By Tannera G. Gibson

The outbreak of COVID-19 has created unprecedented challenges in education, government, and the workplace overall.  The pandemic has forced employers to evaluate strategies, policies and procedures, and develop practices for circumstances with no roadmap.

What do you do when you, as an employer, are faced with mandated closures, shelter-in-place orders and recently enacted legislation expanding the Family and Medical Leave Act and instituting emergency paid leave? Keep calm, and plan.

Where do you begin? As a general rule, employee safety should be paramount.  As the landscape changes, and the United States sees rising numbers of COVID-19 cases, employers must be prepared to adapt as necessary.  At one point, just a few weeks ago, implementing work-from-home strategies was adequate contingency planning for a situation that was not certain to arise.  Today, however, those plans are essential. Consider the following as you continue to adapt to a rapidly changing global landscape:

Telework: Determine which positions permit telework, if you have not done so already, and ensure those employees have necessary tools to successfully work from home (previously, permitting work in “alternate locations” was sufficient, but given the rising number of shelter-in-place orders being issued around the country, employers should require teleworking employees to work only from home if covered by a shelter-in-place order).

Employees unable to telework should be permitted to continue working while maintaining a safe social distance from other employees of at least 6 feet, where possible.  This option is only applicable to employers with businesses unaffected by mandatory closures, and is subject to the safety considerations discussed below.

Safety: For employees unable to telework, employers should institute safety measures in line with recommendations from the Centers for Disease Control and Prevention (“CDC”), their local health department, and the Occupational Safety and Health Administration, where applicable.

Outside of ensuring employees can maintain a safe distance from each other in the workplace, employers must implement business appropriate safety practices.   For instance, if your business requires employees to work with the public, offer hand sanitizer to members of the public and encourage employees to frequently clean their areas with disinfectant wipes or spray.  In some instances, providing gloves may be appropriate; however, employers should follow CDC guidelines in doing so as there is proof that inappropriate glove use can result in cross-contamination, creating an unintended safety hazard.

Suspend work-related travel to the extent possible, except where the travel is deemed highly essential for business continuity.  Consider using technology in place of travel: video and phone conferencing where possible to avoid unnecessary meetings.

Impose travel restrictions on employees who have met certain criteria, are unable to telework, and intend to return to the workplace.  For instance, if an employee has traveled to an area under a level 3 travel health notice by the CDC, consider requiring a 14-day delay period before permitting an employee to return to work.  For employees who have traveled to cities/states in the United States with high COVID-19 attack rates, such as New York and California, consider a 14-day delay period before permitting an employee to return to work.  Require employees displaying symptoms of COVID-19 to remain home, and offer paid leave where possible, which is discussed further below.

Employees who have tested positive for COVID-19, or who have received a contact notice from a health agency and/or have been tested for COVID-19 and are awaiting results, should be required to remain away from the workplace for 14 days, and strongly encouraged to self-isolate.

Actively encourage sick employees to stay home.  Also encourage employees who believe that they have been exposed to a person with symptoms of COVID-19, or to a person who may have traveled to high risk areas (whether symptomatic or asymptomatic) to stay home. Employees who live with a person who has a confirmed diagnosis of COVID-19 should also be encouraged to stay home.

In instances where you have knowledge that an employee has been diagnosed with COVID-19, consider closing access to his/her work area while having that area deep-cleaned. Employers in this situation should also contact the appropriate health agency to permit other employees to be notified and contact traced.

Ensure that the employees conveying your public health emergency rules (supervisors, managers, etc.)  are adequately trained and well-versed in the policies you plan to implement.  Employee who feel safe and informed at work are more likely to be present and compliant with changing rules and requirements.

Leave: Consider several categories of employees: 1) employees whose positions are business-critical, but they are able to telework; 2) employees whose positions are essential, but not business-critical, but they are able to telework; 3) employees whose positions are essential, but not business-critical, but they are not able to telework; and 4)  employees whose positions are essential for business continuity, but they are unable to telework.

Employers should permit employees falling into categories 1-2 to telework.  In instances where continuing to allow employees in category 2 to telework is not economically feasible, employers should consider the leave options below.  Employees falling in category 3 should be permitted to continue working where economically feasible for the employer; however, if employees in category 3 satisfy any of the safety-sensitive criteria listed above, employers should consider the leave options below.  Employees falling into category 4 will be permitted to continue working, but should not be compelled to work if they satisfy any of the safety-sensitive criteria listed above or if they are at elevated risk because of an underlying health condition.

Relaxed rules surrounding available paid leaves, and relaxed access to unpaid leave should be considered. Rules regarding the provision of a doctor’s note after a prolonged absence, for instance might be relaxed since many health care providers are currently requesting that patients be evaluated by phone before appearing in person.  In instances where an employee satisfies any of the safety-sensitive criteria above, medical clearance requirements should not be relaxed before permitting an employee to return to work.

On April 1, 2020, employers with fewer than 500 employees will be required to offer paid leave to their employees under the Families First Coronavirus Protection Act (“FFCPA”).  There are two components of the leave: (1) emergency paid sick leave; and (2) extended FMLA leave for parents who must stay at home with children whose schools or daycares are closed because of the pandemic.  The FFCPA provides employees with 80 hours of paid sick leave for their own coronavirus-related conditions up to a cap of $511 per day, and for leave for care related to others up to a cap of $200 per day.  The FFCPA also adds an additional qualifying reason to take FMLA leave for any employees who have been employed for at least 30 days and who must stay home to care for children whose schools or daycare are closed because of coronavirus.  This leave, unlike other FMLA leaves, is paid and lasts up to ten weeks after a two week waiting period.  Employees are paid 2/3 of their regular rate of pay up to a cap of $200 per day.  For more detailed information, click here.

Layoffs:  As the pandemic stretches on, many employers are considering layoffs.  Employers who are concerned about providing employees with as much income as possible in spite of a layoff should consider allowing their employees to exhaust all their available sick and vacation time before being laid off.  After that, employees will likely be eligible for unemployment. In Tennessee, employees can apply for unemployment in the case of a temporary layoff, defined as a temporary lack of work during a period of no more than 16 weeks.  During this period, employees do not have to actively look for work in order to draw unemployment. It appears that the Tennessee Department of Labor is currently treating everyone who applies for unemployment for coronavirus-related reasons as being on a temporary layoff.

If you are considering trying to maintain employee healthcare benefits during the layoff, be sure to review your plan document carefully and talk to your third party administrator or your insurance broker before doing do. It can be done, but it is important to do it consistent with your plan.

Layoffs may have implications under the Worker Adjustment Retraining and Notification Act (WARN).  There is an exception for “unforeseeable business circumstances,” which could include an “unanticipated and dramatic major economic downturn” that will reduce the time for notice to as much as is “practicable.”  It is hard to imagine a situation more likely to qualify than the present one.

By Lisa A. Krupicka

Let’s assume that your office is still open despite the “shelter in place” edict from your state or local government.  Nevertheless, your employees are jumpy (not unjustifiably so) about coming to work in spite of your significant efforts to put into place the appropriate requirements for social isolation, hand washing, keeping work surfaces disinfected, etc.  The Americans with Disabilities Act (ADA) can come into play if you have employees who, because they have one of the many underlying health conditions (such as asthma, diabetes, pulmonary disease, or heart disease) that makes them more likely to develop serious complications if they become infected with COVID-19.

Brenda, your accounts payable clerk is 68 and has chronic asthma.  She comes to HR and expresses concerns about coming to work because of COVID-19.   She is not ill but worries that if she is infected with the virus she could become dangerously ill.  She asks to be allowed to stay at home even though she is not set up to work remotely and could not perform the majority of her job duties from home.

So how do you handle this?  As you know, Brenda doesn’t have to mention the Family and Medical Leave Act (FMLA) or ADA in order for those statutes to be applicable.  Brenda is not experiencing complications due to her asthma right now; she is just worried about what might happen in the future.  She therefore does not have a serious health condition that would entitle her to FMLA leave at this time.

But what about the ADA?  Isn’t her request to stay home because of her asthma a request for leave as a reasonable accommodation?  Since you are a prudent HR manager, you decide that it is. (Good job!)  Does Brenda have a disability?  Well, yes, she has asthma but she is asymptomatic right now.  She doesn’t need to go home because of her asthma.  Is being more vulnerable to the virus because of her asthma a disability?  Given the expansive definition of “disability” under the ADA Amendments Act, a prudent HR manager (that’s you) would assume the answer is yes.

Now comes the hard part.  Can you grant the accommodation?  Here’s how you look at it:  would denying the leave create a direct threat to Brenda’s health?  Unfortunately, the answer at best is maybe.  Brenda’s job is not client facing, so her risk is being around her co-workers in an office setting where everyone is working six feet apart and regularly washing their hands.   When it is the employee making the request, the conservative approach would be to grant it, but remember that granting Brenda’s request will likely require you to grant the request of any other employee who is in a situation similar to Brenda’s. However, if you are contemplating ordering an employee like Brenda to go home when she doesn’t want to go home and lose pay, it is a closer question.

The Employment Team at BP&J is here to help you answer the close questions.  Just give us a call.

By Gary S. Peeples

One issue that employers frequently face involves the intersection of various leave laws that might apply when an employee is injured at work.  An on-the-job injury may be compensable under workers’ compensation law.  And employees who are injured on the job often need—and may be statutorily entitled to—one or more forms of job-protected leave.

Although the phrase “workers’ compensation leave” is sometimes used as shorthand for an employee who is away from work because of an on-the-job injury, Tennessee workers’ compensation law does not itself provide for any job-protected leave, although it has become conventional for employers to call the time an employee has been put off work and is receiving temporary total disability payments as “worker’s comp leave.”  There are, however, at least two federal leave laws that may be in play after an employee has suffered an on-the-job injury.  The first is the Family and Medical Leave Act (FMLA), under which an employee may be entitled to up to 12 weeks’ worth of job-protected, unpaid leave in a 12-month period for a serious health condition.  Employees who have suffered compensable injuries for workers’ compensation purposes are often, but not always, covered by the FMLA.  Although the FMLA covers serious health conditions whether they arise at work or elsewhere, sufficiently serious workplace injuries will typically qualify as a “serious health condition” under the FMLA.

Nevertheless, whether the FMLA applies or not, an employee who has been injured on the job may be entitled to unpaid leave as a reasonable accommodation under the Americans with Disabilities Act (ADA).  Courts have repeatedly held that, in appropriate circumstances, unpaid leave—sometimes even well beyond the twelve weeks provided by the FMLA—may be a reasonable accommodation to which a disabled employee is entitled.  The ADA, unlike the FMLA, applies to all employers with 15 or more employees.  Because of the ADA’s broad definition of “disability,” many employees who have suffered a compensable workplace injury will also qualify as “disabled” under the ADA.

The next question is “how long must an employer permit an employee to stay out?”  Naturally, because this is a legal question, the answer is “it depends.”  The FMLA, where it applies, provides a minimum of 12 weeks’ worth of job-protected, unpaid leave.  According to the Equal Employment Opportunity Commission, twelve weeks of FMLA leave is the minimum accommodation required by the ADA, which, depending on the circumstances, may require an employer to offer several months of job-protected, unpaid leave.  Still, there are limits.  Just because an employee has suffered a compensable workplace injury does not mean that he or she is entitled to job-protected leave forever.  We have seen cases where an employee has been out for 12 months or longer on worker’s compensation leave—in those cases, it would typically be permissible to end the employment relationship without fear of liability under the ADA, the FMLA, or for retaliatory discharge under the workers’ compensation statute.  This is a very tricky area, and when in doubt it is prudent to seek the advice of employment counsel.