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COVID-19: Returning to the Workplace Concerns

With June 1st quickly approaching and leading to many areas re-opening, whether it is your state, county, or city, returning to the workplace in the time of COVID-19 is imminent. With this reality, of returning to the workplace, many are sure to experience anxiety, fears, concerns, and apprehension about what awaits them in this new work environment. The recent bankruptcy filings of J.Crew, Neiman Marcus, and JC Penny leave many wondering if they have a place of employment to return to. Employment-related questions I have received are:

If I am scared and refuse to return, can I still collect unemployment?
I can’t return to work because I have no childcare options, is there any paid leave available to me?
I have a medical condition making COVID-19 a severe threat to my health, what are my options?
What legal requirements must my employer comply with to ensure a safe working environment?
Can my employer require me to get tested for COVID-19?

Unemployment Benefits – What if I refuse to return due to COVID-19 fears?

If you are receiving unemployment benefits, when you file your weekly unemployment certification, you are asked if you have turned down employment opportunities. If answering yes, you will likely be disqualified from receiving benefits, unless you have a legally justified reason; being nervous or anxious will not cut it. Therefore, if your employer re-opens and expects you to resume working, a refusal can lead to not only a disqualification from further unemployment benefits but also having your employment terminated.

Family Medical Leave Act – What if my children are still at home because schools, camps, and daycares are closed?

Childcare concerns are a reality many working parents face; the workplace is re-opening, and parents are expected to return but have young children that cannot be left alone. Schools, camps, daycare, and other childcare options (grandparents, nannies, babysitters) are not available during the pandemic. One option for job/pay protection is the Families First Coronavirus Response Act (FFCRA), which was passed by Congress at the beginning of the COVID-19 pandemic. This Act requires certain employers to provide employees:

– Two Weeks (80) hours of paid sick leave at regular pay rate if unable to return to work due to being quarantined by government order or experiencing COVID-19 symptoms and awaiting a test or results; or

– Two weeks (80) hours of paid sick leave at 2/3 of pay rate if unable to return because of a bonafide need to care for a child or a loved one with COVID-19. For children, a bonafide need means school, daycare, or other childcare being unavailable directly due to COVID-19.

Additionally, for childcare concerns, if an employee has worked for an employer for at least 30 days, the employer must provide:

– Up to an additional ten weeks of paid leave at 2/3 of pay rate if the employee has a bonafide need for leave due to COVID-19 related childcare issues.

Employers subject to this Act are those with less than 500 employees. Small businesses with less than 50 employees may qualify for an exemption from the paid leave requirements relating to childcare. The 50 or less employer must prove that adhering to the FFCRA requirement would jeopardize the viability of the business.

The FFCRA does not extend one’s 12 weeks of unpaid leave under the Family Medical Leave Act (FMLA). It amends the FMLA by requiring some leave to include pay for qualifying employees. Therefore, if before the pandemic, an employee had used all 12 weeks of FMLA, the employee is not eligible for FFCRA benefits.

The above does not apply if your employer permits you to telework or is larger than 500 employees. For more information on the FFCRA, click here for answers to FAQs.

Americans with Disabilities Act – What if I have a medical condition causing COVID-19 to be a threat to my health?

If you have a medical condition that makes returning to the workplace a health risk, you can still be required to return to work. However, it will be wise for your employer to address your medical concern as if you were asking for an accommodation under the Americans with Disabilities Amended Act (ADAA).

The ADAA requires employers to engage in an “interactive process” to provide a reasonable accommodation for an employee’s disability accommodation request. The legal definition of a disability is “a physical or mental impairment that substantially limits one or more major life activities.” Examples of conditions placing individuals at higher risk concerning COVID-19 are diabetes, heart disease, lung disease, and immunodeficiency, which are all considered disabilities under the law. If you are in this situation, it is best to obtain documentation from a medical professional supporting your concern and risk. Provide this to your employer and engage in an interactive process regarding managing your disability as it relates to COVID-19. Accommodations can include, (1) working from home, (2) amending your work schedule, (3) eliminating non-essential job functions, (4) changing your workspace or location in the workplace, (5) a higher standard of employer-provided Personal Protection Equipment (PPE), or other protective measures put in place. If no accommodation is feasible, then you can look to the FMLA for possible job protection.

If you are pregnant and returning to the workplace places you at specific medical risk from COVID-19, the Pregnancy Discrimination Act provides you the same protections and requirements for accommodations as the ADAA.

Lastly, if the anxiety or fear you are experiencing is debilitating and well beyond just a general apprehension, if a mental health professional provides a diagnosis that returning to the workplace puts you at risk for a mental health condition, you may fall under ADAA protection.

If you find yourself out of work and protected under the ADAA for COVID-19 related reasons, look to your company’s short- and long-term disability plans regarding continuance of income.

OSHA – What if my employer is not taking action to keep the workplace safe and adhere to CDC and government requirements?

If an employer has an inadequate approach to keeping employees safe from COVID-19, you can look for protection under the Occupational Safety and Health Act (OSHA). If the employer’s actions are reckless, you may be able to use it as a legally justifiable reason to collect unemployment while refusing to work. OSHA requires employers to keep the workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” The threat of COVID-19 qualifies as a recognized hazard. However, if your employer is enforcing social distancing and following government guidelines on hygiene (masks, hand sanitizer, gloves, routine cleaning and disinfecting schedule, etc.), the employer is complying with OSHA. Just because you think it is not enough will not suffice as an OSHA violation.

HIPPA and Medical Testing – Can my employer administer testing for COVID-19 or require reporting of symptoms?

Yes. The CDC and state and federal governments are recommending employers put in these measures. Whether it is taking temperatures, providing access to testing, or daily certifications from employees regarding possible symptoms or exposure related to COVID-19, the Equal Employment Opportunity Commission (EEOC) has issued guidance in this area. Examples of some advice are, (1) employers must use testing options that are deemed “accurate and reliable” by the Food and Drug Administration (FDA); (2) any health information obtained through testing or other means must be kept confidential; and (3) the examination should be uniform for all similarly situated employees.

The EEOC and Department of Labor expect employers to engage qualified individuals to conduct the testing and that those individuals wear appropriate PPE.

Conclusion

The above is a general explanation of laws that may apply to COVID-19 workplace-related issues, and the requirements and standards vary by situation. Keep in mind this situation is new for you and your employer, so be patient and effectively communicate. Your employer may be doing the best they can and require additional time to put protections in place.

If you have legal concerns or questions regarding returning to the workplace in the age of COVID-19, I advise you to contact an experienced and trusted employment law attorney before making any decisions or issuing communications to your employer. An employment law attorney can provide you guidance on how to approach the situation and provide the best opportunity to achieve the results sought or alleviate the concerns you have.

Please do not hesitate to contact me, Paul S. Peters III, Esquire, with any COVID-19 employment-related questions or concerns. Call me at 215-291-2944 or email to ppeters@thepetersfirm.com.

www.thepetersfirm.com

– Paul S. Peters III, Esquire is an attorney located in Elkins Park, PA serving clients in Montgomery, Philadelphia, Bucks, Delaware, Chester, Lehigh, Lancaster, Northampton, and Berks Counties in the areas of Employment Law & Small Business Needs, Bankruptcy, Criminal Defense, Family Law, and Estate Planning.

TRUSTED, COMPASSIONATE, ZEALOUS, AND EXPERIENCED PENNSYLVANIA EMPLOYMENT LAW ATTORNEY

If you are involved in an Employment Law matter as an employee or employer and need legal guidance, advice, and consultation in: Montgomery, Philadelphia, Bucks, Delaware, Chester, Lehigh, Lancaster, Northampton, Berks, Adams, Cumberland, Dauphin, Franklin, Fulton, Huntington, Juniata, Lebanon, Mifflin, Perry, Snyder, York Bradford, Cameron, Centre, Clinton, Lycoming, Montour, Northumberland, Potter, Sullivan, Tioga, Union, Carbon, Columbia, Lackawanna, Luzerne, Monroe, Pike, Schuylkill, Susquehanna, Wayne, and Wyoming County

It is important you contact the trusted and experienced Employment Law Attorney:

215.291.2944

ppeters@thepetersfirm.com

COVID-19: Returning to the Workplace Concerns