In this episode, Eva and Rachel discuss important considerations for farmers who want to health screen employees on the farm with temperature checks and what to be wary of regarding unemployment and discrimination.
Many farmers are just as concerned with what the COVID-19 pandemic means for food safety, employee equity issues aside. Say you’ve done the best you can to offer sick time but you are still worried about exposure for you, fellow employees, and customers. Say you want to protect your workplace by screening – can you ask about social contacts they’ve had? Can you take their temperature at the door? It’s hard to say. Employers can’t require employees to undergo a medical examination unless necessary for job performance, and taking a temperature is an examination. Normally, a temperature of 98.6 isn’t necessary to perform most jobs. Where is the line? And what will you do when folks are running a temperature? Maybe it’s from COVID-19, but maybe not. Will you send them home? With or without pay? If it’s without, you are risking dismissing them opening you up to potential discrimination claims.
So, can you force an employee to stay home? Can you prohibit them from coming to work? Well, that’s usually called firing someone, so see what we said above! But, can you send them home for the day? Send them home for 14 days? If you are sending someone home without pay, you are likely firing them… We need to take a step back and think about how the law looks at these issues. Farm workers are generally at will employees. If a worker isn’t under a contract, they are at will (assuming you aren’t in Montana). What is at will? It means the employer can fire an individual worker at any time and for any legal reason. “For any legal reason” means unless a reason is illegal, a person can be let go. You can let a person go for any number of reasons: e.g. you don’t like their performance.So, why are we asking this question? What are we afraid of? We are afraid of two things. First, a claim of discrimination. We want to be able to show we didn’t discriminate against someone on the basis of a protected class. Protected classes? It’s a legal term. The state and federal government tell us on what bases we may discriminate and on which we may not. For example, can a farm let a woman go because she becomes pregnant? No, that’s illegal. The second thing is unemployment insurance. Persons let go through no fault of their own are eligible for unemployment. The business is worried that the person will collect unemployment. What’s wrong with that? It causes the employer’s unemployment tax rate to go up. But let’s get back to the issue at hand. You have a worker who isn’t practicing social distancing. You know they went out to a big party last week. Can you let them go? Is it discriminatory? Maybe. Was it a party for a religious holiday? Was it a baby shower? A fight is possible. Can they collect unemployment insurance? Well… Most farm workers are not eligible for unemployment benefits anyways but let’s set that aside… They are eligible if they were dismissed through no fault of their own. Going to a party has little to do with work so likely this threshold is met. If you asked them not to? Well, we’re getting dicey here. We don’t have thorough policy for a pandemic. We don’t normally allow businesses to tell employees what they can and can’t do in their personal lives. So long as it doesn’t create a safety issue on the job. You’re taking a risk if you do it. You’re also taking a risk if you don’t.
Bottom line is having people go home without pay because of their medical condition or social practices outside of work is risky. You minimize that risk if you give them their pay and they keep their job. You can also consider modifying the job to eliminate risk, e.g. asking an unwell employee to work on inventory and packing orders rather than selling at market or delivering orders. You can also lay people off. Just remember what we’re afraid of – discrimination and unemployment insurance.
For more information on farm unemployment, read our Hiring a Farm Employee: Tax and Paperwork Checklist for Illinois, Iowa, Michigan, Minnesota, New Hampshire, Ohio, Pennsylvania, Vermont, Wisconsin, and other states.
Disclaimer: We are working hard and fast to get information together about COVID-19 related programs to share with the farming community as quickly and accurately as possible. Please note that things are rapidly shifting during this time and what was accurate info 2 days or 2 weeks ago may not be accurate tomorrow. As such, please look for our most recent updated information on all COVID-19 issues. As always, the above communications are delivered for educational purposes only and do not constitute the rendering of legal advice.
“Podcast intro” from Royalty Free by Kevin MacLeod. Released: 2020.