In the interest of helping people prepare for Georgia's businesses to reopen, we've put together some questions and answers we hope will be informative and educational for employees who may be called back to work soon.
Does my employer have to apply for a payroll loan under the Paycheck Protection Program (PPP)?
No, the PPP is a loan that employers may or may not choose to take, but the Fair Labor Standards Act (FLSA) still requires employers to pay employees for their work, including minimum wage and overtime pay for non-exempt employees. Employees should not be asked or required to volunteer or work without compensation.
If my employer calls me back to work, do I have to go if I'm afraid of contracting COVID-19?
If your employer re-opens and calls you back to work, you may be faced with a difficult decision about whether to return to your job. If you choose not to to return when work is available for you, it's likely that the Department of Labor will consider such a decision to be job abandonment. In any event, you would no longer be eligible to receive unemployment benefits. To that end, many states are requiring employers to immediately report to the Department of Labor any refusals to return to work by employees.
What if I have an existing disability that puts me at high risk from COVID-19?
If you have a disability, the Americans with Disabilities Act (ADA) still applies and allows you to ask your employer for a reasonable accommodation, such as a modified or staggered work schedule, remote work if feasible, or minimized contact and barriers where remote work is not available. Your employer must still engage in the interactive process with you about your disability, including discussions about your limitations and what accommodations can be provided that will allow you to continue performing the essential functions of your job. You should not be terminated or otherwise retaliated against for disclosing your disability or requesting an accommodation.
Can my employer ask me about my symptoms if I am sick or test me for COVID-19?
Given that COVID-19 is a very serious threat to community health and safety, the EEOC and the CDC believe employers should be able to exercise some limited control over workplace safety with regard to the virus. Guidelines for employer testing of employees for COVID-19 include checking employee temperatures, sending home any employees who test positive or have COVID-19 symptoms, and requiring employees to report their own travel history as well as travel history of anyone with whom they live. Employers may also require medical certifications when job-related and consistent with business necessity, but should not discriminate or target employees because age or disability in any case. Questions asked of employees should be strictly limited to those related to COVID-19 symptoms, i.e., fever, chills, cough, sore throat, shortness of breath, loss of smell or taste, and GI issues such as nausea, diarrhea or vomiting.
Can my employer share information about my testing or illness with others?
Generally, information and testing related to COVID-19 should be kept confidential by employers, but there are exceptions related to containing the spread of the virus. Employers may share information with public health agencies about workers who test positive, and employment agencies may notify an employer if an employee is positive for COVID-19.
Can an employer require pre-employment testing and refuse to hire me or withdraw a job offer if I test positive for COVID-19?
Yes, employers can require pre-employment testing where a conditional job offer was made, as long as they apply the same requirements to everyone, but employers cannot single out high-risk applicants like older, pregnant or disabled workers. Generally, employers can delay start dates or withdraw job offers altogether if a prospective employee cannot safely enter the workplace; however, EEOC guidelines are new and very general at this time, and do not yet account for circumstances where disability, pregnancy, or advanced age are implicated.
Can an employer show preference for an employee who tests positive for antibodies to COVID-19?
Antibody testing raises discrimination concerns on a number of levels. First, it could cause preferential treatment of those who have been sick and recovered and discriminatory treatment of those who have not been sick yet. Second, it could have a disparate impact on older workers who may have been sheltered longer or more effectively than others. Third, certain kinds of testing could lead to GINA claims (Genetic Information Discrimination).
Can my employer fire me for expressing my concerns or talking with my coworkers about work exposure to COVID-19?
No, this is considered protected "concerted activity" under the National Labor Relations Act (NLRA). Concerted activity is two or more employees acting together to try to improve wages, hours or conditions of employment, including discussing or voicing concerns about things like masks, sanitation or social distancing.
Can my employer fire me for reporting unsafe work conditions to OSHA?
No, this would be an illegal form of retaliation.
What about emergency paid sick leave or extended FMLA leave under the Families First Coronavirus Response Act (FFCRA)?
The FFCRA will continue to apply through December 31, 2020. You can learn more about employee rights under the FFCRA in our previous blog post, here.
What are the current best practices for employers who are re-opening?
- Allow telework for those whose job can be done remotely.
- Consider staggered shifts if possible
- Consider re-opening in phases from most essential functions and employees to least essential.
- Continue to observe social distancing as much as possible
- Close common areas to discourage close congregation.
- Increase ventilation and air circulation if possible.
- Observe distancing etiquette (no handshakes, contain coughs)
- Intensify cleaning and disinfecting workspaces as much as possible.
- Consider limiting any non-essential travel.
- If possible, provide PPE (personal protective equipment) or masks (spread prevention) according to recommendations and guidelines of OSHA and CDC, and explain any requirements.
- Consider allowing employees to wear their own masks even if not required.
- Be prepared to provide accommodations for vulnerable employees.
What are the current recommended best practices for employers who are testing employees for COVID-19?
- Use touchless thermometers
- Maintain social distancing
- Scan employees, visitors and visitors - do not discriminate
- Use CDC recommended cutoff of 100.4 degrees
- Maintain employee privacy
- Keep information confidential
At Barrett & Farahany, we understand that the prospect of returning to work and potential exposure to COVID-19 is both stressful and concerning for employees, and we are here to help in any way we can. If you have questions or believe that your employer has done something illegal, please reach out to us at 404-487-0903 so that one of our attorneys can talk through your situation with you and advise you about what you can do to best protect yourself and your job.