Webinar Recap: Reopening Your Business During COVID-19

‍

If an employee is diagnosed with COVID-19, should they inform their employer?

Yes. Not only will this allow an employer to determine whether to provide the employee with leave under the FFCRA, or other accommodations under state or federal law, it will also allow an employer to determine whether the employee may have potentially exposed others in the workplace. If so, an employer can begin cleaning/disinfecting and tracing the employee’s contacts. ‍

How long do we allow employees who are eligible for FFCRA to provide us documentation?

The FFCRA provides that employers may “require notice as soon as practicable under the facts and circumstances of the particular case.” If an employee fails to provide notice, an employer should provide an employee with a notice of their failure and provide them an opportunity to correct their failure with proper documentation. In addition, the content of the notice may be oral or written with enough information for the employer to determine whether the requested leave is covered the FFCRA.‍

Is taking an employee’s temperature legal? If not, how do I take my employees’ temperatures? Should I document/store this information?

Yes, taking an employee’s temperature is currently legal and permissible under the Americans with Disabilities Act (“ADA”). Generally, such medical examinations are prohibited; however, since an employee with COVID-19 presents significant safety issues, it is classified as a “direct threat” by the Equal Employment Opportunity Commission (“EEOC”), allowing employers to conduct health assessments, temperature checks, and require COVID-19 tests.

Remember, any confidential medical information you receive from an employee must kept and stored separately from an employee’s personnel file in a secure location.‍

Can I require my employees to get a COVID-19 test before returning to work?

Yes. As explained above, since COVID-19 is a “direct threat,” employers have wide discretion to require employees to submit to medical examinations or inquiries under the ADA. The reasoning behind this is that an employee entering the workforce with COVID-19 would pose a “direct threat” to the health and safety of other employees.

‍Should we do antibody/serology tests?‍

This depends. Such tests appear to be lawful since an employee with COVID-19 is a “direct threat” under the ADA, thereby allowing employers the freedom to perform medical examinations and inquiries (for more information regarding “direct threats” please see our post here). However, the EEOC said the tests must be “accurate and reliable” in recent guidance.

Since serology/antibody tests still vary in accuracy, reliability, and with some even giving false positives, it is unlikely that these tests meet this standard right now. However, as with all things COVID-19-related, this may change rapidly in the days and coming weeks.‍

Should employees wear masks? Is an employer required to supply the masks?‍

This is a business decision. While there is nothing that currently requires employees to wear facemasks, Governor Walz’s recent Executive Order 20-48 “strong encourages” individuals to wear facemasks while outside their home. In addition, we recommend having employees wear facemasks any time they may come, or work, within 6 feet of someone else.

In addition, if an employee requests any personal protective equipment (“PPE”) as a reasonable accommodation under the ADA, the employer would have to supply it. ‍

For employees who are on FFCRA leave: do we have to maintain their health insurance or can we offer them COBRA?‍

Yes. Employers are required to maintain health coverage for employees on EPSL and EFMLA. For example, pursuant to the FFCRA, when an employee is on EPSL or EFMLA, “an employer must maintain the Employee’s coverage under any group health plan . . . on the same conditions as coverage would have been provided if the Employee had been continuously employed during the entire leave period.” However, an employee is responsible for paying his or her portion of the group health plan premiums, which had been paid by the employee prior to taking EPSL or EFMLA. If the leave is unpaid, or the payment is insufficient to cover the employee’s share of the premiums, the employer may obtain payment for the premiums from the employee. Lastly, an employee may choose not to retain group health plan coverage while on EPSL or EFMLA, however, when they return from leave, the employee is entitled to be reinstated on the same terms as before.‍

How are workers’ compensation claims being dealt with if it is difficult to determine if an employee was infected at work?

To determine whether a given injury (in this case COVID-19) is occupational and compensable under the Minnesota workers’ compensation laws, you must examine a two-part test. First, the illness or disease must be occupational—meaning that it arose out of and was in the course and scope of employment. Second, the illness or disease must arise out of or be caused by conditions peculiar to the work.

With respect to the first part, the question in most states depends on the employee’s activities—i.e., was the employee benefitting the employer when exposed to the illness or disease? With the current community spread of COVID-19, it may prove difficult to show that there was an actual nexus between the disease and the work activities, but it can nevertheless happen.

The second part is even more difficult—an employee must show that the illness or disease is peculiar to the work when such a disease is found almost exclusively to workers in a certain field or there is an increased exposure to the illness or disease because of the employee’s working conditions. A common example is black lung disease and coal miners, or asbestosis with those with a history of asbestos exposure.

Therefore, it is unlikely (but still possible) that COVID-19 would be considered an occupational disease. However, as mentioned above, there may be circumstances where the illness could be compensable under workers’ compensation, especially if employment peculiarly exposes the employee to an increased risk or special hazard of developing the disease. A recent example may include the COVID-19 outbreaks in some of the meat packing plants.

In addition, Minnesota recently passed a new law providing for a rebuttable presumption of workers’ compensation coverage for health care workers and first responders who are infected with COVID-19 while working on the frontline. For all other workers, they will have to file for workers’ compensation benefits by proving the above.‍

If an employee was exposed and needs to self-quarantine for 14 days, can we ask them to continue to work until sick or finished with their self-quarantine?

Yes. If an employee is able to work or telework, they are not eligible for leave under the FFCRA.‍

How long should an employee self-quarantine if a family member was exhibiting symptoms but was not confirmed COVID-19 positive?

If an employee was exposed to a family member who was/is exhibiting symptoms of COVID-19, CDC guidance recommends that the employee self-quarantine for 14 days, social distance, and self-monitor for symptoms.

With respect to Governor Walz’s Executive Orders, are Critical Sector (essential) employers required to implement a Preparedness Plan?

No. Governor Walz’s Executive Orders (20-20, 20-33, 20-40, and 20-48) do not currently require that Critical Sector employers to implement a Preparedness Plan. Nevertheless, we recommend that all employers – Critical Sector or non-Critical Sector – implement a Preparedness Plan in order to ensure they remain operational during the COVID-19 pandemic, maintain productivity, and ensure employee safety.

‍What should we do about employees who receive a doctor’s note that claims they are immunocompromised?

If an eligible employee is unable to work or telework because they are “particularly vulnerable to COVID-19,” they may be entitled to EPSL. The FFCRA provides that an employee may be eligible for EPSL if the employee’s health care provider recommends that the employee self-quarantine due to concerns related to COVID-19 (not simply to avoid work) and the employee is unable to work or telework. An employee who is self-quarantining is able to telework, and therefore may not take paid sick leave if: (a) his or her employer has work for the employee to perform, (b) the employer permits the employee to perform that work from the location where the employee is self-quarantining, and (c) there are no extenuating circumstances, such as COVID-19 symptoms that prevent the employee from performing work.

Even if the employee is not eligible for EPSL, they may nevertheless be entitled to regular FMLA or other accommodations under state or federal disability laws. For reference, in order to be eligible for FMLA leave, the employee must have a “serious health condition,” have been employed for at least one year, and worked for at least 1,250 hours in the past year at a jobsite with at least 50 employees in a 75-mile radius. It is possible that a severe case of COVID-19, or complications arising therefrom (such as pneumonia), may qualify for FMLA leave.

While avoiding an infection does not usually qualify as a “serious health condition,” the severity of the conditions caused by COVID-19, as well as recent guidance, suggests that – in some cases – an employee may be able to receive FMLA due to a condition that predisposes them to COVID-19 complications. Previous DOL regulations appear to recognize such “prophylactic” FMLA leave if it is advised by a health care provider to avoid exacerbating an otherwise dormant serious health condition as described above. That said, you should still apply your normal FMLA process, including requiring the employee’s health care provider to complete the FMLA certification.

Lastly, if the employee is not eligible for leave under the FFCRA or the FMLA, you should also analyze whether the employee is a “qualified individual” under the ADA or other applicable state law. An underlying medical condition (e.g., cancer, heart disease, asthma etc.) may constitute a disability, so the question would be whether the individual can perform his or her job with a reasonable accommodation. If so, you may be obligated to accommodate an employee’s need for leave (or an alternative accommodation), unless doing so would be an undue hardship.

Do we need to keep an employee’s job open, or can we hire someone for an employee who is on leave under the FFCRA?

In most cases, an employee who took leave under the FFCRA has a right to be restored to the same or an equivalent position upon their return from leave. However, an employer may refuse to return an employee to work in the same position if they are a highly compensated “key” employee as defined under the FMLA. There are further restrictions outside the scope of this answer provided here.

Thus, while nothing prevents an employer from hiring someone to fill in for an employee on leave temporarily, the employer must nevertheless reinstate the employee who took leave under the FFCRA after they are ready to return.

‍Can we have a supervisor perform health assessments/temperature screens?

Yes. Employers can designate an individual to perform all health assessments as long as they comply with all ADA obligations regarding keeping and storing medical information.

‍Individuals who are older seem to be more likely to experience issues with COVID-19, are employers required to accommodate them?

This depends. Under the Age Discrimination in Employment Act (“ADEA”), employers are prohibited from discriminating against employees over the age of 40. This prohibition includes, among other things, blanket policies involuntarily forcing workers over the age of 40 to comply with different terms and conditions of employment than employees under the age of 40. Yet, it is understandable to want to provide increased protections given how COVID-19 increasingly harms older individuals more than younger ones. To that end, an employer may be allowed to implement policies that allow susceptible populations to voluntarily telework or provide for other similar accommodations.

‍If a business is essential, but some positions are non-essential, how do we handle the Stay at Home Order?

This depends on the employer and the type of business. If the business is one of the Critical-Sector businesses listed in Governor Walz’s Executive Orders, any employee who is supporting a Critical Sector employer are likely included within the category and are able to work. If so, then the worker is able to travel from home to work, and vice versa. However, you should review the language in Governor Walz’s Executive Orders (which are found here) and check with your attorney.

‍What if an employee refuses to have their temperature taken?

An employer may refuse to permit any employee to enter the workplace if they refuse to answer a health assessment or refuse to submit to a temperature check. Before doing so, however, you may want to reassure the employee on the reasoning why you are conducting such health medical examinations/inquiries (i.e., to ensure workplace safety) and the procedures in place to keep that information confidential as required by the ADA. If the employee still refuses, you may deny them entry to your facility and send them home. It is then up to each employer to decide whether the employee’s conduct subjects them to any disciplinary action in accordance with the employer’s policies. Lastly, you should also clean and disinfect any areas the individual visited and anything they touched.

‍Are there any posting obligations with respect to the FFCRA?

Yes. Employers covered by the FFCRA must post and keep posted on their premises, in a conspicuous place, a notice explaining the FFCRA’s paid leave provisions and providing information concerning the procedures for filing complaints of violations of the FFCRA with the Wage and Hour Division. You can find the DOL’s example here.

‍What happens if we send an employee home? Do we have to give them leave?

This depends on whether the employee is able to work or telework from home, and the reason the employee was sent home. If the employee is able to telework, they are ineligible for benefits under the FFCRA. If, however, the employee is unable to telework or work from home, they may qualify for EPSL under the FFCRA depending on the reason they were sent home.

‍If an employee is on a temporary layoff and they qualify for leave under the FFCRA, do we have to offer it?

No. If an employer furloughs an employee, the employee is not entitled to take EPSL or EFMLA. The employee may, however, be eligible for unemployment insurance benefits.