What employers and employees need to know about leave policies before reopening

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Employers could find themselves deep in litigation for refusing to let some employees stay home once coronavirus shelter-in-place orders are lifted.

That was a key takeaway of a webinar conducted by legal and disability experts from MetLife. The presentation, hosted by the Disability Management Employer Coalition, explored how existing disability laws and the recently passed Families First Coronavirus Response Act will apply once offices are allowed to reopen, and why employers need to handle these issues carefully.

“The best thing [employers] can do is act in good faith at all times,” said Peter Fabiankovic, corporate counsel for MetLife. “They also need to pay attention to new legislation and consult their attorneys to ensure they’re in compliance.”

According to a recent survey by Gallup, three out of five employees say they prefer working remotely. But states like Georgia and Maine have already started reopening business, and many employers are looking at how to adapt their workplace to increase safety measures in light of the pandemic.

For employees who are caregivers for children or other vulnerable adults, or those who have underlying conditions that make them vulnerable to coronavirus, looking at various legal protections offered through the federal government can provide options for working remotely.

Some employees may qualify for extended time to work remotely under the Americans with Disabilities Act — which protects employment from disability discrimination. But Fabiankovic said employees can only request to work from home under the ADA if they have a preexisting condition or impairment covered by the law.

If employees are able to perform their jobs satisfactorily while working from home, it might be worthwhile for management to consider allowing them to do so, Fabiankovic said.

“This is one of those situations where it makes sense for reasonable accommodations to take place,” he said. “Expressing good-faith in your employees will definitely help avoid costly litigation altogether.”

Employees who can’t work from home may need to take advantage of leave policies, or use PTO, the speakers said. While the Family and Medical Leave Act guarantees workers job-protected, unpaid leave to deal with a family or medical emergency, that’s little consolation to someone living paycheck to paycheck. In response, Congress passed the Families First Coronavirus Response Act in March, which provides employees affected by coronavirus with 14 days of paid leave. The act covers employees in various situations like being sick with COVID-19 or needing to step in to take care of a child or vulnerable adult family member.

But while offices may begin to reopen, employees may still have caregiving responsibilities that would not be covered under these acts, experts said.

“As daycares continue to open and we get into what would normally be summer vacation, employees would not qualify for leave to take care of children,” said Dan Iskra, MetLife’s assistant vice president of group disability and absence, product development and management. “They would be expected to make arrangements for childcare, just as they would for normal summer vacations.”

In the case where an employee needs to care for an adult or has underlying conditions that make them vulnerable to coronavirus, Iskra said they need to obtain documentation from a certified medical professional in order to prove it to their employer. Employees who are otherwise healthy, but don’t want to return to the office for fear of being exposed to COVID-19 aren’t eligible for the new paid leave laws.

“Fear in and of itself does not qualify for the FFCRA,” Iskra said. “But that being said, if the employee is advised by medical staff to self-quarantine because of an underlying condition, that would qualify under the emergency paid sick leave act (in the FFCRA).”

It’s uncertain when everyone will be allowed to return to the office, but Fabiankovic and Iskra recognized that employees might not feel comfortable if that time comes sooner, rather than later. They cautioned that employers may want to exercise some compassion in the interest of retaining their workforce.

“It’s a team effort to get everyone on the same page,” Fabiankovic said. “[Employers] do have rights, but it’s worth considering your options to come up with the best solution for everyone.”

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