This podcast is for HR Professionals, Business Owners, and CEOs who want to learn and discuss the tools, tactics, and strategies that help us create a happier, more productive employee workforce.
Can An Employee Who Claims to Have COVID-19 and Self-Quarantines But Refuses to Get Tested Still Be Paid?
If an employee becomes ill with COVID-19 symptoms, they may request for paid sick leave under the FFCRA only to seek a medical diagnosis, or self-quarantine only if advised to do so by a healthcare provider. If tested positive, the employee may continue to take paid sick leave. This does not apply for illnesses unrelated to COVID-19—though employers may allow them to telework at their discretion. You may not take paid sick leave under the FFCRA if you unilaterally decide to self-quarantine for an illness without medical advice, even if you have COVID-19 symptoms.
What Do I Do If An Employee Won’t Let Me Take Their Temperature?
Under the circumstances existing currently, the ADA has specifically allowed employers to bar an employee from physical presence in the workplace if he refuses to have his temperature taken, refuses to answer questions about whether he has COVID-19, has symptoms associated with COVID-19, or has been tested for COVID-19 and is positive.
If the employee claims under the ADA that they have a medical reason for refusing a temperature check, the employer can still bar them from entering the workplace. However, their reason should be documented and accommodation should be provided to the employee (i.e. work from home). If accommodations of any sort are not possible, then the employee will be on unpaid leave. They can also be fired if the role cannot stay unfilled.
Can I Ask An Employee if They Have Family Who Have COVID-19?
The simple answer is “no”. The Genetic Information Non-Discrimination Act (GINA) prohibits employers from asking employees medical questions about family members, and it is still in force. GINA does not prohibit employers from asking employees whether they’ve had contact with anyone who has been diagnosed with COVID-19 or may have symptoms associated with the disease. The CDC also recently issued guidance that explained, from a public health perspective, that only asking an employee about their contact with family members would unnecessarily limit the information obtained about the employee’s potential exposure to COVID-19. So, employers should not only ask about family but about everyone. In fact, they should remove the word “family” from their attestation. Asking this question shows due diligence, best practice, and care for other employees.
Big Changes in California Family Leave, 12 weeks leave!
A new bill in California was finalized that would expand the California Family Rights Act to make it an unlawful employment practice for employers with five or more employees to refuse to grant an employee’s request to take up to 12 workweeks of unpaid protected leave during any 12-month period to bond with the employee’s new child or care for themselves or a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner, as specified.
Under existing law, family and medical leave requirements extend only to the employee’s self, child, parent, or spouse. The employer coverage threshold is currently set at 50 or more employees. This has been expanded to include a grandparent, grandchild, sibling, spouse, or domestic partner. The bill also reduces the employer coverage threshold to five or more employees.
Under the bill, which applies also to employees of state and local political subdivisions and cities, an employer that employs both parents of a child would be required to grant leave to each employee. Currently, the employer is only required in those circumstances to grant both employees a total of 12 workweeks of unpaid protected leave during the 12-month period.
How Can Employers Avoid Putting Employees At Risk of Getting Sick with COVID-19
Referring to a case involving Cal/OSHA and frozen foods manufacturer Overhill Farms Inc. and its temporary employment agency Jobsource North America Inc., employers failed to protect hundreds of employees from COVID-19 at two plants in Vernon. This was due to the lack of physical distancing procedures among workers including where they clock in and out of their shift, at the cart where they put on gloves and coats, in the break room, on the conveyor line, and during packing operations. Each employer accrued over $200,000 in proposed penalties.
The employers did not take any steps to install barriers or implement procedures to have employees work at least six feet away from each other and they did not investigate any of their employees’ COVID-19 infections, including more than 20 illnesses and, in the case of Overhill Farms, one death.
Other violations that put workers at risk of exposure to COVID-19 include the failure by both employers to train employees on the hazards presented by the virus and failure to investigate any of the more than 20 COVID-19 illnesses and one death Cal/OSHA uncovered amongst their employees. The employers did not adequately communicate the COVID-19 hazards to their workforce, and Overhill did not report a COVID-19 fatality to Cal/OSHA.
Illnesses must be investigated and additional protective measures implemented. Serious illnesses and deaths must be reported to Cal/OSHA. Employers should also notify workers of possible exposure and report outbreaks to county public health officials.
Which Employees Are Exempt from Minimum Wage and Overtime Requirements?
Under the FLSA, employees are entitled to be paid a minimum wage for each hour worked and to be paid one-and-a-half times their regular rate of pay for each hour in excess of 40 hours worked in a workweek (some states have slightly different regulations).
Certain employees are exempt from these requirements, including employees who are employed in a bona fide executive, administrative, or professional capacity, as well as outside salespeople.
A three-part test was created in order to define who are exempt professionals:
The salary basis test determines that the employee must be compensated on a salary or fee basis.
The salary level test determines that the salary paid must meet a specific minimum amount.
The duties test determines that the employee’s primary duty must be to perform work that requires either knowledge of an advanced type in a field of science of learning, customarily acquired by a prolonged course of specialized intellectual instruction; or invention, imagination, or talent in a recognized field of artistic or creative endeavor.
An alternative to this three-part test for this particular exemption is the “highly compensated employee test”, which eliminates the need for a detailed analysis of the employee’s job duties. Under this test, the employee qualifies as exempt if they customarily and regularly perform at least one of the exempt executive, administrative, professional, learned, or creative duties, and receives total compensation of at least $107,432 a year. The total compensation must include at least $684 per week, paid on a salary or fee basis as well.
The FLSA exemptions are just as much part of the FLSA’s purpose as the minimum wage and overtime pay requirements, and therefore must receive a fair (rather than narrow) interpretation. The Wage and Hour Division, therefore, interprets the act neither expansively nor narrowly, but instead according to conventional canons of statutory interpretation.
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