As there are ongoing issues with COVID-19, essential employees and employers are facing continual risks of exposure by going into the office each day. Employers must evaluate if they should mandate whether healthy employees should be required to go to work and if so, what levels of accommodation they are required to provide. Furthermore, does accommodating one person create an obligation to accommodate others with the same concerns? Employees want to know if they can be terminated if they refuse to report for work, and if they have a potential claim in the future if their requests to work from home due to fear of COVID-19 are denied.
Each situation must be addressed on a case-by-case basis. Employers need to ask pertinent questions in order to determine if a fearful employee has a valid basis for paid or unpaid leave, or some other accommodation.
These issues are complicated by the array of overlapping laws which entitle employees to leave and accommodations, such as the Families First Coronavirus Response Act, or FFCRA, or other new state and local COVID-19-related leave laws; the Americans with Disabilities Act; and the Family and Medical Leave Act. Employers do not want to prompt a lawsuit, and thus need to be cautious when navigating the various laws.
As a general matter, fear of contracting or being exposed to COVID-19 is not a qualifying reason for leave under the FFCRA or other federal and state laws. Businesses that employ less than 500 employees should review the FFCRA to determine whether or not their employees are entitled to leave due to the fear of COVID-19. Employees can determine if they are eligible for excused leave if they fall under one of the defined exceptions:
- Is the employee subject to a federal, state or local quarantine or isolation order related to COVID-19?
- Is the employee under advice from a health care provider to self-quarantine due to concerns related to COVID-19?
- Is the employee experiencing COVID-19 symptoms and seeking a medical diagnosis?
- Is the employee caring of an individual subject to a government order or medically advised self-quarantine as described above?
- Is the employee caring for a child whose school or place of care is closed (or child care provider is unavailable)?
- Is the employee experiencing any other substantially similar condition?
Employees should additionally consider the federal and state disability leave laws, such as the ADA and FMLA, which apply to employees with disabilities, serious health conditions as well as maternity leave. Employees are additionally able to use PTO, however once this option is exhausted, employees can be disciplined up to and including termination for failing to perform job duties or violating attendance policies.
From an employer perspective, many employees will want to work from home because of a family member who may be susceptible to COVID-19. Legally, this person does not have a basis to refuse to report to work. An employer should review the following when evaluating whether or not their employees have an excused leave:
- Is the employee ill, or does the employee have a disability?
- If your business has less than 500 employees, does the employee fall within one of the six FFCRA leave categories?
- Does the employee qualify for leave under the FMLA, as he or she is not asking for time off to provide care for a family member who is ill?
- Does the employee have a family member with a disability, which is not clear with the well infant or well elderly person — and keeping in mind that the ADA does not require that an employer provide accommodations for a family member of an employee?
Underlying Health Conditions
A well employee who claims he cannot work because of an underlying condition which puts them at higher risk if exposed to COVID-19 presents a challenging situation. On the one hand, the underlying condition alone does not prevent the employee from working, as one assumes that this person was working before COVID-19 erupted. On the other hand, the employee is concerned about being exposed to COVID-19 because of his or her health condition.
Under the FFCRA law, employees may request leave if they are unable to work because they have “been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19.” U.S. Department of Labor regulations advise that this means the health care provider has a belief that the employee has COVID-19, may have COVID-19 or is particularly vulnerable to COVID-19. For employers not subject to the FFCRA, they need to consider the ADA and review state and city laws. For example, in New York, the standard for a qualifying leave is stricter — employees must have a quarantine order from a local health authority in order to request New York paid sick leave.
The DOL regulations advise that the employee must first provide the dates for which leave is requested, a qualifying reason for leave, and a signed statement that he or she is unable to work due to the qualified reason. The written statement should be clear that the employee cannot work because of a health condition which makes that employee particularly susceptible to COVID-19. Broad statements that fail to demonstrate that the employee cannot physically report to work, or that fail to provide the name of the health care provider or the specific advice to self-quarantine will not suffice.
Employees should be aware that the U.S. Equal Employment Opportunity Commission requires employers to provide reasonable accommodations to an employee with a disability, to allow the employee to perform essential job functions, absent undue hardship. Here, a number of questions need to be answered:
- Does the employee have a disability under the law?
- Does the disability prevent the employee from performing his or her job duties?
If the answer to either of the above questions is yes, can you accommodate the employee, and still allow the employee to perform those essential functions? The quick answer is if an employee cannot do the job from home, the law does not require an employer to remove an essential function.
In evaluating what accommodations an employer should consider and offer, the EEOC recommends possible changes to the work environment, “such as designating one-way aisles (and) using plexiglass, tables or other barriers to ensure minimum distances between customers and coworkers.”
Employers may also consider staggering shifts and modifying the employee’s schedule, or moving the employee to a different position temporarily. The employer can also provide face masks and gloves, if available, to limit exposure. While the DOL and EEOC encourage employers to be flexible, employees must still be able to perform essential job functions and adhere to an employer’s attendance policy.
Employers faced with employee requests for COVID-19 related leave must review each request on a case-by-case basis, considering all facts before making a decision to deny or grant leave, or making any other employment decision related to the employee.
Thanks to our friends from Seigel & Rouhana for their insight into employment law.