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Understanding Return to Work Programs During Uncertain Times

The United States recently became the leading country in the world in confirmed cases of COVID-19. Although many cities across the country have shown positive trends of flattening the curve, there are still thousands of COVID-19 cases being forecasted at the time of this article. As most construction businesses continue to work through this pandemic, it’s safe to say that site managers should prepare for a spike in absences in the coming month. 

Along with adjusting company policies, reducing onsite staff to critical operations, and planning for potential absenteeism, construction employers should create a reporting process for employees that have potentially been infected. Many successful companies are going the extra mile and creating policies that allow workers to take paid or unpaid time off of work right now. Others are encouraging eligible employees to utilize leave through the Family and Medical Leave Act (FMLA). Regardless of the motive, the point is that more workers will be utilizing paid and unpaid leave within the next month or two.

This should lead most employers to consult their Houston construction attorney about the employees’ rights and the employers’ responsibilities regarding paid and unpaid leave. For example, when a worker returns from leave for a medical-related reason, should the employer ask for a doctor’s note to medically clear the worker? In this editorial, we will discuss this question and a few more. We will also inform you of the advice of public health officials on this topic. For assistance with all your employment law needs, including drafting medical leave policies and return to work programs, consult a Houston construction lawyer.

Related: COVID-19 Resources Section

Doctor’s Notes and Return to Work Programs

Private companies with 50 or more employees at one workplace are required to provide FMLA leave to eligible employees. As part of FMLA requirements, when an employee requests medical leave, an employer can require them to provide medical certification from a healthcare provider detailing the reason they require leave. An employee should provide a 30-day advanced notice of their request for leave (if they can) and the employer should approve or deny that leave shortly thereafter. Employers have the right to request their employee seek a second opinion or provide more information from a healthcare provider if their original request is insufficient. This certification process is performed to confirm that the employee has a “serious condition” that requires their need for leave. 

Related: Is Your Construction Business Required to Provide FMLA Leave?

Under the requirements of the Americans with Disabilities Act (ADA), employers have a legal right to require a note from eligible employees for FMLA leave. They also have the right to request employees returning to work provide a “fitness-for-duty” certification. This medical certification states that the employee is medically cleared to return to work and can perform the essential tasks of their position. Although employers generally have a right to request an employee provide medical certification and a fitness-for-duty certification, this topic is much more complicated if the employee is sick as a result of COVID-19.

Newly Expanded Family and Medical Leave Rights

As of April 1, 2020, employee rights for paid sick leave were expanded with the creation of the Families First Coronavirus Response Act (FFCRA). Employers of private companies with less than 500 associates are required to provide sick paid leave to any employee that requires time away from their position due to COVID-19-related reasons. In fact, employees are eligible to take up to two weeks (80 hours total) paid leave. Furthermore, any employee that has been with the company for 30 days or more can potentially be eligible for as much as 10 weeks of partially paid leave. 

Related: Learn More About FFCRA Qualified Wages and Eligibility Rights

The U.S. Department of Labor’s Wage and Hour Division (WHD) enforces both FMLA and FFCRA leave. Although the same agency regulates both forms of leave, the medical certification requirements for each type of leave vary greatly. Although employers generally have a legal right to request medical certification, both before and after an employee takes leave, in COVID-19-related cases, employees clearly cannot seek preapproval for their need to take leave. Moreover, in regard to requiring medical certification to return to work, this is an issue that should be addressed by a Houston construction lawyer

The answer to this question largely depends on the most recent state and local laws put into place. In many cases, these regulations are changing daily and are significantly different depending on your location. For example, in many cities, you can require a worker to provide medical certification to clear them to return to work, but in some cities, such as San Francisco, employers are prohibited from requiring medication certification for a COVID-19 related case.  

Public Health Organization Weigh In

Public health organizations like the Centers for Disease Control and Prevention (CDC) are encouraging employers to not request a note from employees for COVID-19-related symptoms. This is being recommended because it’s challenging for individuals to obtain a COVID-19 test in many areas and healthcare clinics around the country are currently overwhelmed. Moreover, many employees will not be able to obtain a note in a timely fashion. 

Public health officials encourage employers to have infected workers self-isolate at home and call a medical office to be accurately diagnosed. If a worker is sick, they will need to self-quarantine for 14 days unless their symptoms become more severe. After an employee recovers from their illness, if an employer wants some form of reassurance that the employee can return to work and is no longer contagious, they may be able to ask the employee to visit a local clinic to certify that they are healthy. However, before you take this step, consult our Houston construction lawyers, as these laws are rapidly changing and depend on where you are located. 

Related: COVID-19: Preventing Workplace Exposure  

When a Worker Returns

When a worker returns from FFCRA leave, the WHD states that “employers may not discharge, discipline, or otherwise discriminate against any employee who lawfully takes paid sick leave or expanded family and medical leave under the FFCRA.” This enforcement policy aligns with the requirements of an employee returning from FMLA leave. For either form of leave, if the worker experiences any form of adverse employment action stemming from their leave, they have the right to file a retaliation claim. 

WHD requires the worker return to the same position. If this isn’t feasible, the employee should be assigned a similarly-situated position. Moreover, it’s critical that the employee doesn’t experience any form of mistreatment because of their absence from work. This goes well beyond termination of employment. Employers should ensure that the employee is:

  • Returning to the same shift time and schedule that they had before their leave
  • Performing nearly identical work tasks 
  • Entrusted with the same level of responsibilities as before
  • Paid the same wage as before, including overtime pay, bonuses, and other benefits   

As the COVID-19 pandemic is a unique situation and federal, state, and local laws are rapidly changing, it’s best to seek answers to any employment law questions from a knowledgeable Houston contractor attorney. For company handbook review and employment law advice, consult a law firm dedicated to the construction industry. 

If you would like to speak with our Houston contractor attorneys, please contact us today.

Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.