Alabama Retail Association’s employment law partner, Lehr Middlebrooks Vreeland & Thompson, P.C., answers frequently asked questions related to COVID-19 return-to-work, leave and work-at-home arrangements and refusal of available work.
Can we take employees’ temperatures before each shift?
Yes. If there is an elevated temperature, you have the right and arguably the duty under OSHA to refuse the employee to report on to work absent a negative advice, which is that employees recovering from COVID-19 symptoms can return to daily life when they are fever and cough-free for 72 hours without the assistance of medication AND seven days after the onset of symptoms.
Employers should also be aware and ready to accommodate an employee who can establish that their elevated temperature is an effect of a disability or medication taken due to a disabling condition. For employers of fewer than 500 employees, employees with symptoms of COVID-19 seeking a medical diagnosis/testing will qualify for up to two weeks of full pay, subject to a $510/day cap under the Emergency Paid Sick Leave Act of the Families First Coronavirus Response Act. You can use this “carrot” to encourage an employee to leave the worksite with a stated intent to seek diagnosis and have them complete a request form (link to a model request form).
May we ask an employee or applicant “Are you experiencing symptoms of COVID-19, like fever, cough, fatigue, difficulty breathing?”
Yes, those are permissible questions. If the answer is yes, you should advise the employee consistently with the above response, ideally turning the employee into an individual seeking a COVID-19 diagnosis and eligible for Emergency Paid Sick Leave.
What can I do if an employee has a cough but no other symptoms and other employees do not want to work with the coughing employee?
An employee with a cough may be required to wear personal protective equipment (PPE) on company premises. If other employees refuse to come to work because of their concerns about safety, that is a protected activity under the National Labor Relations Act and the Occupational Safety and Health Act. This means that you may replace those who refuse to work because of safety concerns, but they may not be terminated. Also, those who refuse to work should not qualify for unemployment compensation benefits.
I do not need to recall everyone from layoff. How do I decide whom to recall without ending up with a discrimination claim?
There are several approaches to consider for a recall decision, and you may use a combination of approaches:
A. Length of service (seniority). The advantage to this is that it’s objective and predictable — there are no subjective performance, behavior or attitude-related factors to consider. The advantage is also the disadvantage: the employer gives up its right to recall employees based on job-related performance, skill or behavior factors. One approach that may blunt this is that to modify the length-of-service approach to include the requirement that no disciplinary actions must have occurred within a certain period of time; if they have, the employee moves to the bottom of the list.
B. What is the skill set needed moving forward? You may have concluded that you were able to combine functions and do not need as many employees as prior to the reduction. Treat the recall decision as a hiring decision. Identify the skill set and ability needed moving forward. Consider prior performance, but a prior good performer who has a narrow skill set may not be as desirable a hire as someone with a broader skill set.
C. Compare overall work records, attendance, attitude, and length of service. Evaluate candidates based on those factors, where differences are based on facts. Be careful about emphasis placed on prior performance appraisals, especially when comparing employees working for different supervisors. An inflated prior appraisal may lead to returning someone who is not as strong as another employee. Rather than relying exclusively on prior performance appraisals, evaluate the candidates now using those job-related metrics needed for the future.
How do I respond if an employee I am calling back to work refuses because they just want to stay home and collect unemployment benefits?
Unless the reason for staying home is related to the employee’s COVID-19 illness or a particular susceptibility to COVID-19, care for another with COVID-19, or loss of childcare due to COVID-19, an employee who declines a return-to-work request should no longer be eligible for unemployment benefits.
Some employees say they are “afraid” to return to work, even though nothing medically predisposes them to either COVID-19, anxiety disorders or other potentially disabling conditions (those situations will need to be evaluated under traditional Family Medical Leave Act and/or Americans with Disabilities Act). LMVT recommends telling those employees that while the company will consider them eligible for rehire if they present themselves, they will be regarded as a resigning employee and/or they will be replaced. At this point, their unemployment benefits should terminate.
What if the employee exhausts the Emergency FMLA expansion and still cannot find arrangements for child care?
If Emergency FMLA is exhausted, the employer’s obligation to continue with 2/3 pay ends. An employer may tell the employee:
- The job will remain open for a specific period of time and if the employee cannot return to work, the job will be filled; or
- The employer will fill the job now.
In either situation, you may tell the employee that if the child care situation is resolved, the employee should notify you and you will evaluate what positions are available, if any.L
PAID LEAVE TO SUPPLEMENT UNPAID
OR PARTIALLY PAID LEAVES FAQS
These questions relate to the Emergency Paid Sick Leave (EPSL) and Emergency FMLA Expansion under the Families First Coronavirus Response Act (FFCRA)
An employee has requested leave to care for a family member with COVID19. We are covered by the Families First Coronavirus Response Act provisions for Emergency Paid Sick Leave and Emergency FMLA Expansion. May we require the employee to use accrued vacation leave to supplement his 2/3 emergency paid sick leave payment?
No. The DOL’s Q&A (See Question 32) indicates that an employer cannot require an employee to supplement any emergency paid sick leave with accrued available employer-provided paid leave.
We are covered by the Families First law and an employee has requested leave due to lack of childcare and school closure. May I require the employee to use their available emergency paid sick leave or available vacation leave to “cover” the unpaid first two weeks of Emergency FMLA?
No. The statutory language indicates that EPSL is something the employee “may” use in this situation. No guidance from the DOL gives the employer the right to force EPSL on an employee in the first two weeks of EFMLA, though most employees will want to use EPSL if they still have it available in this circumstance.
The DOL’s final rule and Q&A suggest that only the employee can choose to use available accrued paid leave for the unpaid first two weeks of the Emergency Family Medical Leave Act, if Emergency Paid Sick Leave is not available. The employee can only apply accrued paid leave in this circumstance if the leave would be available for the employee to provide childcare (ex: to care for a sick child, spend time with a child, etc.).
May I require an employee who requests leave due to lack of childcare and school closure to use available vacation leave to “cover” the remaining one third (1/3) pay during the partially paid weeks (weeks 3-12) of Emergency FMLA? We are covered by the FFCRA.
Yes, as long as employees could generally use vacation for the purpose of providing childcare. The revised rule on the Families First law kept language indicating that the employer could “require” such accrued paid leave use.
If you are an Alabama Retail Association member and have a COVID-19 employment law question not covered above, complete this form and an Alabama Retail staff member will contact you with a name, phone number and e-mail for a hotline attorney.