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COVID-19 and employment issues

By Camille Neemann, AAC RMS Counsel

As you are all aware, Gov. Asa Hutchinson declared a public-health emergency on Wednesday, March 11, 2020, due to the first presumptive case of COVID-19 or “coronavirus” appearing in Arkansas. Since that time there have been more confirmed reports of the virus in Arkansas, schools have shut down across the state, and talk of preventing further community spread has already begun. This has created the need to develop action plans quickly on how to handle possible exposure and infection in the workplace.

The below information should not be used in place of individualized legal advice regarding specific employee issues but should be used to make you aware of different questions that may arise. Because we are in uncharted territory due to the scope of COVID-19, this information should only be considered a guideline and we recommend you continue to call for individual advice as needed.

The public health emergency caused by COVID-19 is a rapidly changing situation. New information becomes available, sometimes on a daily, or even hourly basis. Be sure that you are regularly checking the Arkansas Department of Health website, the Centers for Disease Control website, and watching the Governor’s COVID-19 updates as well.

One of the most frequently asked questions is what questions you can ask your employees regarding their health related to COVID-19 and when can you send them home. This is addressed by the Americans with Disabilities Act (ADA).

The ADA typically prohibits an employer from making medical inquires, or requiring medical examinations, unless they are job-related and consistent with business necessity. The exception to this is when the employee poses a direct threat to themselves, or others. The Equal Employment Opportunity Commission (EEOC), is a U.S. agency that enforces workplace anti-discrimination laws, including the ADA. The EEOC has issued guidance that the COVID-19 pandemic meets the direct threat standard, finding there exists a significant risk of substantial harm when someone with COVID-19, or symptoms of it, is present in the workplace at this time.

This means that an employer can send home employees exhibiting COVID-19 related symptoms such as fever, chills, cough, shortness of breath, or sore throat. There is no legal requirement to pay employees when you send them home sick. Each county will need to consider your leave policies in place, including whether you did or did not pass an emergency ordinance related to paid COVID-19 leave. You will also need to follow the requirements under the new federal sick leave provisions which began on April 1, 2020.

If an employee calls in sick you may ask them what their symptoms are to determine if they pose a direct threat as defined by the ADA. You may also take an employee’s temperature when they arrive at work, or during the day. If they have a fever you should send them home until they are at least 24 hours fever free. If an employee receives a diagnosis of COVID-19 or is directed to quarantine by a public health authority or medical provider, you may require a medical release permitting the employee to return to work. As a practical concern, health care professionals are busier than ever with the rapid spread of COVID-19 and may not be able to timely provide such documentation. Employers should consider other forms of certification that an individual does not have the virus, such as forms, fax, or e-mail. Information related to an employee’s fever or other symptoms are subject to the confidentiality requirements under the ADA. This information must be maintained and treated as a confidential medical record.

Family Medical Leave Act (FMLA) obligations and the Families First Coronavirus Response Act

On March 18, 2020, Families First Coronavirus Response Act was passed with an effective date of April 1, 2020. The Act addresses several issues, but this article only highlights a few of the requirements of the provisions under the Emergency Paid Sick Leave Act and impact to current employer obligations of the Family Medical Leave Act with the passage of the Emergency Family Medical Leave Expansion Act.

The Emergency Paid Sick Leave Act provides that covered employers must provide to all employees, regardless of length of employment, paid sick time to the extent that the employee is unable to work (or telework) due to a need for leave because: (1) the employee is subject to a federal, state, or local quarantine or isolation order related to COVID–19; (2) the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID–19; (3) the employee is experiencing symptoms of COVID–19 and seeking a medical diagnosis; (4) the employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2); (5) the employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID–19 precautions; and (6) the employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor. If an employee has a beforementioned qualifying reason, a full-time employee is entitled to 80 hours of leave time and a part-time employee, with a set schedule, is entitled to the number of hours equal to the number of hours that such an employee works, on average, over a two-week period. Employers are required to post notice of this information to be placed where notices to employees are customarily kept. The Department of Labor will provide a sample poster within seven days of the enactment of this law. Further, exclusions promulgated by the Secretary of the Department of Labor regarding the ability to exclude certain health care providers and emergency responders from the definition of eligible employee.

The Emergency Family Medical Leave Expansion Act applies to government employers and their employees who have been employed (on payroll) for at least 30 days prior to their request to take leave. The new leave category under FMLA is limited to when the employee is unable to work or telework due to the need to care for a son or daughter under 18 years old, if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency. This does not include regularly scheduled closings or breaks unrelated to COVID-19. The law provides up to 12 weeks of leave for all FMLA qualifying reasons, including the expanded provisions. This means if an employee has already used some FMLA leave in the relevant 12-month period, they are only entitled to the remainder of the 12-week period, even under the expanded provision. For example, where an employee has already used two weeks of FMLA this year, they are only eligible for 10 more weeks, including due to a school closing. This is not an additional 12-week period.

The first 10 days of leave under the expanded FMLA are not required to be paid by the employer. The employee may choose to have the first 10 days be unpaid. They may choose to use their regular PTO bank to cover the first 10 days, or the employee may choose to use their new COVID-19 paid leave as provided by federal law. If the employee uses their 80 hours under federal law, it is to be paid at two-thirds of the employee’s regular rate of pay. The employee would be able to use their other leave banks to cover the remaining one-third. County employers may elect to exclude emergency responders from the benefits of the Emergency Family Medical Leave Expansion provision of the Act. The Department of Labor is expected to issue additional guidance regarding this exclusion.

Employers should continue to monitor the COVID-19 situation for the state and county for safety and employment issues. Keep in mind, that the boundaries of what you can do legally may not necessarily be what you want to do from a practical standpoint. This article serves as guidance on what you can do but should not be construed as advice on what you should do. We recommend you continue to seek individualized legal advice as specific employment issues arise. If you have a question that was not addressed herein, please feel free to reach out to discuss.

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