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Q&A: COVID Compliance Ogletree Deakins

Ina Young of Ogletree Deakins, answered some of the hospitality industry’s most vital COVID compliance questions.

In a recent webinar, our outside legal counsel, Ina Young of Ogletree Deakins, answered some of the hospitality industry’s most vital COVID compliance questions. If you’re one of the many struggling to understand if the evolving labor and employment mandates will impact your business or your team members – this post is for you.

With the help of our Director of HR, Kelly Roque, Ina covered topics from E-FMLA to ADA to WARN.

Here is the Q&A summary of the audience questions received during the webinar:

COVID TESTING

Q: Can we require COVID testing, and the results of the test before an employee can return to work?

A: Depending on the circumstances you can require COVID-19 testing if there is a business necessity. For example: the employee’s work requires them to come in close contact with other employees or the general public.

Q: If an employee tests positive for COVID-19 and recovers but another family member gets sick during this time, when the employee can return to work?

A: You may let the employee return to work if the employee meets all criteria as stated by the CDC website. If they are exposed to a family member that still has it, then the employee will have antibodies. At this time it is just unclear how long individuals will have antibodies after having contracted the virus. Unless the family member gets infected after an extensive amount of time has passed from when the employee was sick, I would not have concerns letting the employee return to work.

Q: If an employee who has previously exhibited symptoms is ready to return to work, can we ask them to sign a statement that says they have been fever free for 3 days, 10 days since onset of symptoms, etc? And when does that 10-day period begin?

A: Yes. but I would follow the new CDC criteria listed here. The 10 day period begins when the employee first experienced symptoms (not when those symptoms are reported to the employer).

Q: Should someone test positive (with or without symptoms), how do we handle the contact tracing in our restaurants to determine who is required to quarantine? Is there a rule of thumb for how to handle this?

A: Many establishments have run into this situation and have shut down their entire restaurant for two weeks after it became clear that an employee tested positive and had been working. If you are attempting too avoid shutting the restaurant down, you may question the employee who tested positive about who they came into contact with and determine who worked the same shifts to contact trace and ask those employees who came into close contact to get tested or self-isolate.

TRAVEL RESTRICTIONS

Q: Should we restrict employee travel/vacation, or ask for them to self-quarantine if they do travel?

A: I would recommend that you suspend all business-related travel to avoid any claims of disparate treatment and because the CDC has not issued any guidance on national travel. As for personal travel you cannot restrict it. However, you can implement a policy requiring all employees who traveled via airplane must perform a 14 day self-quarantine. You don’t likely have to pay EPSL in that situation so long as the employee does not seek a diagnosis by a healthcare provider who recommends self-isolation/is waiting for COVID-19 test results or is quarantining as a result of a state or local order that they self-quarantine. Practically, one of those scenarios is likely to occur. In that case you have to pay EPSL.

Q: What if an employee travels to a ‘hotspot’? Can employers require a negative test before returning to work? If so, does the employer have to pay them while they are waiting for the results of the test?

A: Yes, if travel is required by business needs you can require tests during the pandemic to avoid a direct threat to others. Practically, the employee will likely go to a healthcare provider to get tested and the healthcare provider will most likely ask the employee to self-quarantine until the test results come in. This would require EPSL payment.

Q: Do we need to compensate employees if they are required to self-quarantine after travelling for personal reasons?

A: The answer depends on the reason for the self-quarantine. If a health care provider recommends isolation or a state or local order requires it, then you need to pay them EPSL.

FMLA

Q: Is FMLA optional?

A: FMLA is not optional. E-FMLA is optional for employers with more than 500 employees.

Q: If an employee has had known contact with someone who has tested positive for COVID-19, and we request they get tested, should we pay them for the time they are off while they get the COVID-19 test and wait for the results? EX: a bartender visits her Mom one day. She comes into work the following day. Her mom also tested positive for COVID-19 that day. Should we require that the bartender gets tested so that she is not exposing all of our other employees?

A: If a healthcare provider recommends that the employee quratines him/herself then yes, you should pay the employee. If the employee does not go and see a healthcare provider then you likely do not have to pay them.

Q: Does the employee have to test positive in order to receive the new paid sick leave?

A: A positive test is not a prerequisite for EPSL. For example, it would be sufficient if the employee received a recommendation by a physician to self-quarantine due to concerns related to COVID-19. This provision is applicable when a healthcare provider (as defined by the FMLA) advises an employee to self-quarantine based on the belief that the employee has COVID-19, the employee may have COVID-19, or the employee is particularly vulnerable to COVID-19.

E-FMLA

Q: If you have under 50 employees, do you still need to comply with E-FMLA?

A: Correct, You will still have to comply with E-FMLA and EPSL unless your company meets one of the three criteria developed by the DOL. If you meet a criteria below then you likely do not have to give leave when an employee’s child care or school is cancelled. Criteria:

  1. Providing the leave “would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity”
  2. “The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities”
  3. There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.

Q: If I’m a seasonal employer and our workforce numbers vary by time of year, would this mean the E-FMLA and EPSL are optional since we file our W2 with roughly 1000 team members? Or during off-peak times are we considered a small employer?

A: Employers should count their employees when the employee’s leave is to be taken. This means if, at the time the employee needs leave, you have 500 or more employees, you likely do not have to
provide EPSL or E-FMLA. If an employee needs leave and at that time you have less than 500 employees you will have to pay it, even if subsequent to the start date your number of employees increases to over 500. This will not affect that employee’s right to continue on the leave.

Q: Can a FT employee receive E-FMLA due to school closure and also telework a few hours a week? And if school has moved to virtual, is it considered closed?

A: You may allow intermittent E-FMLA and pay the E-FMLA for those hours that the employee did not work. For the hours she does work, she will have to get paid wages for which you cannot claim a tax credit. The Department Of Labor has stated that a school, which is only offering virtual learning, is still closed for purposes of the FFCRA.

If you’d like more information on state-specific laws and regulations regarding COVID, please head over to our COVID resource guide.

To access the full recording of the COVID Compliance webinar with our guest, Ina F. Young, Attorney-at-Law at Ogletree Deakins click the link below. Kelly and Ina cover additional labor and employment mandates, along with recommendations on how to best approach each situation.

 

Disclaimer

The materials available at this web site are for general informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this site or any of the e-mail links contained within the site do not create an attorney-client relationship between Ogletree Deakins and you or any other user or browser. The opinions expressed at or through this site are the opinions of the individual presenter based on the limited information provided in the question and should not be acted upon without first seeking specific guidance from your attorney. Only your individual attorney can provide assurances that the information contained herein – and your interpretation of it – is applicable or appropriate to your particular situation. All liability with respect to actions taken or not taken based on the contents of this site are hereby expressly disclaimed.

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