The Mailbag: Employee Leave.

COVID test result: Must we take employee's word?

Q Can we ask employees for a doctor's note or the results after they go for a COVID test, or do we have to take their word?

1. The EEOC has specifically addressed the issue of whether employers can request proof of test results, saying "such inquiries are permitted under the ADA because they would not be disability-related" during a pandemic. The agency did note that, as a practical matter, health care professionals may be too busy during this pandemic to provide fitness-for-duty documentation for every employee. So the EEOC says "new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp or an e-mail to certify that an individual does not have the pandemic virus."

   Does refusing telework nullify emergency FMLA?

   Q An employee wants to take emergency FMLA leave. We told her she can work from home but she refused, saying she can't work at all because she's watching her child while the school is closed. Doesn't this mean she isn't qualified for the leave?

1. Employees generally cannot refuse to take telework when the absence is for school closures if their organization offers the opportunity to do that telework around the child's schedule. Offering alternative hours (i.e., early morning and late night) would be one way to show that the employee could perform telework and, thus, is not eligible for the paid leave.

   Here is how the U.S. Department of Labor answered an employee's similar question: "If you are unable to perform those teleworking tasks or work the required teleworking hours because you need to care for your child whose school or place of care is closed, or childcare provider is unavailable, because of COVID-19 related reasons, then you are entitled to take expanded family and medical leave. Of course, to the extent you are able to telework while caring for your child, paid sick leave and expanded family and medical leave is not available."

   Fear of co-workers' infection: A reason for leave?

   Q An employee decided on her own to leave work one day when she learned that a co-worker had been around a friend who may have COVID-19. (The friend's results haven't come back yet.) The employee, who was six feet away from the co-worker at all times and hasn't shown any symptoms, has requested emergency paid sick leave. Must we give it?

1. No. Unless your employee has been advised to seek testing or otherwise been told to self-isolate, her fear of...