Employees who fake coronavirus-related illnesses to become unemployed – although this is rare – could lose their jobs and face criminal prosecution. Additionally, companies may have to take costly steps to clean up the job site and track employee contacts after an employee reports they tested positive for the virus. Employers should take each claim seriously and have procedures in place to identify false claims.
“Employers should remain empathetic, personable and reassuring as the coronavirus continues to spread,” said Mark Keenan, an attorney at Barnes & Thornburg in Atlanta. “However, employers also need to be vigilant about potential fraudulent reports.”
Despite the potential for an employee to falsely report a positive test, attorney Joseph Shelton of Fisher Phillips in Nashville advises employers “to stay on course to do the right thing in the employer’s efforts, to take reasonable precautions, hopefully Prevent outbreaks. ” . “
The FBI recently 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, resulting in a plant shutdown and a $ 175,000 loss in productivity.
In some cases, employees have been arrested for making fraudulent COVID-19 claims, noted Scott McLaughlin, an attorney for Eversheds Sutherland in Houston. That being said, there could be different legal ramifications depending on the specific facts of the misrepresentation.
However, Keenan of Barnes & Thornburg noted, “These types of cases seem rare.” With a number of states still reporting increases in daily infection rates, employers shouldn’t assume their employees belong to this group, he said.
McLaughlin noted that there will be some workers “playing the system”. He added: “There is no way to avoid this and in this situation employers must obviously err on the safety and caution side first.”
Ask for documentation
The United States Centers for Disease Control and Prevention has stated that employers “should not require sick workers to present a COVID-19 test result or a health care provider reference to confirm their illness to qualify for a sick leave or return to work. ”
The employee may not be able to see a doctor for a note or test. But even in the case of COVID-19-related problems, Keenan said, the employer can and should request suitable documents that reflect the employee’s need for paid time off or vacation under the Family First Coronavirus Response Act (FFCRA) or the Family and Medical Leave Act ( FMLA) confirm). Under the U.S. Department of Labor’s FFCRA regulations, employers can require workers to:
An explanation or description of appropriate medical facts about the health of the patient for whom an FMLA leave is requested. There must be enough medical evidence to support the need for vacation. These medical facts may include information about symptoms, diagnosis, hospitalization, doctor visits, whether medication has been prescribed, referrals for evaluation or treatment (e.g., physical therapy), or other treatment regimens.
“Obviously, employers would have to comply with any local or state laws that might affect the documentation problem,” noted Ariel Kelly, an attorney at Fisher Phillips in Nashville, Tenn.
Keenan suggested that employers ask follow-up questions to clarify any ambiguities and continue to review anything that seems unusual, just like they do with ambiguous or problematic FMLA requests. “Without being persistent, the employer can remind all employees of the importance of providing accurate information so that the employer can take steps to ensure the safety of the workforce,” he said.
Employers should also note that the Equal Employment Opportunity Commission has specifically stated that disability documentation can be obtained.
“Employment lawyers always tell them to document everything,” said Kathy Dudley Helms, an attorney with Ogletree Deakins in Columbia, SC. However, she said there could be circumstances, such as at a COVID-19 hotspot where she received a note or test, would overwhelm healthcare providers. Therefore, employers may need to be flexible.
McLaughlin of Eversheds Sutherland stated, “From an occupational safety point of view, it is perfectly acceptable for an employer to ask a doctor for medical fitness information when an employee has had COVID-19, symptoms or other concerns about whether an employee is In general, employers have the right to obtain documents on COVID-19 free status as they are required to ensure a safe workplace. ”
Most employers have policies outlining the consequences of forging documents. “Employers must have clearly communicated the rules and expectations and then adhere to them,” said Helms.
McLaughlin noted that an employer can fire an employee who is mistakenly caught reporting illness of COVID-19. “However, employers should not allow their concerns about false disease reporting to diminish their overall COVID-19 safety practices,” he said.
Helms mentioned that an employer can change an excused absence to an unexcused absence if it later discovers that an employee has falsified the need for a leave of absence.
The gray area occurs when employees report exposure to COVID-19 and apply for quarantine, which can become an issue when time off is paid or when employees are allowed to work remotely when it would otherwise be expected to report to the Construction site.
“At the moment, a COVID-19 break has been released out of caution,” she noted.
Connect with employees
“The current environment offers employers an opportunity to bond positively with their employees,” said Keenan. Employers should communicate the steps they have taken to promote the safety and health of employees, strengthen their infection control policies, and use the current situation to encourage two-way communication.
“Give employees a chance to report their questions and concerns,” he said. “In this way, employers promote a positive work atmosphere and relationships with workers, and it is likely that workers themselves will point out potential fraud or abuse of the current pandemic by others.”