BACK TO WORK – NOW WHAT?
For the past eight weeks, businesses have struggled to acclimate themselves to the new normal. With over 41,000 people infected, Florida has suffered greatly. COVID-19 has devastated Florida financially. More than 1 million Floridians have applied for unemployment. With a workforce of a little over 10 million people, Florida suffers 10% unemployment. Those businesses that remain open, now operate the majority of their operations remotely and maintain contact via zoom or other online platforms. The quarantine is not permanent. Businesses will resume their operations and people will return to work alongside their co-workers. The big question employers face is: what form will the workplace take? If you are an employer whose staff is returning to work, it is essential that you know the details of federal, state and district laws:
1. Florida Law: If some staff return on a part-time basis, they may be eligible to receive certain unemployment benefits. Should the employee earn less than the unemployment benefit, the employee may receive partial payment.
2. Federal Law: The most significant piece of Federal legislation passed was the Families First Coronavirus Response Act (the “FFCRA”); passed on Apr. 1, 2020). The FFCRA requires paid sick leave under the following circumstances:
- If the employee is subject to a Federal, State or local quarantine or isolation order related to COVID-19;
- If the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
- If the employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
- If the employee is caring for another individual who is subject to a quarantine order or who has been advised by a health care provider to self-quarantine;
- If the employee must care for his or her child because the school or place of care has closed, or the child care provider of such child is unavailable due to COVID-19;
- If the employee is experiencing any condition substantially similar to COVID.
The Families First Corona Response Act has expanded the Family Medical Leave Act (FMLA). Typically, employees are ineligible for FMLA leave until they have worked for an employer for at least 12 months and 1250 hours. Under the FFCRA, employees who have worked for 30 consecutive days, regardless of the number of hours, are eligible for 12 weeks of job protected FMLA leave to care for a child.. The first 14 days of leave are unpaid (although employees may elect to use the 14 days they have under the FFRA). After the first 14 days, employees are entitled to paid leave at 2/3 their regular rate of pay up to $200 per day.
Employers are now permitted to make more probative inquiries into their employees’ health. Under the ADA, employers are typically forbidden to take the temperatures of their employees. During the coronavirus pandemic, however, employers may check the temperatures of their employees and inquire as to whether their workers are experiencing symptoms of the pandemic virus. COVID-19 symptoms include fevers, chills, cough, shortness of breath, sore throat and loss of taste or smell. This information must be maintained as a confidential medical record in compliance with the ADA/FCRA. Should an employee become ill with symptoms of COVID-19, the employer may request that the worker leave.
An employer may require that an employee obtain a doctor’s note prior to returning to work. Moreover, an employer can administer a COVID-19 test. It is highly advisable that the employer review the guidelines from the FDA on safe and accurate testing and consider the incidence of false-positives or false-negatives associated with a given test. While an employer can inform other employees that they have been in contact with someone who has been infected, they cannot disclose the employee’s identity.
Finally, employers can take significant measures to promote a safe workplace for their employees. An employer may require an employee to wear protective gear (such as masks and gloves) and practice infection control protocol (such as hand washing and social distancing). When an employee with a disability needs a reasonable accommodation under the ADA (non-latex gloves for those with allergies, modified face masks for interpreters), the employer should discuss the request and provide the modification or an alternative if feasible and not an undue hardship under the ADA or Title VII.
At least 23 states are partially re-opening their economies as of May 26, despite warnings from public health experts that the U.S. lacks the testing and contract tracing capability to support such measures. The onus falls on each business to take the necessary precautions to protect workers and customers. If you are a business owner, it is critical that you obtain the advice of knowledgeable legal counsel to ensure you that you are doing your utmost to keep employees and customers safe.