With the passage of the Families First Coronavirus Response Act (“FFCRA”), employers must be prepared for issues that will inevitably arise as employees are asked to come back to work. Some issues to consider are the following:
1. What should employers do if employees are reluctant to come to work?
For an employee to invoke Emergency Paid Sick Leave (“EPSL”) under the FFCRA:
The employee must be: 1) subject to federal, state, or local quarantine or isolation order due to COVID-19 concerns and is unable to work because he or she is subject to the quarantine; 2) advised by a health care provider to self-quarantine due to COVID-19 concerns; 3) experiencing COVID-19 symptoms and seeking a medical diagnosis; 4) caring for someone who is subject to either 1 or 2 stated above; and/or
5) caring for his or her child due to childcare or school closure as a result of COVID-19 precautions.
- EPSL provides leave at the employee’s regular rate of pay, for leave taken due either number 1, 2, or 3 outlined above.
- EPSL provides leave at least 2/3 of the employee’s rate of pay, for either number 4 or 5 outlined above.
For employees to invoke paid Expanded FMLA leave:
The employee must be caring for his or her child due to childcare or school closure as a result of COVID-19 precautions.
- FFCRA provides leave at least 2/3 of the employee’s rate of pay, for an employee caring for his or her child due to childcare or school closures as a result if COVID-19 precautions.
For an employee to invoke their 12 weeks of unpaid FMLA leave:
He or she must have a “serious health condition” and otherwise satisfy the FMLA eligibility criteria. For example. if the employee begins to experience symptoms of COVID-19 while in self-quarantine, the employee could be eligible for regular unpaid FMLA.
Although COVID-19 may be considered a “serious health condition,” (i.e., a physical or mental condition that involves inpatient care or continuing treatment) employees who refuse to come to work of fear of contracting COVID-19 would not typically qualify for FMLA leave.
2. What documentation may I request from employees who invoke FFCRA?
For self-quarantine: a district may ask the employee to provide a copy of a government self-quarantine order, or a recommendation for self-quarantine from a health care provider.
Note: The employee may only take paid leave if being subject to one of these orders prevents him or her from working or teleworking. The question is whether the employee would be able to work or telecommute “but for” being required to comply with a quarantine or isolation order.
If the employee is taking EPSL due to symptoms of COVID-19: the district should request documentation from a health care provider advising the employee to self-quarantine or proof that the employee sought a medical diagnosis for their symptoms. See 6 below.
If the employee is taking EPSL or FFCRA FMLA to care for a child after the closure of a childcare facility or school: the district may request evidence of the closure. This documentation may be posted on the local or state government website; for example, if the local municipality has issued a stay-at-home order closing all non-essential businesses,
then the employee would need only provide a copy of (or link to) that order to show closure of a child care facility. Likewise, an email received from the school or facility would suffice.
3. What if the employee does not provide sufficient paperwork?
If the employee does not provide sufficient proof that they are eligible for paid leave under the FFCRA, then the employee may be required to use their accrued leave time whether paid or unpaid.
In addition, employees who are absent because of COVID-19 related symptoms should not be able to return to work unless they provide a doctor’s note certifying fitness for duty. See 6 below.
If the employee is not eligible for FFCRA and has used all their accrued leave, their absences may not be protected leave. Please consult with an attorney if you are considering termination.
4. What information may an employer reveal if an employee is quarantined, tests positive for COVID-19, or has come in contact with someone who has the virus?
Employers should not identify any such employees by name in the workplace to ensure compliance with privacy laws. Employers must notify affected employees in a way that does not reveal the personal health-related information of an employee.
5. What about employees who do not want to come to work because they have preexisting conditions that may make them more vulnerable to COVID-19 infection or that is exacerbated by the COVID-19 pandemic?
As with any accommodation request, employers should engage in the interactive process such as: asking questions to determine whether the condition is a disability; discuss with the employee how the requested accommodation would assist him and enable him to keep working; explore alternative accommodations that may effectively meet his needs; and request medical documentation if needed.
6. When employees return to work, does the ADA allow employers to require a doctor's note certifying fitness for duty?
Yes. Because of the current pandemic, such inquiries would be justified under the ADA standards for disability-related inquiries of employee. As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic. Therefore, reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic
virus may suffice.
Additional Topics to Be Covered in Tomorrow’s Training
- Review of the Families First Coronavirus Response Act (FFCRA).
- Intersection between employer-provided paid leave and FFCRA.
- The availability of intermittent leave under FFCRA.
- Best practices for verifying employee eligibility through documentation.
- Potential pitfalls Districts should be aware of, illustrated through case examples.
Article written by Michelle Alcala.
