Coronavirus update 4-21-2020: Can and should employers require antibody testing as a return-to-work condition?

We all want to get back to work as safely and as quickly as possible. One thing that would allow us to do this with confidence is widespread antibody testing—a quick blood test to reveal if one carries the COVID-19 antibodies from which an employer can presume exposure, immunity, and a reasonable degree of safety for an employee to return to work.

This testing, however, raises two critical questions.

1/ Can employers legally require it?
2/ Should employers rely on it as an indicia of safety?

Coronavirus update 4-20-2020: What a business operating in the time of coronavirus CANNOT look like

On Friday I shared my thoughts on the measures businesses absolutely must take as a condition to reopening when governors restart their economies.

Today, I am sharing the consequences that will happen if states and businesses get this wrong.

NPR reports on the Smithfield Foods pork processing plant in Sioux Falls, South Dakota, which has become a hot spot of coronavirus transmission. That facility has seen 634 of its 3,700 total employees positive. Sadly, the first employee recently died.

Coronavirus update 4-17-2020: Preparing your workplace for a restarted economy … plus a podcast and some music

President Trump has been talking for weeks about restarting the economy and getting employees back to work. Last night he unveiled his three-phased guidelines to reopen the country. (I’m ignoring the scary fact that WWE Chairman Vince McMahon was one of its key architects.) And now governors around the country (with whom the actual reopening authority actually rests) are joining the conversation.

Yesterday, Governor Mike DeWine of Ohio (who has been internationally praised for his forward-thinking handling of the coronavirus crisis in my state) announced that businesses in Ohio will begin slowly reopening starting May 1.

It’s unclear yet which businesses will be first to reopen (let me suggest non-essential manufacturing) or what standards they will be required to meet as a condition to opening and remaining open.

Coronavirus update 4-16-2020: FBI warns companies about employees faking coronavirus diagnoses

Given the amount of time I spend on this blog pointing out the awful things that employers do to their employees, I thought I’d flip the script and focus my glare on a group of horrible employees.

According to CNN, the FBI has advised businesses that employees are faking positive coronavirus diagnoses with phony doctors’ notes and other fraudulent documentation.

Coronavirus Update 4-15-2020: Declaring professional wrestling an essential business demeans the sacrifices all essential workers are making

Have you taken the “Florida Man challenge”? It’s a hoot. You type “Florida man” along with your birthdate to discover the head-scratching things Floridians have done on that date.

For example, “Florida Man February 13” (my birthday) yields this gem: Florida Man Carrying Steroids and Marijuana Crashes Van While Attempting to Flee Cumby PD.

And if you take the challenge for today, winner winner chicken dinner: Florida Man High on Flakka Has Sex with Tree and Calls Himself Thor.

It should therefore not come as any surprise to learn the state from which this headline originated: DeSantis Deems Pro Wrestling “Essential Business” Amid Statewide Stay-at-Home Order.

Coronavirus Update 4-14-2020: Telecommuting as a reasonable accommodation

Telecommuting has become the coronavirus norm. The CDC recommends that employees who can work from home do so, and state Stay at Home orders are requiring telework whenever possible.

The larger questions, however, are whether COVID-19 will change our national outlook on the viability of telework, or when his crisis ends will businesses return to their pre-coronavirus telework hostility?

I hope it’s the former but I fear it’s the latter. And if it’s the latter, Tchankpa v. Ascena Retail Group, which the 6th Circuit decided in the midst of the growing coronavirus outbreak and just five days before the WHO declared a viral pandemic, gives us some insight into the future issues.

Coronavirus Update 4-13-2020: Trying to make sense of the substitution of employer-provided leave for EPSL and EFMLA under the FFCRA

One of the more confounding sets of rules under the FFCRA is when employers can require employees to substitute an employer’s own provided leave (which, for the sake of convenience I’ll refer to throughout as “PTO”) for paid leave —the 80 hours of paid sick leave (“EPSL”) or the 12 weeks of expanded family and medical leave (“EFMLA”)—mandated by the Families First Coronavirus Response Act.

Today I am going to make an attempt to explain these rules, but I’ll fully admit that it’s still not 100 percent clear to me. The text of the FFCRA seems to suggest that an employer can never require the substitution of PTO. The DOL’s proposed regulations, however, muddy the waters, which were muddied even further by an amendment to those proposed regulations published last Friday, which deleted language from the regulations’ explanatory discussion relating to the substitution of PTO for EFMLA.

So let’s try to sort it all out.

Coronavirus Update 4-10-2020: The top 5 things I’m doing besides working

How are you filling your non-working time? We used to fill our time running our kids all over the place for various lessons, rehearsals, and gigs. Now, however, we have a lot of down-time, with nothing to do. So how am I filling my time when I’m not working? (Which, btw, I’ve been doing a lot of over the past month.)

Coronavirus Update 4-9-2020: CDC issues new guidelines for the return of essential workers to work after a coronavirus exposure

Last night, the Center for Disease Control issued new guidelines for when an essential employer should permit a critical infrastructure employee to return to work after a coronavirus exposure (defined as a household contact or having close contact within 6 feet of an individual with confirmed or suspected coronavirus for up to 48 hours before the individual became symptomatic).

The guidelines are a substantial departure from how I’ve been advising my clients for the past month.

Coronavirus Update 4-8-2020: Employers, if you are requiring your employees to wait in line for a coronavirus fever check, please pay them for waiting

Bloomberg Law asks whether employers are “responsible for paying workers for the time it takes to record their body temperatures before entering the workplace.” To me, this question doesn’t require a legal analysis but a common-sense application of basic decency. If your employees are queuing before entering work because you are requiring them to pass a temperature check, pay them … period.

Since this is a legal blog, however, I might as well look beyond common sense and examine the laws impacted by this issue—the ADA and the FLSA.

Coronavirus Update 4-7-2020 number 2: FFCRA loopholes (and another Zoominar)

Senator Patty Murray (D-Wash.) and Congresswoman Rosa DeLauro (D-Conn.) have sent a scathing letter to Secretary of Labor Eugene Scalia calling out the DOL for contradictions they see between the text of the Families First Coronavirus Response Act and the agency’s interpretive guidance.

Among the issues that they red-flagged:

Coronavirus Update 4-7-2020: What does OSHA have to say about coronavirus for employers?

OSHA, the federal agency responsible for health and safety, has been all over the coronavirus pandemic, providing a wealth of resources for employers. 

That said, OSHA does not have a specific standard addressing viral pandemics. Instead, it regulates this outbreak via its general duty clause: “Each employer shall furnish to each of [its] employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”

So what steps should employers take to furnish employees a workplace safe from coronavirus—a hazard that is causing or is likely to cause death or serious physical harm?

Coronavirus Update 4-6-2020 number 2: A 4th set of FAQs from the DOL on the FFCRA (and another Zoominar)

If you thought the DOL was done publishing FAQs on the paid sick leave and expanded family and medical leave provisions of the Families First Coronavirus Response Act with the publications of last week’s regulations, boy do I have a surprise for you.

Over the weekend, the DOL published its 4th set of FAQs discussing the FFCRA (nos. 60 - 79).

What has the DOL clarified in its latest set of FAQs?

Coronavirus Update 4-6-2020: We CARES about unemployment

The past two weeks have seen a record 10 million new unemployment claims. This number does not even include many of the millions more who have had their hours or wages cut as businesses continue to struggle with the realities of operating in a world turned upside down by coronavirus. Sadly, we should expect this situation to get a lot worse before it starts to get better.

Thankfully for each worker unemployed or underemployed as a result of coronavirus, the CARES Act provides significant financial relief. It contains the following seven unemployment expansion and enhancement provisions.

Coronavirus Update 4-3-2020: I killed the Easter Bunny

My family has been self-quarantined for the past three weeks. We did so before Ohio ordered people to stay at home, and before anyone started talking about social distancing and flattening the curve.

We chose to do this because our son is high-risk with a heart defect and asthma, and none of us wanted to get him sick.

We take our responsibility to halt the spread of this killer virus very seriously. We view it not only as a responsibility to ourselves not to become ill, but also to society as a whole not to spread it to others in the event we are silent or pre-symptomatic carriers. We know that one can transmit the virus for up to 14 days after exposure and before any symptoms appear; we’ve not been closer than six feet from anyone but the four of us living this house for weeks.

Coronavirus Update 4-2-2020: The DOL’s FFCRA regulations contain some BIG changes (and other Zoominar)

Yesterday afternoon, the Department of Labor published its long-awaited (as in, for the past two weeks) regulations to the paid family leave and paid sick leave provisions of the Families First Coronavirus Response Act. You can download them and read them for yourself (all 124 pages) here.

Much is unchanged from the Act itself and the three sets of FAQs (one, two, and three) the DOL published over the past week. 

There are, however, many key differences in how we have been interpreting the FFCRA since it became law.

I will discuss these regulations and field your questions on another Zoominar (this time, fingers crossed, free of Zoombombs), tomorrow, Friday, April 3, at 10 am ET. You can participate here: https://zoom.us/j/976011327

I’ve also summarized the key regulatory differences and highlights below.

Coronavirus Update 4-1-2020 number 2: DOL’s FFCRA regulations are out!

The Department of Labor's FFCRA regulations are out. And they are significant.

If you thought you understood this Act, you don't.

Among the key interpretations:

• Government stay at home and shelter in place orders qualify for leave.
• Intermittent leave is very limited.
• The scope of people for whom an employee can provide care and qualify for leave is narrow.
• An employee cannot take childcare related leave if someone else is available to care for their child(ren).

There is a lot more to digest, and I'll have a full summary of all of the key changes in the morning. For now, you can read all 124 pages of the regs here, or just wait for me (and the rest of the employment law bloggers) to publish our summaries.

Coronavirus Update 4-1-2020: The mechanics of the tax credit for paid family and sick leave under the FFCRA

One of the questions I have received the most since the passage of the Families First Coronavirus Response Act is how employers claim the tax credit available under the Act for paid leave provided to employees.

Late yesterday, the IRS published a detailed list of FAQs explaining all of the mechanics of this tax credit. I want to focus on the key employment law piece of these FAQ, how an employer should substantiate its eligibility for tax credits, i.e., the documentation you need to keep.

The IRS discusses this important issue in Questions 44 – 46. I’ll break it all down for you here.

Coronavirus Update 3-31-2020: Employers, PLEASE don’t take your employees’ stimulus checks (plus video of yesterday’s Zoominar)

One employer is an anomaly, two is a trend that must be stopped.

Last week, I nominated for the Worst Employer of 2020 an unnamed national restaurant chain that was reported to be stealing (the company called it “absorbing”) its employees’ CARES Act stimulus checks by reducing their scheduled hours in a pro-rata amount.

Now, another employer has been outed with similar plans.

Coronavirus Update 3-30-2020: DOL FAQs on the FFCRA, the threequel (and a Zoominar reminder) #coronavirus

A quick reminder that I’ll be live on Zoom today from 1 - 2 pm ET discussing all things Coronavirus, including the DOL’s most recent additions to its Families First Coronavirus Response Act FAQs (part 1 of which I covered here, and part 2 of which I’m covering below).

You can access the Zoominar here: https://zoom.us/j/856368874 (and don’t forget that Norah promised to join for a song at the end).

Now, onto the most recent development—the DOL’s weekend additions to its coronavirus paid family and sick leave FAQs (maybe its last before the law’s 4/1 effective date).

Here’s what the DOL has to say about some very important open issues.