can take employees’ temperatures as they enter the workplace. Yes, that is a medical exam, which you normally can’t do under the ADA, but the ADA also allows medical exams that are job-related and consistent with business necessity. Safety, public health. Yeah, I think those are a business necessity, don’t you? You can ask employees if they have symptoms associated with COVID-19. You can ask employees if they’ve been tested for COVID-19. You can ask employees if they’ve had contact with anyone exhibiting COVID-19 symptoms or anyone who’s tested positive for COVID-19. You can’t ask for other medical information related to the employee (likely ADA and GINA violations) or an employee’s family member (potential GINA violation).
OK, from whom can and can’t you request this information? Wait. Didn’t we just establish you can ask employees about COVID-19 symptoms and exposure? Yes, but you can’t just single out some employees and not others — unless you have an objectively sound reason for doing so. For example, you may ask one particular worker that shows up to work with a hacking cough if s/he has other COVID-19 symptoms, if s/he’s been tested, exposed to someone with COVID-19, etc. You can take their temperature. Again, you can ask every employee entering the workplace these same questions. You can’t limit your questions to people that you know have other medical issues solely because of those pre-existing conditions, however. You can’t limit questions or testing to or impose greater requirements on those of Asian descent, just because the virus originated in China. (That’s a likely Title VII violation).
What if an employee refuses to have their temperature taken, answer questions or be tested? Before you jump to any conclusions, ask the employee why s/he’s refusing. S/he may just need a bit of reassurance, after which s/he may well agree. If that doesn’t work, then, yes you may bar the employee from entering the workplace. Again, you may do so in response to a pandemic, whereas you probably could not do so in normal times.
What can – and should- you do once you learn an employee has COVID-19 or is symptomatic? Should you report it? Can you? Yes and yes. Wait. Don’t you have to keep the information confidential? Yes. So how do you report it and keep confidentiality? You can report to appropriate authorities within the company that you have a COVID-19 situation so that the company can now fulfill any public health and worker safety obligations. The specifics, to the extent you have them, should stay in an employee’s medical file (that you keep separately from his/her general file). Access would be on a need-to-know basis: only those who truly need to know in order to do their job, and only as much information as they need to know. While management may know the names of each employee with COVID-19 or with symptoms, the entire workforce does not need that information. Yes, I know your other employees may be able to guess, particularly if you are a small company. They can guess. You can’t confirm or otherwise reveal names. What if an employee is teleworking for COVID-19 reasons? You can confirm that an employee is teleworking — but not the reasons. Similarly, you can confirm that an employee is on leave, but not the reasons. Revealing too much information could open your company up to an ADA and possibly an invasion of privacy claim.
What about leave requests? How should you handle them? Can an employee just claim they need to quarantine, get 2 weeks’ paid sick leave and that’s it? How do you know the request is valid? While initially, an oral request is valid, no, you do not have to just take the employee’s word that s/he really is using his/her paid leave as the FFCRA intended. Employees do have to provide documentation, you are not only allowed to request it, but you will need it so that you can qualify for the tax credit the FFCRA provides you. At a minimum, you should get from the employee:
- name, date(s) and qualifying reason(s) for the leave;
- statement (preferably in writing) that the employee can’t work because of the qualifying reason(s);
- name of entity or agency issuing quarantine or isolation order, if applicable (paid sick leave only);
- name of health care provider who advised self-quarantine for concerns related to COVID-19, if applicable (paid sick leave only);
- name of government entity issuing quarantine order, or health care practitioner advising self-quarantine for leave to care for someone subject to either;
- name of child and name of his/her school or childcare provider, and statement that no one else is available to care for the child during the time in question, if applicable.
What if the employee doesn’t provide documentation? You might need to be a bit flexible with the turnaround time regarding documentation from a healthcare provider, as many of them are overwhelmed. Employees should be able to provide documentation of a school closing or a government agency order. As for notes from a healthcare practitioner, you may also be able to get the name of the practitioner and follow up. The best practice may be to err on the side of caution and at least grant provisional leave and then investigate to the best of your ability under the circumstances. If you use forms for leave requests (if you don’t I recommend creating such a form and using it now) you can include a statement in the form where the employee certifies that: a) s/he is taking leave for the reason s/he has specified, AND b) all of the statements in the form are true; AND c) that the employee understands that if any of the statements are found to be willfully false, s/he will be subject to discipline up to and including termination of employment. The employee is now on notice. You can then follow through if you do become aware of an employee who made a false request.
Note that an employee who doesn’t want to come to work because they’re afraid, without more, is not entitled to paid, protected leave under FFCRA.
Before you go ahead and discipline any employee you believe to have committed leave abuse under the FFCRA, however, please consult an employment attorney. The FFCRA was enacted quickly and there is still a lot about it and its implications that are not certain.
Hope this helps. Stay healthy and safe!
Watch the latest video clip in my series, “Ask the Employer’s Lawyer: My Employee Has Exhausted All Her FMLA Leave Time. What do I do?
Watch my television interview on Stop My Crisis with Vivian Gaspar.
Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
Before choosing an attorney, you should give this matter careful thought. The selection of an attorney is an important decision. If you find this communication to be inaccurate or misleading, you may report it to the Committee on Attorney Advertising Hughes Justice Complex, CN 037, Trenton, NJ