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US COVID-19: Risky Business – Navigating Workplace Issues Involving High Risk Employees

As states across the country see spikes in COVID-19 cases, employers continue to wrestle with how to handle “high risk” employees, i.e., employees who are at an increased risk for severe illness from COVID-19.  Guidance from a variety of agencies on the topic, including the Equal Employment Opportunity Commission (“EEOC”), the Centers for Disease Control and Prevention (“CDC”), and the Occupational Safety and Health Administration (“OSHA”), has been published in waves, leaving many to wonder how this guidance may or may not continue to be relevant.

Below are six important areas of the law to consider when navigating this evolving landscape.  As a reminder, each individual employee’s circumstances are unique, so while employers should have a consistent procedure in place for triaging high risk employees’ presence in the workplace, employers should also be prepared to develop individualized solutions based on an employee’s specific needs.

  • The Americans with Disabilities Act (“ADA”): Employees with certain underlying health conditions may qualify as “high risk” and thus be entitled to a reasonable accommodation under the ADA.  While accommodations may include a leave of absence or telework arrangement, other possible accommodations include permitting the employee more frequent hygiene breaks, excusing the employee from attending group meetings/gatherings, and reconfiguring the employee’s workspace.  It is important that employers not act unilaterally with respect to implementing accommodations.  Instead, the interactive dialogue process should be used early on to identify what, if any, accommodations an employee may need and/or receive.  As a reminder, employers’
  • US COVID-19: Remember the FMLA: DOL Issues New Q&A on COVID-related FMLA Issues

    With all of the attention being given to COVID-19-related leave under the Families First Coronavirus Response Act (“FFCRA”), we mustn’t forget the (traditional) Family and Medical Leave Act (“FMLA”).  To remind us, the federal Department of Labor (“DOL”) recently issued new FMLA Q&A on COVID-19-related subjects.

    COVID-19 Testing:  The DOL clarified that the FMLA’s “reinstatement” requirement does not interfere with an employer’s ability to require all employees to take a COVID-19 test before coming to the office.  (See Q&A #13.)  This is because employees who have taken FMLA leave are still subject to the same actions that would have applied to the employee had the employee not taken FMLA leave.

    For BCLP discussions about what the federal Equal Employment Opportunity Commission (“EEOC”) has said about COVID-19 related testing, see this blog post on 4 Takeaways from the EEOC’s New Guidance on Antibody Testing, Older Workers, and Accommodations and this one on EEOC Updates COVID-19 Guidance, Permitting Employers To Administer COVID-19 Tests and Clarifying Accommodation Obligations.

    Telemedicine:  The DOL clarified that, until December 31, 2020, and in light of the current pandemic-related demands on health care providers and PPE/supplies, “telemedicine” visits will count as “in-person visits” for FMLA purposes.  (See Q&A #12.)  This decision is significant because one of the common categories of serious health condition under the FMLA – “incapacity plus treatment” – requires certain “in-person” visits to a health care provider.  According to the DOL, a telemedicine visit will constitute an in-person visit as long as

    US COVID-19: New FFCRA Q&A – Return to Work Issues

    July 21, 2020

    Categories

    On July 20, as part of a barrage of new guidance relating to the Families First Coronavirus Response Act (“FFCRA”), Family and Medical Leave Act (“FMLA”), and Fair Labor Standards Act (“FLSA”), the federal Department of Labor (“DOL”) issued four new FFCRA Q&As relating to “return to work” issues.

    Three of the new Q&As (95-97) explain the interconnection between FFCRA leave and furlough:

    • Hours of FFCRA leave taken prior to furlough count against an employee’s total FFCRA leave entitlement (i.e., the fact that an employee took FFCRA leave and subsequently was furloughed does not mean that the employee’s FFCRA entitlement starts over upon return to work);
    • Hours/weeks on furlough do not count against an employee’s FFCRA entitlement;
    • Post-furlough requests for FFCRA leave should be treated as “new” requests for FFCRA leave (i.e., employees should be required to provide appropriate documentation in support of post-furlough leave requests); and
    • Employers may not make furlough decisions (such as which employees to recall from furlough) based on a desire to avoid providing FFCRA leave.

    The remaining new Q&A (94) relates to the “reinstatement” obligation under the FFCRA.  While recognizing that employees who take protected FFCRA leave are, generally, entitled to be restored to their same or equivalent position when returning from leave, the DOL clarifies that employers may take certain steps to reduce potential exposure of employees in the workplace.

    Specifically, in regards to an employee who took Paid Sick Leave under the FFCRA to care for a family member who

    New FMLA Forms Available From DOL

    First, the bad news:  As if HR personnel who are responsible for managing leave requests aren’t already stretched thin due to COVID-19 issues, they now have another item for their to do list:  Become familiar with, and begin using, new Family and Medical Leave Act (“FMLA”) forms issued late last week by the federal Department of Labor (“DOL”).

    Now, the good news:  Overall, despite being longer and wordier, the new FMLA forms appear likely to be embraced by employers, employees, and medical providers alike for being more clear, helpful, and user-friendly than prior versions.

    The new FMLA forms are available on the DOL’s website.  They include revised versions of the following forms:

    • Combined Eligibility Notice / Notice of Rights and Responsibilities (WH-381);
    • Designation Notice (WH-382);
    • Certification of Health Care Provider (one for employee’s own serious health condition; one for leave relating to care of a covered family member; WH-380 E and WH-380 F);
    • Certification of Military Family Leave (including forms relating to Qualifying Exigency leave and leave relating to a Current Servicemember or Veteran; WH-384 and WH-385/WH-385-V).

    One overarching revision is that each form now includes more “explanatory” language relating to FMLA rights and obligations.  For example, the Eligibility Notice includes a description of the eligibility rules and definitions of such key terms as “spouse,” “child” and “parent.”  The Rights and Responsibilities Notice (which, as before, is combined with the Eligibility Notice) includes expanded explanations regarding the substitution of paid

    US COVID-19: FFCRA Implications of School Reopening Plans

    With school reopening plans currently a hot topic across the country, a natural corollary is:  What do those plans mean for employee requests for leave to care for a child under the Families First Coronavirus Response Act (“FFCRA”)?  Under the FFCRA regulations and previous guidance issued by the Department of Labor (“DOL”), the answer appears to be that if a child’s school is physically open and the child is permitted by the school to attend in person, then any personal choice by the child’s parents to instead have the child participate in remote schooling will not provide a qualifying reason for FFCRA leave.

    The FFCRA entitles eligible employees of covered employers to take up to two weeks of Paid Sick Leave, and up to ten additional weeks of Expanded FMLA leave, when the employee is unable to work (including telework) due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19 (“Child Care Leave”).  See https://www.dol.gov/agencies/whd/pandemic/ffcra-employee-paid-leave; 29 CFR §§ 826.20(a)(v), (b).

    Early on during the pandemic, the DOL made clear through its Q&A guidance that Child Care Leave is available when instruction has moved entirely online, due to the physical location of a school being closed:

  • My child’s school or place of care has moved to online instruction or to another model in which children are expected or required to complete assignments at home. Is it “closed”?
  •  

    Yes. If

    US COVID-19: Managing FFCRA “Child Care” Leave During The Summer

    The advent of summer has brought the reality of “child care” leave under the Families First Coronavirus Response Act (FFCRA) to the forefront of employers’ minds:  Are employees really entitled to up to 12 weeks of leave to care for their children during “summer vacation” from school?  And, if yes, how do we manage this leave?

    The answer to the first question is, “possibly.”  Eligible employees of employers covered by the FFCRA are entitled to up to 12 weeks of leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19: (a) two weeks of Paid Sick Leave; and (b) up to ten additional weeks of Emergency FMLA Leave.

    While this entitlement creates the potential for employees to be on leave all summer (and mostly paid leave, at that:  employers must play employees 2/3rds pay at employee’s normal rate, subject to caps) there are a number of steps employers can take to effectively manage this leave.

    Step 1:  Ensure the Employee has a Qualifying Reason for Leave, and Document the Reason

    The Department of Labor has made it clear that “summer vacation” does not, in itself, create a qualifying reason for FFCRA leave, because school being closed for the summer is not a “reason related to COVID-19.”  See DOL FFCRA Q&A #93.  It is only when the employee’s plans for summer care for the child have fallen through because of a COVID-19 related reason that FFCRA leave could be

    US COVID-19: EEO Reminders to Include in Return to Work Communications

    As employers prepare their “Return To Work” plans, clear communications to employees about protocols and expectations will be critically important.  Recent updates to the federal Equal Employment Opportunity Commission (EEOC) COVID-19 publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and other EEOC Laws,” discuss “reminders” that employers should consider providing to employees on various EEO-related “Return To Work” topics.

    Anti-Harassment Reminders

    Near the beginning of the COVID-19 outbreak in the U.S., as reports of harassing conduct towards Asian individuals increased, the EEOC was quick to remind employers that they could reduce the chance of harassment by explicitly communicating to the workforce that fear of the pandemic “should not be misdirected against individuals because of a protected characteristic, including their national origin, race, or other prohibited bases.”  (E.1.)

    The EEOC reiterated that guidance in its recent updates, noting that workforce reminders should:

    • Note Title VII’s prohibitions on harassment;
    • Remind employees that harassment will not be tolerated;
    • Encourage anyone who experiences or witnesses workplace harassment to report it to management; and
    • Remind employee that harassment can result in disciplinary action up to and including termination.

     

    (E.3.)  The EEOC further emphasized that managers in particular should be reminded of their roles in watching for, stopping, and reporting any harassment or other discrimination, and that managers should specifically “be alert to demeaning, derogatory, or hostile remarks directed to employees who are or are perceived to be of Chinese or other Asian national origin, including about

    U.S. COVID-19: Chicago Ordinance Bars Retaliation For Taking COVID-19 Related Leave

    As the result of an Ordinance that was passed and became effective on May 20, 2020, Chicago employers are prohibited from taking adverse action against employees who take leave for certain COVID-19 related reasons.

    Covered Employers

    The Ordinance applies to all employers who are covered by the Chicago Minimum Wage and Paid Sick Leave Ordinance (“PSL Ordinance”), which went into effect in July 2017.  This includes any employer (any individual, partnership, association, corporation, limited liability company, business trust, or person/group of persons) that: (a) employs at least one Covered Employee, and (b) maintains a business facility within the geographic boundaries of Chicago and/or is subject to certain Chicago licensing requirements.

    Covered Employees

    Most employees are covered, so long as they work at least two hours during any two-week time period in the City of Chicago (including time travelling for deliveries or sales calls but not including uncompensated commuting time).

    Prohibited Retaliation

    As part of a “[d]uty to allow Covered Employees to obey public health orders,” employers are prohibited from taking adverse action against an employee “for obeying an order issued by the Mayor, the Governor of Illinois, the Chicago Department of Public Health, … or a treating healthcare provider [in the case of 2-4 below],” requiring an employee to:

  • Stay at home to minimize the transmission of COVID-19;
  • Remain at home while experiencing COVID-19 symptoms or sick with COVID-19;
  • Obey a quarantine order issued to the Covered Employee;
  • Obey an isolation order issued to the Covered Employee;
  • U.S. COVID-19: New FFCRA Q&A – Key Takeaways Regarding the “Need” for Leave, Joint Employers and Domestic Workers

    The federal Department of Labor (“DOL”) is closing in on 100 informal “questions and answers” (the “Q&A”) relating to the Families First Coronavirus Response Act (“FFCRA”), having issued Q&A #s 89-93.  The new Q&A address steps employers may take when determining whether employees truly “need” FFCRA leave; issues relating to domestic workers; and a reminder for joint employers that prohibitions on adverse action, interference and retaliation may apply even to employers who are not covered by the FFCRA.

    Determining Whether Employees Have A Qualifying Reason For Leave

    Three of the five new Q&A provide critical guidance for employers on permissible questions and documentation requirements to ensure that leave is being taken in appropriate circumstances.

    In the first Q&A (# 91), the DOL posits a factual scenario in which an employee with children has been teleworking productively for several weeks despite school closings, but then requests FFCRA leave.  The hypothetical employer wonders:  Can I ask my employees why they are now unable to work or if they have pursued alternative child care arrangements?”  The DOL responds affirmatively, indicating that an employee may be asked “to note any changed circumstances in his or her statement as part of explaining why the employee is unable to work.”

    Employers should “exercise caution” in this area, however, because, according to the DOL, the more questions asked, the greater “the likelihood that any decision denying leave based on that information is a prohibited act.”  There are many reasons why an employee may not have initially

    U.S. COVID-19: Illinois Employers Take Note: Key Employment Provisions of the Illinois COVID-19 Executive Order Effective May 1, 2020

    On April 30, 2020, Governor Pritzker issued Executive Order 2020-32, effective May 1, extending social distancing requirements and, among other things, issuing new guidelines for Illinois employers.

    The key employment-related aspects of the Executive Order are as follows:

    • All employers are required to evaluate which employees are able to work from home, and are encouraged to facilitate remote working when possible.
    • All employers that have employees who are physically reporting to a work site must post this guidance from the Illinois Department of Public Health and the Office of the Illinois Attorney General regarding workplace safety during the pandemic.
    • When working, all individuals who are able to medically tolerate a face covering (which includes “a mask or cloth face-covering”) are required to cover their nose and mouth with a face covering when in a public place and unable to maintain a six-foot social distance. This includes public indoor spaces such as stores.
    • All employers operating Essential Businesses and Operations and engaged in Minimum Basic Operations must take proactive measures to ensure compliance with “Social Distancing Requirements.”
      • Social Distancing Requirements include: “maintaining at least six-foot social distancing from other individuals, washing hands with soap and water for at least 20 seconds as frequently as possible or using hand sanitizer, covering coughs or sneezes (into the sleeve or elbow, not hands), regularly cleaning high-touch surfaces, and not shaking hands.”
      • In addition, employers should, where possible:
        • Provide employees with “appropriate face coverings” and require that employees wear face coverings
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