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Coronavirus Leaves Employers With Many Unanswered Questions

by Byrne Anderson
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It wasn’t supposed to be this way. When Washington recommended a nearly nationwide shutdown back in March, we were told it would be just 15 days. It is now the end of 2020 and we are once again talking about new shutdowns in hopes of stopping the spread of the virus. Where does that leave America’s employers? With many unanswered questions.

Needless to say the coronavirus crisis isn’t just a medical issue. Every action we take to combat the virus affects business in ways we never fully anticipate. So heading into 2021, it would be nice if business owners had some inkling of what local, state, and federal agencies had planned.

Without some clarity, business owners do not know what to do. They have no idea whether or not their businesses will survive additional lockdowns. They have no idea if they will be facing layoffs or furloughs. Many businesses do not even know how they will come up with the money to keep the doors open and the lights on.

FFCRA Set to Expire

One of the more immediate problems employers face is the expiration of the Families First Coronavirus Response Act (FFCRA). Among other things, the act established rules by which employers were to provide paid leave to employees either sick with coronavirus or forced to stay home to care for family members. The Act expires at the end of 2020.

At the time of this writing, Congress was still working on a new coronavirus relief bill that may, or may not, contain provisions to extend the FFCRA. Without an extension, employers affected by the original legislation will no longer be required to offer paid leave related to coronavirus illnesses or care. Maybe some will voluntarily offer leave, but others probably won’t. There is always the risk that employers will plan to forgo their paid leave programs only to be told by Washington to resume them sometime in 2021.

BenefitMall, a Dallas-based general agency, published a post earlier in 2020 discussing the FFCRA and some modifications made to it as a result of a New York court ruling. The post suggested that Congress might extend the legislation if a second wave of coronavirus hit. We are now in the midst of that wave. Congress has yet to act.

Employee Coronavirus Testing

Another big issue for employers is coronavirus testing. Some employers, like those in the healthcare sector, are already testing workers as a matter of course. Those who test positive for the virus are being told to stay home for at least 14 days. But what about employers without testing policies in place? What do they do for 2021?

What so many seem to not know is that there are two types of coronavirus tests. The first test is designed to detect a current coronavirus infection. Employers are allowed to require the test under Equal Employment Opportunity Commission (EEOC) rules and related language in the Americans With Disabilities Act (ADA).

The second type of coronavirus test is designed to detect the presence of antibodies. A person who tests positive was exposed to the coronavirus at some point in the past and developed antibodies as a result. The test is not indicative of a current infection or a past infection that may have been contagious. This test cannot be forced on employees.

Employers still have unanswered questions about how to administer coronavirus tests and what to do if employees refuse to participate. Testing questions are near the top of the list of so many others still left unanswered. When will the answers come? Hopefully sooner rather than later.

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