by Sally Colby
There’s plenty of confusion surrounding employers’ obligations in relation to government programs and laws surrounding COVID-19. Schaun Henry, partner in McNees, Wallace and Nurick LLC, and Brooke Duer, staff attorney at the Penn State Center for Agricultural and Shale Law, recently discussed these issues.
“What you can’t expect during this pandemic is that government is going to have all the answers,” said Henry. “It’s been more than 100 years since we’ve dealt with something like this, and we’re going to have a dearth of knowledge. Most of the time when laws are being made at the federal level, they are proposed by agencies – people have the opportunity to comment.”
However, that opportunity is absent because things are moving too fast. Henry said employers should remain flexible and understand that there will be gaps in information. Despite gaps, employers should help put workers’ fears at ease. “This isn’t something they have seen before,” said Henry, relating a story of an employee who was afraid to return to work. “Make sure whatever steps you take will tame workers’ fears about coming to work. People are naturally afraid of what they don’t understand.”
Henry said there are many questions surrounding the Families First Coronavirus Response Act (FFCRA). “One of the questions we get is ‘What documentation can I request?’ or ‘Can I request documentation at all?’” he said. “You not only can request documentation, but if you expect to get a payroll tax credit at the end of all this, you’re going to need to collect certain information.”
Without appropriate documentation showing the reasons employees are absent from work, employers may find it difficult to get the payroll tax credit. “If someone within your organization either asks for paid sick leave or paid FMLA leave, you should have documentation like a form for them to request the information,” Henry said. “Once you have that form, you can request the employee’s name, dates leave is required and the reason for leave.” Providing a standardized form helps the employee fill out the information correctly, especially if some of the questions can be answered by checking a box.
“If one of the reasons an employee is taking paid sick leave is because they’re subject to a quarantine order, you must provide the name of the government entity issuing the order,” said Henry, adding that that’s important now because of travel restrictions. Employees who aren’t able to come to work for reasons that are not qualifying, such as individuals who are simply too afraid to come to work, are not eligible for unemployment compensation.
Regarding various states’ requirements for mask-wearing, Henry said heat exhaustion should be taken seriously. “People can die of that a lot more quickly than they’ll die of COVID-19,” he said. “If temperatures spike above 85º and people are working outdoors without shade, you can ask them to remove masks.”
Those who are working outdoors should remain in their particular work areas and avoid interaction to the extent possible. Employees should be reminded about social distancing in break areas. Consider shift work when possible to provide more space between employees.
Frequent cleaning of common areas such as lunch or break areas is essential, and limit visitors to the workplace. If people are working indoors (such as a packing facility) and are unable to distance themselves, erect partitions to divide them. People working within six feet of a common hallway should be partitioned, and common areas and touch points should be cleaned and sanitized frequently.
If an employer requires temperature screening, for privacy reasons, the employees’ direct supervisors should not be the ones to take temperatures. “If you have supervisors taking temperatures of employees, have the supervisor from shift one take temperatures of employees on shift two, et cetera,” said Henry. Keep a chart and use a check mark or an X if a temperature is over 100.4º so you aren’t keeping personal health information.
Employers can ask employees where they have traveled. “If an employee is supposed to be going on vacation, you can say ‘Where do you plan to go?’” said Henry. “When they return, you can ask them ‘Where did you go?’” Employers can also ask about any close contacts employees have had within the past 14 days.
Attorney Duer said the provisions for paid sick and emergency FMLA leave expire in December. “We have to be ready for the idea that we may have a recurrence and go backwards,” said Duer. “We may have nonessential businesses shut. No one should assume we won’t go backwards and have businesses close.” Duer said the first two weeks of leave are unpaid, and the last 10 weeks are the ones for which an employee can be paid if they’re taking leave. “If an employee has accrued leave, they can take it in those first two weeks.”
Duer mentioned a self-certifying small business exemption that employers can possibly claim if they want to say they qualify and don’t want to give paid leave under the FFCRA. “The employer has to document it for themselves, keep the records and be ready for the government to come and examine what went on if there’s a complaint of some kind that employees are not getting paid leave they’re entitled to,” he said.
Regarding the risk of an employee holding their employer responsible for acquiring COVID-19 on the job, Duer said, “Everyone in this country at this point has grown up and worked their entire professional life in the age of workers’ compensation. Workers’ compensation means a worker cannot sue their employer for an injury received in the workplace – period.” Duer added that media accounts to the contrary are examples of extremely creative lawyering, and the courts will handle such cases.
“Do not give in to the false furor over employers somehow being liable for employees contracting COVID in the workplace,” said Duer. “That’s what workers’ comp is for. That is the bedrock of our employment relationship and our legal doctrine that surrounds that employment relationship. It’s 100% protection from claims from your employees make against you.”
If an employee claims they got COVID-19 from another employee, Duer said the employer can file a workers’ comp claim if there’s some basis for such a claim. He reminded employers to check with their comp carrier and let the carrier take care of it. “That’s what you pay premiums for; that’s why the insurance is there,” he said. “They’ll deal with the causation issue, and whether it can be proven if it can be related to the workplace itself.”
Federal law requires an Employee Rights poster to be present in the workplace, available at: laborposters.org/federal/1629-coronavirus-leave-poster-poster.htm.