COVID-19 Employer Rights Rundown and Updates

Main Overview

Families First Coronavirus Response Act (FFCRA)’s mandatory requirement to provide emergency paid sick leave expired on December 31, 2020. The FFCRA also expanded the Family Medical Leave Act (FMLA), which also ended in December 2020 to cover loss of income to care for COVID-19 reasons in the care of children. The FFCRA also included the Emergency Paid Sick Leave Act (EPSLA) to provide paid leave to employees for COVID-19 related reasons, whose benefits also ended in December 2020.

The FFCRA is now a voluntary decision by employers who will receive tax breaks if they continue to adhere to the policy. Types of leave under the FFCA has been expanded to include vaccination leave, leave for vaccination side effects, and awaiting test results for COVID-19.

If an employee has COVID-19 symptoms, an employer may force them to take leave, require a physician’s note before allowing them to return, and make them work remote. An employer cannot fire an employee for contracting COVID-19 or any disability resulting therefrom. Additionally, an employer can make an employee work remote with reasonable accommodations, take an employee’s temperature and ask if they have symptoms, and ask why they are absent from work.

ADA Concerns- Employee Questions and Medical Exams

The Americans with Disabilities Act (ADA) prohibits employers from making disability-related inquiries and requiring medical examinations of employees, except under limited circumstances. “Disability related” means it is likely to elicit information regarding a disability.[1] Therefore, asking an employee about symptoms of a seasonal cold is not likely to disclose information regarding a disability. Further, a medical examination is a test that divulges information about an individual’s physical or mental impairments.[2]

The ADA prohibits disability related inquiries and medical examinations unless they are related to the job or consistent with business necessity. This is based on a reasonable belief that an employee’s ability to perform will be impaired by a medical condition and an employee will pose a direct threat due to a medical condition.[3] Any permitted inquiry or assessment in compliance within these parameters is to remain strictly confidential.

A “direct threat” is a significant risk of harm to the health of the individual or others that cannot be reduced by reasonable accommodation.[4] Direct threats are not protected by the ADA. Based on the CDC and public health guidance, the COVID-19 pandemic meets the direct threat standard.

So, what can an employer ask to minimize the COVID-19 direct threat? An inquiry that requires an employee to disclose a compromised immune system or chronic illness is prohibited. An employer may make an inquiry that is not disability related, these inquiries must identify non-medical reasons for absence.

Specifically, during the COVID-19 pandemic, employers can ask employees who report feeling ill at work or who call in sick questions about symptoms to determine if they have COVID-19. Employers may also measure employees’ body temperature using non-invasive methods (e.g. forehead scan). If an employee is not having COVID-19 symptoms, an employer cannot ask. An employer may always ask an employee why they have been absent. If an employee has been away from the workplace during the pandemic, an employer may require employees to provide a doctor’s note certifying fitness to return to work.

Vaccines

Employers are permitted to require their employees to get vaccinated. Title I of the ADA applies to private employers with 15 or more employees. The EEO and AFA laws continue to apply during the pandemic, but do not interfere with employers following the guidelines made by the CDC or other public health authorities. CDC guidelines of late give that employees should continue to wear a mask as required by local ordinances, a mask should be worn indoors to maximize the protection against the Delta variant, and that all unvaccinated people should get vaccinated. An employer can require all employees to get the vaccine, unless the employee is entitled to a reasonable accommodation barring undue hardship under the ADA.

FMLA Updates

The FMLA, Family and Medical Leave Act, requires government and private employers who qualify to provide 12 weeks of unpaid, job-protected leave for family and medical reasons, including for COVID-19 reasons.[5] The expanded FMLA policy will expire September 30, 2021. For a COVID-19 related reason, an employee may request up to 10 days of paid sick leave, and up to 12 weeks of EFMLA leave.⁵ An eligible employee is one that has been employed at least 12 months and has been employed for at least 1,250 hours of service within that 12-month period.⁵ An employee can not stay home for fear of catching COVID-19 and be covered.

Covered employers must provide employees up to two weeks of emergency paid leave for COVID-19 reasons only. Employees may not carry over unused emergency paid sick leave hours granted between May 1, 2020 and March 31, 2021.⁵ As of April 1, 2021, employers may provide up to an additional 10 days of emergency paid sick leave.[6] The leave pay should not be less than two-thirds the regular rate of pay.

FFCRA Updates

Ultimately, whether to opt in to the FFCRA is the choice of the employer. While it does give tax breaks, it has been extended to increase the time off for employees. The FFCRA is no longer mandated, but an employer can still be sued for violating the provisions while the legislation was still in effect.

The FFCRA was expanded providing for paid family leave and sick leave for COVID-19 issues for employers with fewer than 500 employees. The FFCRA paid leave became optional starting in January 2021, but providing the paid leave gives the employers tax credits for payments made to employees on leave.

The American Rescue Act Plan of 2021 solidified the opt in for tax break for paid leave (extended to September 30, 2021) and extended the FFCRA expiration beyond March 31.[7] Employers with less than 500 employees, if opted in, will have to adhere to other rules starting April 1, 2021.[8]

Two new reasons were added to qualify an employee for FFCRA leave. The first is that leave is available for employees recovering from COVID-19 vaccinations and are experiencing side effects. The second is for employees who are unable to work while awaiting a COVID-19 test result or medical diagnosis.

The FFCRA was also extended to increase the number of weeks that an employee can request paid leave from 10 to 12 weeks. Also, the Act reset employee FFCRA sick leave rights to zero on April 1, and any leave taken before then does not count against future leave.

If opted in, the Paid Sick Leave Refundable Credit applies if an employee requests paid sick leave if they are unable to work (including remote work) for reasons such as government mandated quarantine, a physician tells the employee to self-quarantine, the employee is experiencing symptoms, or the employee is taking care of a child.

Conclusion

It can be extremely tricky navigating the employment space in general, much less during a pandemic. As long as decisions are made in the furtherance of the best interests of the business, while keeping in mind the needs of the employees, everyone wins. The above is not intended to be legal advice. If you have any specific questions regarding your employees, or your employment rights, feel free to contact Jamison Walters at Kearney, McWilliams & Davis (jwalters@kmd.law).

Authorities and Further Resources

• https://www.jdsupra.com/legalnews/the-emergency-paid-sick-leave-act-a-43181/
• https://www.dol.gov/agencies/whd/ffcra
• https://www.tasb.org/services/hr-services/hrx/hr-laws/emergency-fmla-and-paid-leave-effective-april-1,-2020.aspx
• https://www.congress.gov/bill/117th-congress/house-bill/1319/text
• https://www.dol.gov/agencies/whd/pandemic/ffcra-questions#58
• https://www.eeoc.gov/
• https://www.irs.gov/coronavirus/employer-tax-credits