Coronavirus (COVID-19) and Employees: Best Practices

Morale Resource LLC

Coronavirus (COVID-19) and Employees: Best Practices
 
By now I am sure that most employers are trying to figure out how the Coronavirus pandemic impacts their daily operation. It is evident that it has impacted revenue, normal operations, and safety protocols around PPE and handwashing practices, but what about attendance? I’ve included some considerations and best practices to consider as we navigate this road together as a business community.
 
Decide if a Doctor’s Note Should be Required
 
Encourage employees to stay home if they or a member of their household experiences symptoms such as fever, fatigue, or respiratory illness until they are free of fever and other symptoms, such as frequent and severe coughing, for at least 24 hours without the use of medicines (e.g., aspirin and cough suppressants). While you may want to require a doctor’s note, understand that all employees may not seek medical attention for various reasons. You should recommend that they reach out to a medical professional or a telemedicine service if available. Note: Do not check employee’s temperature at work for increases in body temperature. If you suspect an employee may be feeling ill, ask them to leave work or seek medical attention. Do not self-diagnose or discuss a possible diagnosis with other employees.
 
Be Lenient with Sick Leave
 
Be flexible with your employees regarding PTO and other sick leave policies. Employers may require employees who exhibit coronavirus symptoms or if an employee is returning from a country designated by the CDC and the World Health Organization (WHO) as having a high risk for COVID-19 transmission or has been exposed to someone ill with the virus. to stay home (approximately 14 days) or until they are symptom-free. Be cautious and temporarily modify your attendance policies. Required quarantines could encourage hourly workers who have no remaining paid sick days or other paid time off (PTO) not to reveal that they may pose a risk to others. In the meantime, consider if emergency catastrophe PTO can be granted if necessary, for hourly employees who would experience hardship if there were unable to work. I recommend that you allow hourly impacted employees to telecommute if possible. Allow your employees to take PTO or encourage them to utilize short term disability or a plan like AFLAC if they have elected it. Keep in mind that schools are closed after Wednesday this week. If employees can’t find adequate childcare during this time, I would recommend that you allow them to take time off paid or unpaid to guarantee the health and safety of their minor or disabled children/dependents. I recommend that you do not allow employees to bring children to the workplace for insurance purposes. The Trump Administration has introduced a bill that would provide relief to hourly workers suffering from economic fallout from COVID - 19, but nothing has been finalized.
 
Social Distancing
 
The CDC is encouraging all citizens to practice social distancing at this time. You can assist with social distancing at work by adopting practices that would allow employees to spread out and not work in close groups when necessary. Telecommuting is optimal.
 
When to Use FMLA (50 employees within 75 miles)
 
For long-term absence, most employees dealing with their own or a family member's serious illness can take up to 12 weeks of unpaid leave under the federal Family Medical Leave Act.
 
The FMLA rules regarding notices and documentation have not been lifted. Therefore, employers must continue to follow their regular and ordinary FMLA process including the notice of eligibility and rights and responsibilities, certifications, designation notice, and the fitness for duty. For your reference, I have included FAQs from the Department of Labor regarding Wage and Hour and FMLA. They can be found at Questions and Answers from https://www.dol.gov/agencies/whd/pandemic Wage and Hour (WHD)
 
• What are an employer’s obligations to an employee who is under government-imposed quarantine? The Department of Labor Wage Hour Division encourages employers to be accommodating and flexible with workers impacted by government-imposed quarantines. Employers may offer alternative work arrangements, such as teleworking, and additional paid time off to such employees.
 
• Can an employee be required to perform work outside of the employee's job description? Yes. The FLSA does not limit the types of work employees age 18 and older may be required to perform. However, there are restrictions on what work employees under the age of 18 can do. Consult with your human resources specialist if you expect to assign employees to work outside of their job description during a pandemic or other public health emergency.
 
• Are businesses and other employers required to cover any additional costs that employees may incur if they work from home (internet access, computer, additional phone line, increased use of electricity, etc.)? Employers may not require employees to pay or reimburse the employer for such items if telework is being provided to a qualified individual with a disability as a reasonable accommodation under the Americans with Disabilities Act. (See the U.S. Equal Employment Opportunity Commission’s publication, Work at Home/Telework as a Reasonable Accommodation, for additional information.)
 
Family Medical Leave Act (FMLA) • Which employees are eligible to take FMLA leave? Employees are eligible to take FMLA leave if they work for a covered employer and: have worked for their employer for at least 12 months; have at least 1,250 hours of service over the previous 12 months; and work at a location where at least 50 employees are employed by the employer within 75 miles.
 
• Must an employer grant leave to an employee who is sick or who is caring for a family member that is sick? An employee who is sick or whose family members are sick may be entitled to leave under the FMLA under certain circumstances. The FMLA entitles eligible employees of covered employers to take up to 12 weeks of unpaid, job-protected leave in a designated 12-month leave year for specified family and medical reasons. This may include the flu where complications arise that create a "serious health condition” as defined by the FMLA. Employees on FMLA leave are entitled to the continuation of group health insurance coverage under the same conditions as coverage would have been provided if the employee had been continuously employed during the leave period. Workers who are ill with pandemic influenza or have a family member with influenza are urged to stay home to minimize the spread of the pandemic. Employers are encouraged to support these and other community mitigation strategies and should consider flexible leave policies for their employees.
 
• Can an employee stay home under FMLA leave to avoid getting pandemic influenza? Leave taken by an employee for the purpose of avoiding exposure to the flu would not be protected under the FMLA.
 
• What legal responsibility do employers have to allow parents or caregivers time off from work to care for the sick or children who have been dismissed from school? Covered employers must abide by the FMLA. An employee who is sick, or whose family members are sick, may be entitled to leave under the FMLA. The FMLA entitles eligible employees of covered employers to take up to 12 weeks of unpaid, job-protected leave in a designated 12-month leave year for specified family and medical reasons which may include the flu where complications arise that create a "serious health condition” as defined by the FMLA. Employers are not required by federal law to provide leave to employees caring for dependents who have been dismissed from school or childcare. However, given the potential for significant illness under some pandemic influenza scenarios, employers should review their leave policies to consider providing increased flexibility to their employees and their families. Remember that federal law mandates that any flexible leave policies must be administered in a manner that does not discriminate against employees because of race, color, sex, national origin, religion, age (40 and over), disability, or veteran status.
 
• Is an employer required by law to provide paid sick leave to employees who are out of work because they have pandemic influenza, have been exposed to a family member with influenza, or are caring for a family member with influenza? Federal law generally does not require employers to provide paid leave to employees who are absent from work because they are sick with pandemic flu, have been exposed to someone with the flu or are caring for someone with the flu. If the leave qualifies as FMLA-protected leave, the statute allows the employee to elect or the employer to require the substitution of paid sick and paid vacation/personal leave in some circumstances
 
• May employers send employees home if they show symptoms of pandemic influenza. Can the employees be required to take sick leave? Do they have to be paid? May employers prevent employees from coming to work. Prepare a plan of action specific to your workplace, given that a pandemic influenza outbreak could affect many employees permits you to send employees home, but the plan and the employment decisions must comply with the laws prohibiting discrimination in the workplace on the basis of race, sex, age (40 and over), color, religion, national origin, disability, or veteran status. It would also be prudent to notify employees about decisions made under this plan or policy at the earliest feasible time. Your company policies on sick leave would determine whether you should provide paid leave to employees who are not at work. If the leave qualifies as FMLA-protected leave, the statute allows the employee to elect or the employer to require the substitution of paid sick and paid vacation/personal leave in some circumstances However, you may exclude an employee with a disability from the workplace if you: obtain objective evidence that the employee poses a direct threat (i.e. significant risk of substantial harm); and determine that there is no available reasonable accommodation (that would not pose an undue hardship) to eliminate the direct threat. (See the U.S. Equal Employment Opportunity Commission’s Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act for additional information.)
 
• May an employer require an employee who is out sick with pandemic influenza to provide a doctor’s note, submit to a medical exam, or remain symptom-free for a specified amount of time before returning to work? Yes. However, employers should consider that during a pandemic, healthcare resources may be overwhelmed, and it may be difficult for employees to get appointments with doctors or other health care providers to verify they are well or no longer contagious. During a pandemic health crisis, under the Americans with Disabilities Act1 (ADA), an employer would be allowed to require a doctor's note, a medical examination, or a time period during which the employee has been symptom-free before it allows the employee to return to work. Specifically, an employer may require the above actions of an employee where it has a reasonable belief – based on objective evidence – that the employee's present medical condition would
 
• impair his ability to perform essential job functions (i.e., fundamental job duties) with or without reasonable accommodation, or,
• pose a direct threat (i.e., significant risk of substantial harm that cannot be reduced or eliminated by reasonable accommodation) to safety in the workplace. In situations in which an employee's leave is covered by the FMLA, the employer may have a uniformly-applied policy or practice that requires all similarly-situated employees to obtain and present certification from the employee's health care provider that the employee can resume work. Employers are required to notify employees in advance if the employer will require a fitness-for-duty certification (FFD) to return to work.
 
Please contact me at 251.300.9690 or giawiggins@moraleresource.com if you have questions or need to discuss how COVID – 19 is impacting your workplace. 








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