Ask Me MD: Medical School for the real world

Leiza Dolghih, JD - Employment Law During COVID-19

August 21, 2020 D.J. Verret, MD, FACS Season 1 Episode 3
Ask Me MD: Medical School for the real world
Leiza Dolghih, JD - Employment Law During COVID-19
Chapters
Ask Me MD: Medical School for the real world
Leiza Dolghih, JD - Employment Law During COVID-19
Aug 21, 2020 Season 1 Episode 3
D.J. Verret, MD, FACS

Leiza Dolghih, a board certified labor and employment lawyer, joins Dr. Verret to discuss employment issues during the time of COVID-19. Topics covered include what to do for sick employees, new laws and regulations pertaining to COVID-19 in the employment realm, and ideas to mitigate your exposure to employment claims. For more information, visit Leiza at https://lewisbrisbois.com/attorneys/dolghih-elisaveta.

If you have questions or ideas for a show, send us an email at questions@askmemdpodcast.com. Hear the latest podcast at http://askmemdpodcast.com or through your favorite podcast directory.

As a reminder, the podcast is informational only and does constitute an attorney-client relationship. Be sure to discuss any changes with your own attorney.

Show Notes Transcript

Leiza Dolghih, a board certified labor and employment lawyer, joins Dr. Verret to discuss employment issues during the time of COVID-19. Topics covered include what to do for sick employees, new laws and regulations pertaining to COVID-19 in the employment realm, and ideas to mitigate your exposure to employment claims. For more information, visit Leiza at https://lewisbrisbois.com/attorneys/dolghih-elisaveta.

If you have questions or ideas for a show, send us an email at questions@askmemdpodcast.com. Hear the latest podcast at http://askmemdpodcast.com or through your favorite podcast directory.

As a reminder, the podcast is informational only and does constitute an attorney-client relationship. Be sure to discuss any changes with your own attorney.

Announcer :

Ask Me MD, medical school for the real world with the MD Dr. D.J. Verret.

D.J. Verret, MD, FACS :

Greetings and welcome to another edition of Ask Me MD, medical school for the real world. I'm Dr. D.J. Verret and today I'm joined by Leiza Dolghih, who's a Board Certified labor and employment lawyer in Dallas. As a brief reminder, today's episode is for educational purposes only, and does not constitute an attorney client relationship. All of the information provided is rapidly changing, and you should consult your own attorney before taking any actions. Lisa will join us right after this quick break to talk about COVID employment law. Welcome back to Ask Me MD, medical school for the real world. I'm Dr. D.J. Verret. And today we're joined by Leiza Dolghih of the law firm Lewis and Bruce Boyce. Leiza is going to talk with us about employment concerns during the time of COVID. Leiza, thanks for coming on the show.

Leiza Dolghih, JD :

Sure. Thanks for having me.

D.J. Verret, MD, FACS :

So I mean, as I kind of disclaimed, obviously, the rules are ever changing. But let's take a look at kind of what they are today. And I think as an employer, my biggest question for you would be if I have an employee with symptoms of COVID-19, what should I do?

Leiza Dolghih, JD :

Of course, I think that's that's the first question that everyone has to deal with. You know, first of all, by this point in time, all the employers should have a policy, letting employees know what happens if they have symptoms, or if they come into work with symptoms, if you don't have that policy, as an employer, really need to create one that that makes it very clear to employees what happens. But absolutely, if an employee comes into work with symptoms, or they're calling in, and they're saying that they have symptoms, or they think they have caught COVID-19, you should send them home and follow isolation guidelines provided by the Center for Disease Control CDC, which are published on their website. They're constantly changing. Actually, on August 10, CDC just updated their guidance for healthcare workers. And they describe what you know, situation when the employer should just make a determination based on where the employee has symptoms. And in other situations, the employer should ask an employee to have tests conducted within a certain period of time to make sure that they get to negative tests before they can come back to work. And and so, you know, there are options here. And CDC says that you really should be kind of taken into consideration as an employer, local firms. So they're kind of giving the guidance to employers, but depending on how prevalent COVID-19 is in a particular area, the employer really should exercise common sense in deciding how they want to proceed.

D.J. Verret, MD, FACS :

And you mentioned it as part of the answer. But I just want to clarify, can I actually require an employee to stay at home?

Leiza Dolghih, JD :

Yes, not only can you require, but as an employer, you should require an employee to stay at home if they have symptoms, or if they've tested positive. So that's absolutely for the for the protection of your other employees. You absolutely shoot and can do that legally, and leases. So if I require an employee to stay home, do I have to pay them at that point? So did you the answer is it depends? It depends on a couple of things. One is whether the employer wants to pay the employee under the FCRA. And secondly, depends on what the policy is that the employer has just a regular paid sick leave policy. So under the current statute, the way it's written, there is an exemption for healthcare personnel. So while most of the workers in us are entitled to 80 hours of paid sick leave, related to Coronavirus healthcare employees are exempt. So an employer can decide whether they want to pay them if they're, you know, out on sick leave due to Coronavirus or whether they don't want to pay them. And the definition of health care workers is pretty it's pretty broad. So the Department of Labor came out with a definition and includes employees includes basically healthcare providers or anyone who are employed at any doctor's office Hospital Health Care Center clinic In a number of similar facilities, so it includes pretty much anyone that you would think would qualify as a healthcare worker. There have been some challenges to that definition, because it's not written in the statute. It's just a guidance from the Department of Labor. The New York Attorney General filed a lawsuit trying to make that definition less expensive. But right now, it covers a lot of employees. So the employers really should decide do we want to go ahead and pay our employees under the ffcra and get the tax credit? Or do we want to only pay them in certain situations like for example, if they personally have Coronavirus, but we don't want to pay them if they for example, leave, take leave to care for a family member that has Coronavirus. So, whatever policy they employers come up with, they really should just make sure that they consistently follow it, and that the employees are aware of what the policy is. And then concurrently with that, you of course, have the regular FMLA and paid sick leave policies that employers have. So they should look at that as well. And see if an employee has accrued paid sick leave, obviously, an employer would be required to pay them.

D.J. Verret, MD, FACS :

And the FMLA, though, only applies to larger entities, is that correct?

Leiza Dolghih, JD :

Right 50 or more employees. So if you're, even if a company or medical practice has less than 50 employees, then FMLA would not apply. But still even smaller employers still have eight sick leave policies. And so you definitely want to make sure that that you comply with your own policy.

D.J. Verret, MD, FACS :

So it sounds like that question has a little bit of nuance, depending on size of the entity policies, and maybe job descriptions. Is that fair?

Leiza Dolghih, JD :

Yes, it is fair. And so and you know, there are a lot of questions, DJ that come up with employees, trying to gain the system, right? employees maybe possibly going trying to get COVID-19, intentionally, which is not more, but just so that they could get leave that we've we've seen instances of that happening. We've seen employees being careless, posting on social media, that they're going to clubs and restaurants and of course, that infuriates the employer, because that that puts them well, that puts other employees in danger. And so sometimes an employer is mad at the employee for for getting COVID-19 because they suspect that that was done intentionally. And in those situations, you kind of got to put the feelings away and then realize that restriction, so what you can do with with that employee, and even if they got infected intentionally or just recklessly, you still can't have that knee jerk reaction of firing them. Because if you're under subject to the FMLA statute, you would be liable for that sort of termination.

D.J. Verret, MD, FACS :

Now, you know, in kind of a broader sense, obviously, policies and procedures are important at any time. But are there any special policies employment policies that should an employer should develop during the time of COVID-19?

Leiza Dolghih, JD :

Oh, absolutely. develop them and also communicate them to the employees, I think, number one policy should be all about the safety. So take stock of you know, how your office or your medical practices set up what the employees are doing, and then come up with the rules that that incorporate the CDC guidelines. And that should all be in writing, and it should be shared and reminded to the employees that they're required to wear masks, that they're required to wear PP, that they're required to social distance, that they're required, you know, to use hand sanitizer, and I know, in the healthcare world, you know, employees are used to kind of more stricter cleanliness standards than I guess, a regular office space. But it still should be emphasized. You also should tell employees if you're going to be checking their temperature when they come into work. If you have receptionists or people that are dealing with patients have Procedures and Standards set up for them as far as interacting with with patients when they come in the office, if you have a patient facing procedures, such as you have to call him before you come in. And then we'll let you into the into the facility. You have to let your your own employees know that those procedures have been set up. So it's just about communication. So much of it is about just communicating to the employees that here's what we decided the rules are going to be and you know, having them sign an acknowledgement form, saying we agree we understand the rules, and we agree to abide by them. So that's one of the rules another A new rule related or policy related to COVID-19 is, is OSHA, the Occupational Health and Safety Administration has issued a requirement that if an employer finds out that there is an employee that possibly got infected with COVID-19 in the workplace, then they have to report that to OSHA. So, you know, how do you determine if somebody got infected in the workplace versus, you know, at a restaurant or somewhere else where they went the day before? Well, you can't with certainty. But so what OSHA says is that you have to undertake a reasonable investigation, and based on the objective evidence available, if you think that the employee possibly probably got infected at work, you have to report it to OSHA.

D.J. Verret, MD, FACS :

Now, when you talk about the policies and procedures, you were mentioning, looking at some of the national guidelines, for example, the CDC guidelines. So that also tells me that these policies and procedures probably need to be updated more than yearly that you might think of with other policies and procedures.

Leiza Dolghih, JD :

Oh, you're absolutely right. I mean, since this whole thing started and back in March, I mean, the guidances have changed so much. From from all government agencies, the Department of Labor, CDC, OSHA, they're constantly updating and tweaking their rules. So yes, you should be really checking it weekly. The websites to see if or if you have some sort of a update service on the new changes, you make sure you read that weekly, that that, that's how often I would recommend checking to see if something has changed.

D.J. Verret, MD, FACS :

You mentioned the new requirements from OSHA for investigating occupational exposure for COVID-19. Kind of on that front. How, what are my obligations in informing my employees, if another employee develops COVID-19?

Leiza Dolghih, JD :

Well, you should really, as an employer, err on the side of transparency. So when you have an employee that contracted COVID-19, you should inform other employees of a confirmed case in the workplace. You don't have to tell the employees who the infected employee is. In fact, if you do that, you might be violating HIPAA, but you should notify coworkers of a a confirm. There's no law on this yet. But some of the guidance that OSHA has issued in this area, in some of the existing laws in this area, suggests that OSHA may ultimately determined that a failure to notify employees have a confirmed COVID-19 case is a violation of OSHA's general duty clause, which is you know, that an employer must maintain a safe work environment. And I will tell you, just from the personal experiences dealing with the situation, see, there's employees often feel betrayed when they find out that there's been a case, a confirmed case with one of the co workers and they didn't know that that happened, because a lot of them immediately feel like well, maybe I would have had options, maybe I would have not come into work, maybe I would have taken my PTO just not to be in the office, right after this person got affected, and I wasn't given that chance. So just for employee morale, you really that information gets out. DJ employees communicate with each other and their social media, people will find out that somebody got infected, and they'll feel they'll feel angry at the employer. If that information hasn't been shared.

D.J. Verret, MD, FACS :

We, we and one of the earlier questions you were talking about taking temperatures, and I know it's physicians were particularly sensitive to HIPAA violations. What concerns should I have about taking temperatures or asking questions related to symptoms of employees as an employer, not necessarily as their treating physician?

Leiza Dolghih, JD :

Well, sure, so I you know, taking the temperature is an approved exception right now, so employers are allowed to take temperature. The question is, you know, what kind of records Do you keep around that? We recommend that a lawyer who checks temperature doesn't keep those records. In other words, check somebody's temperature in the morning, you have a long you check off that they passed the temperature test, but you don't actually Write down the template. And the reason for that is because that does create potential privacy violations down the road. So this is a compromise at this stage between, you know, making sure that everyone at work is safe and having a process that you can later show that you, you know, did certain things to keep the employees safe at work, but also not violating privacy, privacy regulations. So, to give you an example, the American with Disabilities Act requires storing separately all medical information about an employee from the employee's personnel file. And employer may store all medical information related to COVID-19 in existing medical files, including their statement that he or she has a you know, disease or suspect that they have a disease, or the employers notes about an employee's symptoms. But if you ask about symptoms theory requires retaining the information as a confidential medical record. So don't collect what you don't need. When you do collect about symptoms, make sure it's in a separate personnel file and not in the in it's in a separate medical file, not a personnel file.

D.J. Verret, MD, FACS :

Do I have some kind of employment liability concerns seeing patients that might have COVID-19. In other words, my receptionist claim she got COVID from a patient. Obviously, as physicians, our primary care folks are going to be seen sick people that likely will end up with COVID-19. With a large number of asymptomatic patients, it's likely just from even as a subspecialist, I'm going to end up seeing a patient that ultimately will turn out with COVID-19. What kind of employment liability concerns do I have do I have in that realm?

Leiza Dolghih, JD :

You will never be able to eliminate a potential claim from an employee in the this particular scenario that you just gave me saying, well, I got this infection at work from from seeing a patient. But what you can do is have procedures that reduce the chances of that happening. So that when there is a dispute over whether somebody got it from a patient who guarded somewhere else, the likelihood that they got it from somewhere else is much higher. So have, you know, pp have social distancing, definitely tell the employees not to come into work if they're safe. Implement procedures for preventing sick employees from entering the workplace, you obviously can't prevent patients from coming to see you, you can't force patients to tell you that they have symptoms, and a lot of them are not going to know they have symptoms. But what you can do is protect your employees and have all the recommended PP and social distancing in cleaning, you know, measures out work that reduce the chances of them getting getting the disease at work, you know, talk to the employees, if they're isolated, you know, they're quarantined, maintain that communication. So that they feel connected to the workplace, they're less likely to bring a claim against their employer, if they feel like the employer is actually caring about them when they're sick, or potentially sick. You know, we've gotten a lot of questions from the employer saying, Well, what if I make my staff sign a waiver of liability, right saying that if you come to work, you agree that even if you get sick at work, you're not going to sue us? Sounds like a great idea. In theory, it doesn't actually work. Because one is they do get sick at work. And they're able to show that they you know, that they could track the diseases or that would be a workers compensation claim and don't fall under that umbrella. And an employee cannot you cannot require or offer employee to waive their workers compensation claims. The waivers also don't help you as an employer, if you're grossly negligent, or it's an intentional tort. So let's say if you have no measures at work, you haven't given peepee you haven't, you know, engaged in extra cleaning. You haven't really observed social distancing guidelines, you're just doing business the way you were doing it before the pandemic, well, that arguably could be grossly negligent. And so even if you had all of your employees signed waivers, those waivers would not be worth the paper they're written on. And, you know, that brings me back to what I mentioned before. Your best protection as an employer from from liability claims from employees is having all those measures in place but also having an acknowledged more informed that they sign saying, I've read the policies, I understand what I can and cannot do what I should do at work, when I should isolate and have that in their personnel file. And so that if you know they violated that policy, they have a lesser chance of putting the blame on you as the employer.

D.J. Verret, MD, FACS :

With the with the what we've talked about what the policy is changing, being extremely fluid, would you then have to have the employees sign the Acknowledgement Form every single time? Or can you get a blanket acknowledgement on the front end? Or how should How should we look at handling that situation?

Leiza Dolghih, JD :

You should.. Well, it doesn't have to be a written signature, you know, you don't have to print out a form and have everyone sign it. It can be done via email. If But, yes, I would recommend that every time something changes a major change, right? That that an email goes out to the employees saying, you know, bringing their attention that the policy has been up. And they have to respond with Okay, or agree or I understand. So give them a specific directive. And then of course, make sure that if somebody doesn't respond to that email that you follow up with them, and get that acknowledgement that way, that should be sufficient. But yes, I would recommend anytime there is a major change, you need to notify the employees at age and you need to get an A new acknowledgement from them that they understand that it has.

D.J. Verret, MD, FACS :

You mentioned that OSHA has come up with some new guidelines during COVID. Are there any new employment regulations that have been enacted specifically for COVID-19? Either state of Texas or on a federal level?

Leiza Dolghih, JD :

You talking about unemployment?

D.J. Verret, MD, FACS :

I'm sorry, unemployment, correct.

Leiza Dolghih, JD :

Yeah, absolutely. So you know, everyone is aware by this point in time of the cares Act, which provides for economic impact payments to American households, of up to 1200 dollars per adult, for individuals whose income was less than 99,000. Or it's 198,000. If it's a joint filing, for a married couple, it you also get a $500 payment per child who's under 17 years old, or, or you get up to $3,400 for a family of four. So that that's been very helpful to a lot of employees. all they had to do is apply for those payments. In terms of unemployment laws in Texas, we don't have any employment laws that are new unemployment laws that are new. But the Texas Workforce Commission, which is in charge of doling out the unemployment payments, has waived certain requirements. So they waived work search requirements for all the claimants in the waiting week for those claimants that are affected by COVID-19. So the wave waiving work search requirements means that the employee no longer has to prove that they engaged in at least three word search activities. So prior to this waiver, an employee would have to show that they are looking for a job and what they specifically what they've done in order to receive and continue to receive unemployment benefits. That is not the case anymore. They don't have to make that showing. And part of it is an acknowledgment that in certain industries that you know, where many, many, many employees have been laid off, such as hospitality and restaurants. I mean, that person because of such massive layoffs in the entire industry, is not going to be able to show or show or provide evidence of work search activities. So that's been one waiver. If an employer's if an employee's self employed, so an independent contractor, they would have to prove they no longer have to prove that they took at least three steps to reopen their business. So those things have been waived. You know, there are some other issues with the unemployment, some of the guidance that has come out that's pretty interesting. On on the unemployment, front from the Texas Workforce Commission, for example, you know, questions that people ask or will if, if I self quarantine, and it's not required by the employer, I just feel like I should because, well, I think I have COVID-19. Do you get unemployment benefits during that time period? So the answer is if you don't have COVID-19, you're probably not eligible for unemployment, which makes sense. But if you do have COVID-19, you actually may be eligible for unemployment benefits during that time. You also may be eligible for unemployment benefits or you would be eligible You self quarantine without your employer's permission, and you get fired for it. So that's kind of the guidance from the Texas Workforce Commission on that question. And it kind of, you know, it's very generous in terms of unemployment benefits, as you know, and many employers know, Texas Workforce Commission is more employee friendly. So a lot of times they will grant that employment benefits. And so anything related to COVID-19, if you terminate someone for self quarantining, without your permission as an employer, if they quarantine because they have to take care of a sick family member, and you terminate them, they probably would get unemployment benefits. So just be very aware of that, that that you're likely to face an unemployment claim, and you'll likely to pay it. If you terminate an employee for something related to COVID-19.

D.J. Verret, MD, FACS :

We're talking with Leiza Dolghih, of the law firm of Lewis Brisbois. Leiza, we're coming up on the end of our half hour here, and I'm gonna kind of put you on the spot a little bit. What is kind of your top one or two things you'd like our listeners, physician listeners to take away from the discussion today.

Leiza Dolghih, JD :

I will tell you, I cannot emphasize strongly enough the importance of communicating with employees, and making them feel like your practice is taking care of them. It could be small things like lunches, it could be virtual happy hours, wherever it is that you want to do for them. Because regardless of the legal advice that I gave you, at the end of the day, where we see a lot of claims is where employees feel like the employer has abandoned them at the end, you know, during those hard times, and so small gesture, self kindness to the employees, and showing them that you care, care for them, you want to help them get through this really tough time goes a very long way from you know, into to make sure that you have no legal claims coming towards you. And the reason for this too, is because as you mentioned, DJ, the laws are changing, the guidances are changing. There are a lot of new laws that haven't been tested in court, we are going to see a lot of COVID-19 employment related claims ranging from you know, I got infected at work, my employer didn't give me enough PP, they didn't really implement any safety measures, we're going to see those claims a lot. And we're going to see a lot of the claims where I was fired because, you know, I had COVID-19 or I had to take care of somebody that had COVID-19 we're going to see a lot of those claims as well. And so handling this types of issues at the front end, which is now with thoughtful policies, with you know, treating employees. Well, during this time, showing them kindness, showing them care, that's crucial to making sure that you're not you're not getting those types of lawsuits, you know, three years down the road.

D.J. Verret, MD, FACS :

And I think that advice is good advice pretty much any time of the year, but definitely during a stressful time. Like Like we've seen in the last couple of months.

Leiza Dolghih, JD :

Absolutely.

D.J. Verret, MD, FACS :

We've been talking with Leiza Dolghih with the law firm of Lewis Brisbois, you're listening to ask me MD medical school for the real world. I'm Dr. DJ Verret. Thank you for joining us make it an awesome week.

Announcer :

Thank you for joining us for another episode of Ask Me MD, medical school for the real world with Dr. DJ burette. If you have a question or an idea for a show, send us an email at questions at Ask Me MD podcast.com.