Coronavirus update 4-22-2020: I was (mostly) correct on the intersection between employer-provided paid leave and leave under the FFCRA

Last week I took a stab at making sense of the messy and unclear rules surrounding the substitution of employer-provided leave (which, for the sake of simplicity, I’ll refer to as (“PTO”) for paid sick leave (“EPSL”) and expanded Family and Medical Leave (“EFMLA”) under the Families First Coronavirus Response Act.

I was (mostly) correct.

Yesterday, the Department of Labor published its 5th set of FAQs discussing the FFCRA. Question 86 squarely addresses and clarifies the intersection between employer-provided paid leave and leave under the FFCRA.

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.