As the coronavirus pandemic drags on, many businesses continue to deal with employees who are scared of going back to work for fear of exposure to the virus.
There are many possible reasons for these concerns. Some individuals may be at high risk of complications from COVID-19. Others may be afraid of contracting the virus at work and then exposing high-risk family members at home. Employees may be unsure of whether their employer is doing enough to reduce the risk of exposure on the job.
A proactive approach is key for addressing employee fears. Managers must stay abreast of which employees may qualify for emergency leave or for disability accommodations. It is also imperative to promote a safe work environment for everyone while maintaining open channels of communication.
Which Employees Are Eligible for FFCRA Leave?
A good starting point is to determine whether an employee qualifies for leave under the Families First Coronavirus Response Act (FFCRA).
The law requires some employers to provide emergency paid sick leave or extended family and medical leave related to COVID-19. Employers covered by the law include private companies with fewer than 500 employees and some public entities. Small businesses with fewer than 50 employees may qualify for an exemption.
Under the FFCRA, employees may take up to 80 hours of paid sick leave at their regular rate of pay if they are quarantined due to a federal, state, or local quarantine or isolation order. They may also qualify if they have been advised to self-quarantine by a health professional, or if they are experiencing COVID-19 symptoms and are seeking a medical diagnosis.
Employees may qualify for up to 80 hours of sick leave at ⅔ of their regular pay if they are caring for another individual who is under quarantine, or if they must care for a child whose school or child care provider is closed due to COVID-19.
The FFCRA also allows up to 10 weeks of paid family and medical leave for employees at ⅔ of their regular pay if their child’s school or care provider is closed due to COVID-19.
Employees must provide documentation to support all requests for paid sick leave or expanded family and medical leave. Documentation must be provided as soon as is practicable and must include the following information:
- Employee’s name
- The date(s) for which leave is requested
- The reason for the leave request
- A statement of the reason the employee is unable to work
If the requested leave is due to a government-ordered quarantine, the employee must provide the name of the government entity that issued the order. For a self-quarantine on the advice of a health provider, the employee must provide the name of the health provider. An employee requesting leave because their child’s school is closed must provide the name of the child, the name of the school, and a statement that no other suitable person is available to care for the child.
The FFCRA currently is set to expire December 31, 2020.
Which Employees Are Entitled to ADA Accommodations?
The Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodations for employees with disabilities, absent an undue hardship to the business.
Some employees may qualify for accommodations if they have a medical condition that puts them at high risk for complications from COVID-19. Either the employee or a qualified third party, such as a doctor, must notify the employer of the need for an accommodation. The employer may ask questions and seek appropriate documentation.
High-risk individuals include those who are immunocompromised, people with some heart conditions, and pregnant women. The Centers for Disease Control and Prevention lists a number of other conditions which may put an employee at high risk from COVID-19:
Chronic kidney disease
|Diabetes (Type 1 or 2)
High blood pressure
Sickle cell disease
Reasonable accommodations often involve increasing the physical distance between high-risk employees and co-workers or customers. Examples may include one or more of the following:
- One-way aisles
- Barriers such as plexiglass or tables
- Temporary restructuring of marginal job duties
- Modified work schedules or shifts
- Moving the employee to a different physical location
- Providing protective gear such as PPE
The CDC also notes that people age 65 or older are at higher risk of coronavirus complications. However, neither the ADA nor the Age Discrimination in Employment Act requires accommodations based on age alone. Employers may consider voluntary measures to reduce the risk of virus transmission to older employees. As always, engaging in an interactive dialogue with the employee is critical to meeting an employer’s obligations under the ADA.
Implement & Communicate OSHA Guidelines
All employers, regardless of company size or industry, are advised to develop and implement an infectious disease preparedness and response plan. The plan must be consistent with all current federal, state, and local regulations.
It also is critical to keep employees informed about company health and safety practices and to address any concerns that arise. Such efforts may include training and materials pertaining to workplace hygiene and cleanliness, use of protective gear such as PPE, and social distancing policies.
If an individual employee expresses fears related to COVID-19, managers should offer to meet with that person, answer all questions accurately, and listen to any ideas they have about improving safety.
Basic infection prevention measures may include one or more of the following:
- Frequent and thorough handwashing with soap and water
- Providing hand sanitizer, tissues, and no-touch trash cans
- Discouraging employees from sharing desks, phones, equipment, and supplies
- Routine cleaning and disinfecting
- Prompt identification and isolation of sick people
- Encouraging sick employees to stay home
- Covering coughs and sneezes
- Flexible worksites and work hours to facilitate social distancing
OSHA also advises employers to consider the risk of infection associated with specific worksites and job tasks. Job-related risks can be categorized as follows:
- Very high risk includes healthcare workers and morgue employees.
- High risk includes healthcare delivery or support staff, medical transport workers, and mortuary employees.
- Medium risk includes employees with frequent close contact with individuals who may be infected with COVID-19. Examples include jobs requiring close contact with the general public, such as schools or high-volume retail establishments.
- Low risk refers to jobs involving minimal contact with known, suspected, or possible COVID-19 cases. This category includes jobs with little or no contact with the general public.
Keeping employees informed and listening to their concerns helps to build a sense of trust that can improve performance and morale.
In some instances, an ongoing refusal to work may qualify as job abandonment. Employers should establish and implement policies to address this issue, including termination procedures when appropriate. A qualified employment attorney can assist with the development of a job abandonment policy.
Employers are also encouraged to seek legal counsel when developing policies pertaining to workplace health and safety, leaves of absence, and disability accommodations. For assistance with these and other employment law matters, contact McMahon Berger to schedule a consultation.
The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.