Back to Work Interim Toolkit
[ Continued ]
Ver 1.3
August 6 , 2020
• The individual is unable to reach the place of employment because of a quarantine imposed as a direct result of the COVID-19 public health emergency ;
• The individual is unable to reach the place of employment because the individual has been advised by a health care provider to self-quarantine due to concerns related to COVID-19 ;
• Eligibility for benefits in accordance with the CARES Act generally does not apply to employees that express a generalized concern about potential exposure to COVID-19 if they return to work or who simply refuse to return to work when offered the opportunity . A US DOL document with FAQs pertaining to Pandemic Unemployment Assistance addresses these issues and can be found here .
[ Note : Please see questions 49 and 50 and the accompanying answers . Note that section 2102 ( a )( 3 )( A ) ( ii )( I ), which is cited in the answers , enumerates the eligibility reasons listed in the third paragraph of this document , as well as several others that are unlikely to be germane to the situation of an employee returning to a reopening dental practice .]
2 . What if my employee claims a “ protection ” that ’ s not in the list from the CARES Act ? Are there other valid reasons why they might not be required to return to work , or would only return under certain conditions ?
There are other potential exceptions that could affect an employee ’ s return to work . Some employees may reasonably be concerned because they are unusually susceptible to COVID-19 infection due to an underlying medical condition that qualifies as a disability under the Americans with Disabilities Act ( AwDA ). This could trigger reasonable accommodations obligations under the AwDA and the employer would be required to engage in an interactive dialogue with the employee about possible accommodations . Other employees may also claim anxiety or other mental health conditions which may also qualify as disabilities which make it more difficult for them to return to work . Still other employees may be concerned because they live with a family member who is in a high-risk category for developing complications if they were to test positive for COVID-19 . It is important for the employer to be able to explore the basis for the employees ’ concerns so that they can better assess the situation and address the specific concerns . Depending on the circumstances , an employee may be eligible for leave under the Family Medical Leave Act ( FMLA ), paid sick leave , or leave as an accommodation under the AwDA . Further , if two or more employees are raising concerns about COVID-19 related safety issues or return to work , there may be issues relating to the National Labor Relations Act that will need to be considered and addressed .
The attorneys working with PDA generally recommend that employers ask employees to document in writing the reasons they feel they are unable to return to work and individually assess whether there are any reasonable bases for legal protections . The employer may also be able to address any safety concerns raised by the employee by providing information about the types of steps the employer has taken to ensure that the workplace is reasonably safe under the circumstances . That could include such things as implementing testing / screening of employees and patients for symptoms of COVID-19 ; allowing non-clinical employees to work remotely , if appropriate ; implementing staggered work schedules to reduce the number of people in the office or commuting at the same time ; implementing changes to how patients check-in for appointments ; reducing work weeks ; restricting the work environment to promote social distancing where possible ; implementing new rules for common areas , including waiting areas for patients ; providing additional personal protective equipment ; implementing enhanced cleaning strategies , etc . Many of these preventative safety measures have already been mandated in Pennsylvania .
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