"Employers need to have clearly communicated rules and expectations and then abide by them," Helms said. Most employers have policies outlining the consequences of falsifying documents. Generally, employers are within their rights to seek documentation of COVID-19-free status because of their obligation to maintain a safe workplace." McLaughlin explained, "From a workplace-safety standpoint, it is perfectly acceptable for an employer to require fitness-for-duty information from a physician when an employee has had COVID-19 or symptoms or there are other reasons to be concerned about whether an employee has been exposed. However, she said, there may be circumstances, such as in a COVID-19 hot spot, where obtaining a note or test would overburden health care providers. "Employment lawyers always say to document everything," said Kathy Dudley Helms, an attorney with Ogletree Deakins in Columbia, S.C. "Without being heavy-handed, the employer can remind all employees of the critical importance of providing accurate information so that the employer can take steps to ensure the safety of the workforce," he said.Įmployers should also note that the Equal Employment Opportunity Commission has specifically stated that documentation can be requested Keenan suggested that employers ask follow-up questions to clarify ambiguities and continue to verify anything that seems out of the ordinary. But even for COVID-19-related issues, Keenan said, the employer can and should require appropriate documentation confirming the employee's need for leave under the Family and Medical Leave Act. The employee might not be able to see a physician to obtain a note or a test. Centers for Disease Control and Prevention has said that employers "should not require sick employees to provide a COVID-19 test result or a health care provider's note to validate their illness, qualify for sick leave or to return to work." McLaughlin noted that there will be some workers who are "playing the system." He added, "There is not a way to avoid that, and, in this situation, employers obviously need to err on the side of safety and caution first." However, Barnes & Thornburg's Keenan observed, "these types of cases appear to be few and far between." Aside from that, he said, there could be a variety of legal consequences, depending on the specific facts of the misrepresentation. The FBI has warned employers to be on the lookout for potential fraud, citing the case of an employee at a critical manufacturing facility who faked a positive COVID-19 test result, leading to a plant shutdown and productivity loss of $175,000.Įmployees have been arrested for making fraudulent COVID-19 claims, noted Scott McLaughlin, an attorney with Ogletree Deakins in Houston. "However, employers must also be vigilant about potential fraudulent reports."ĭespite the potential that an employee might falsely report a positive test, attorney Joseph Shelton with Fisher Phillips in Nashville said he still advises employers to "stay the course on doing what's right in terms of the employer's efforts to take appropriate cautions to hopefully prevent any outbreaks." "Employers should remain empathetic, sympathetic and reassuring given the continued spread of coronavirus," said Mark Keenan, an attorney with Barnes & Thornburg in Atlanta. Employers should take each claim seriously and also have procedures in place to identify false claims, particularly if COVID-19 cases rise again due to such variants as "Kraken." Additionally, businesses may have to take costly steps to clean the worksite and trace employee contacts after an employee reports that he or she has tested positive for the virus. Employees who fake coronavirus-related illnesses to get out of work-though doing so may be rare-could lose their jobs and face criminal penalties.
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