The Next COVID Crisis: Claims, Lawsuits and Lessons We Can Learn Now

If you as an employer are using WFH, and an employee has strictly worked from home since March, is this a defense on a Workers’ Compensation claim?
Yes. Unless the employee is traveling to see clients, or they can otherwise show they contracted COVID-19 due to work for the employer, it is unlikely they can recover benefits.

Will the carrier be doing an assessment on where the employee contracted COVID-19?
Yes. The adjuster will do a complete investigation.

What if an employee is working remotely providing telehealth services, and then calls the employer and states that they sustained a non-COVID-19 injury while providing a telehealth session?
If the injury occurred while the employee was working with an individual patient or otherwise performing work for the employer, it will likely be considered work related.

If an employee has COVID-19 but works at home (by the employee’s choice), do we have any liability? It is acceptable to have an employee work when they feel up for it quarantined from home and supplement their hours with the emergency pay? 
Questions regarding work from home liability in an employment law setting generally trigger discussions around the ADA, FMLA, and other ongoing employee relations obligations. All of the laws and rules that apply to the employment relationship in the office apply in a work-from-home setting. Employers should be sure that employees adhere to the standards of conduct, do not engage in harassment, discrimination and/or retaliation, and account for all hours worked (non-exempt employees). 

Likewise, employers must be sure that they address rights under the various federal and state employment laws. In order to be eligible to receive FFCRA benefits (Emergency Paid Sick Leave or Emergency FMLA), the employee has to certify that they are unable to work or telework due to a FFCRA qualifying reason. Therefore, an employee who self-quarantines without specific direction by a health care provider or other governing agency would not be eligible for FFCRA pay. Furthermore, the question asks whether the employee’s pay (from working) may be supplemented with FFCRA, which presumably infers that the employee seeks to take FFCRA intermittently. 

FFCRA may be taken intermittently only if/when an employee is unable to work/telework because they need to care for their child due to the child’s school, camp, or other childcare providing facility is closed due to COVID-19. In other words, FFCRA may not be taken intermittently for the other FFCRA qualifying reasons. Additionally, FFCRA may be taken intermittently only if the employer and employee agree to the schedule.

What if an employee presents a fraudulent medical certification, or an employee who you believe is claiming to be exposed in order to get paid time off while waiting for results?
HUB will work with its clients to report potential fraud to the carrier and to oppose the claim if it’s based on false documents or fraud.

Would one assume that it will be more difficult to illustrate for a WC claim that the team member got it at work if they are a grocery store worker? How might we be able to combat this?
The employee may need to show he contracted COVID-19 at work; that the risk of COVID-19 on their particular job was greater than the risk to the general public; and/or that they did not contract COVID-19 outside of work, depending on the state WC law. Your best defense is showing you took the recommended precautions to avoid COVID-19.

Our business has been open throughout the pandemic providing services to people with Intellectual & Developmental Disabilities. We have 35 private homes in our community these people live in. We have had COVID-19 in our homes, and our staff have tested positive. The people we support have been on lock down, and all of them were tested. They tested negative, but became positive as a result of the staff coming in the home. Can the staff claim they got it from another employee in the home hence we have a claim? This has been quite difficult and continues. 
If an employee can establish they contracted COVID-19 while working at one of the private residences, by showing others had it or they were in physical contact with patient who had it they may have a WC claim. Some states make it easier for healthcare workers to establish that they contracted the virus in the scope of their employment.

How and why would we file claims regarding COVID-19? What reasons would an employee want us to file a claim? How can claims be justified? 
HUB recommends that clients document and report all claims to their carrier. The justification is established by existing state workers’ compensation laws, which may vary from state-to-state, but may require the employee to provide evidence that there was an excessive risk of contracting COVID-19 due to the nature of the job and that the employee actually contracted the virus due to exposure at work. A few states make it easier for health care workers and first responders to prove their case pursuant to emergency orders relating to COVID-19. 

Any input on the requirement of masks in the office?
The DOL has an FAQ that is helpful.

The requirement to wear a mask may be mandated by local/state law. Employers that choose to create a mandate requiring masks/face coverings in the workplace must be sure that they enforce this rule consistently, but also be sure to address any accommodations that may be necessary under both the ADA and the Religious Discrimination Act.

Do employers have to let you know if an employee was in contact with someone who had COVID-19? They did get tested and the test came back negative, but what is standard for letting office occupants know?
The employer will have to set the expectations and should include exposure questions in the employee daily screening; the CDC recommends that employers ask employee symptom and exposure questions each day. Employers should inform (at least) anyone who has been in "close contact" (within 6 feet and for 15 minutes or longer) that they have been exposed to an individual who has tested positive for COVID-19 (remember ADA confidentiality: you cannot release the diagnosed employee's identity).

Can an employer ask employees to sign a waiver, notifying employees of the risk of COVID-19 in the office?
Please check with outside counsel. Waivers are governed by state law, and there are a variety of schools of thought regarding use of waivers.

Is it true FFCRA only applies to employers with less than 500 employees and more than 50 employees?
No, FFCRA applies to all private employers with fewer than 50 employees, meaning employers with fewer than 50 employees are also subject to FFCRA. Small businesses—defined as employers with fewer than 50 employees—may be exempt from Emergency Paid Sick Leave and/or Emergency FMLA under very strict circumstances. First, the exemption from EPSL/EFMLA applies only when the leave is requested because the employee's child's school, place of care, or childcare provider is closed/unavailable due to COVID-19 (meaning small businesses are still subject to the other Emergency Paid Sick Leave qualifying reasons). Second, the small business has to demonstrate that providing such a leave would jeopardize the viability of the business. 

To demonstrate this, an authorized officer of the business has to determine that either:

a) providing EPSL/EFMLA would result in the business's expenses and financial obligations exceeding available business revenues and will cause the small business to cease operating at a minimal capacity;

b) the absence of the employee(s) requesting EPSL/EFMLA would create a substantial risk to the financial health or operations of the business because of the employee(s)' specialized skills, knowledge or responsibilities; or

c) there are insufficient workers who are able, willing and qualified to perform the labor/services that are needed to operate the business at a minimal capacity.

As you mentioned the burden of proof is on the employer. How much responsibility does the office building's property management also have in the claim? 
Please check with local counsel regarding the exposure and liability for the landlord/property owner. 

Are employers only responsible for 80 hours regardless of why the employee is absent due to COVID-19?
Emergency Paid Sick Leave (EPSL) under FFCRA provides employees up to a combined total of 80 hours (10 days) of paid leave for one of six qualifying reasons. These 80 hours are prorated for part time employees. Employees are eligible for EPSL if they are unable to work or telework due to:

(1) the employee is quarantined or isolated by Federal, State or local order;

(2) the employee is advised by a health care professional to self-quarantine due to concerns related to COVID-19;

(3) the employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;

(4) the employee is caring for an individual subject to quarantine/isolation be Federal, state or local order or by direction of a health care provider;

(5) the employee is caring for a child because the child's school or childcare facility/provider is closed due to COVID-19; or

(6) the employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of Treasury and Secretary of Labor.  Therefore, if the employee is seeking leave for any other reason besides the six noted here, the employee is not entitled to the Emergency Paid Sick Leave provided under FFCRA.

Is the 80 hours expected on top of the 80 hours we already provide on an annual basis? If so, do they get to use those 80 hours from the government first? Would we be expected to roll over the additionally allocated hours from the government? We currently roll hours from the prior year to an employee "bank" for FMLA/COVID-19 leave.  
Emergency Paid Sick Leave (EPSL) under FFCRA is provided in addition to any other paid leave provided under Federal, State or local law; an applicable collective bargaining agreement; or any company policy that provides paid time off to its employees. Therefore, if an employee is experiencing an EPSL-qualifying event, the employee is entitled to EPSL without it discriminating any other paid time off they may be entitled to. If the employee exhausts their 80 hours (10 days) of EPSL and continues to experience an EPSL-qualifying event, then an employee may use their company paid time off. FFCRA is currently scheduled to sunset on December 31, 2020; therefore, any remaining EPSL time that may exist at year's end is not expected to roll over into 2021. However, it is unclear whether this will change as the pandemic continues to evolve.

What is the best way to keep up with hours worked while hourly clerical employees are working from home?
The process of capturing and tracking hours worked by non-exempt employees really varies by employer and is highly dependent on the demographics and technology in the organization. HUB clients may speak with our technology consulting practice to explore various time-keeping options and systems.

If an employer requires an employee to travel for work, do they then have to pay for them to stay home and quarantine?  
Yes, they do.

Now that child care centers are opening up in many areas of the country, can employers request employees to return to regular hours without having legal issues? As the FFCRA only mandates eligible employees who are unable to work (or telework) due to a need to care for their child when the school or place of care has been closed, or the regular childcare provider is unavailable may receive sick or FMLA pay.
If the employee's child care facility re-opens, then the employee presumably no longer has the inability to work or telework. In other words, the employee would be expected to return to work at their normal capacity.

Of note, the DOL clarified that a child care facility is considered "closed" for purposes of Emergency Paid Sick Leave and Emergency FMLA if the brick and mortar facility remains closed. Specifically, the DOL addressed schools that have moved to online instruction or other virtual model(s); while school may be in session virtually, if the school is physically closed, then the child's school is considered closed for purposes of EPSL/EFMLA, and an employee may be eligible for EPSL/EFMLA benefits.

I work for a Tribal entity and would like to know what is happening in Indian Country and how tribal entities could provide the best practices, policies and procedures, etc.
Indian Country is one of the most greatly impacted segments of the population, and therefore are encouraged to follow the guidelines developed by the CDC and OSHA to develop policies and procedures that address the needs of tribal members and employees in their commercial enterprises as they return safely to work. Tribal plans are also encouraged to maximize the use of their clinics (when applicable), to address the healthcare needs of their tribal members, and ensure their group health plans are amended to include access to COVID-19 testing and screening as required under the CARES Act.