As employers respond to the COVID-19 crisis, they are urged to rely on guidance from the Centers for Disease Control and Prevention (CDC) and other federal and local agencies in determining strategies and common sense steps to reduce the likelihood of disease transmission. In addition, employers should regularly check for updates in the guidance, as the situation continues to rapidly evolve and previously published guidance will be updated regularly.
Combing through the agency guidance and considering compliance obligations is no easy task. To assist, we have compiled answers to the most frequently asked questions we have received about COVID-19 and legal compliance. These questions and answers may change based on new guidance and developments.
Q. Can we encourage our sick employees to stay home?
Updated 03/24/2020. A. Yes. Employers should actively encourage employees that are sick to stay home. The CDC recommends that employees that have symptoms of acute respiratory illness (e.g., cough or shortness of breath) stay home, and not return to work until they are symptom free and free of fever (temperature above 100.4° F) for 24 hours without the use of fever-reducing medication. However, employees with such symptoms should also be encouraged to contact their medical provider for additional advice and guidance.
Q. Can we require sick employees to go home?
A. Yes. The CDC recommends that employers separate employees who come to work with acute respiratory symptoms and send them home.
Q. Can we require a doctor’s note or fitness for duty certification for employees who have reported acute respiratory symptoms before they are allowed back to work?
A. Yes, but the CDC does not recommend it. While some employers do have policies in place that require doctor’s notes to substantiate an illness and demonstrate fitness to return to duty in conjunction with their ordinary sick leave policies, and while the ADA generally does not prohibit this practice, the CDC and the Equal Employment Opportunity Commission (EEOC) agree that requiring such a certification relative to COVID-19 may not be practical at this time, as health care providers may not be able to provide this certification on a timely basis.
However, for employees that have been diagnosed with COVID-19, the individuals should work with their local health agencies and health care providers to determine when it is safe to return to work. The CDC has updated their guidance (which can be accessed here) as to when employees may safely discontinue home isolation.
Q. Can we take our employees’ temperatures to determine if they have a fever?
Updated 04/29/2020. A. Because the CDC and state and local health authorities have acknowledged community spread of COVID-19, the EEOC has stated that employers may take their employees' body temperature. However, there are several legal, safety, and practical issues that should be considered before an employer decides to do this. First, as with all medical information and inquiries, the fact that an employee has a fever or other symptoms would be subject to strict ADA confidentiality requirements.
In addition, the employer has a duty to ensure the safety of the individual who is taking temperatures. The CDC has issued guidance to employers to help protect screeners, providing 3 methods: social distancing, physical barrier and personal protective equipment (PPE). The most protective methods incorporate maintaining a distance of 6 feet from others or physical barriers to minimize the screener’s exposure. PPE alone is a less effective control and more difficult to implement given PPE shortages and training requirements. Visit the CDC website for the full guidance on protecting screeners. Employers who have a large number of employees and who wish to take their employees’ temperatures may also want to consider contracting out these services with a healthcare provider.
Q. If we send employees home because they have acute respiratory symptoms can we require them to use their paid time off (PTO) or sick time?
Updated 03/24/2020. A. In most cases, yes. Where employees are sent home because they have presented symptoms of fever, cough and shortness of breath, employers can generally apply PTO and/or sick time to the absences per their regular policies. However, where statutory paid sick leave is used (i.e., where the paid sick leave benefit is provided because a particular state, city or county requires an employer to provide a proscribed amount of paid sick leave), employers should confirm that mandatory use of the paid leave is allowed by the law. Likewise, if the employee’s sick leave is also covered under a state family and medical leave law, employers should confirm that they can require the use of the paid time off. In Wisconsin, for example, employees using Wisconsin FMLA are allowed to choose whether to use paid leave or take unpaid time away, and cannot be required to use their PTO or sick time.
At the federal level, the Families First Coronavirus Response Act (FFCRA) will require most employers to pay Emergency Paid Sick Leave if the leave is due to the employee experiencing symptoms of COVID-19 and seeking a medical diagnosis, among other reasons. Full-time employees will be entitled to 80 hours of paid sick time, and part-time employees are entitled to an amount equal to the average number of hours they work over a two-week period.
Q. If we send employees home because they are sick but they do not have any PTO or sick leave to use, do we have to pay them?
Updated 03/24/2020. A. It depends. If the employees are salaried and exempt under state or federal wage and hour laws, then employers may not deduct from their salaries due to absences for sickness or disability unless the absence and deduction is taken in one or more whole day increments and is made in accordance with a bona fide policy or practice of providing compensation for salary lost due to illness (e.g., a PTO plan that can be used for sickness or other paid sick leave). If the employees are non-exempt under state or federal wage and hour laws, then employers generally do not have to pay them for time spent not working. That said, employers may want to consider paying employees for a week or two of time off, where the employee is being told by the employer to stay home for quarantine purposes.
At the federal level, the Families First Coronavirus Response Act (FFCRA) will require most employers to pay Emergency Paid Sick Leave if the leave is due to the employee experiencing symptoms of COVID-19 and seeking a medical diagnosis, among other reasons. Full-time employees will be entitled to 80 hours of paid sick time, and part-time employees are entitled to an amount equal to the average number of hours they work over a two-week period. Click here for more information about the FFCRA.
In addition, employers should keep up to date with new developments in federal, state and local emergency sick leave initiatives. For instance, in Minnesota, due to a very recent Executive Order, such individuals would be eligible for unemployment benefits, and other states are considering similar actions.
Q. We have a strict “no fault” attendance policy. Can we apply it to COVID-19 related absences?
Updated 03/24/2020. A. It depends. An employee that has contracted COVID-19 or the seasonal flu may be eligible for protected leave under state or the federal Family and Medical Leave Act (FMLA) or in some cases other disability-related laws where a leave of absence is requested and granted as a reasonable accommodation for a disability. Likewise, in jurisdictions that have statutory paid sick leave, such use of paid sick leave is often protected and should not count against employees who use such leave. Even without such statutory protections, the CDC recommends that employers plan for increased absenteeism and also actively encourage sick employees to stay home – temporarily suspending such strict attendance policies where the absences are related to the flu or other acute respiratory virus may be prudent. Likewise, when employers send employees home due to an imposed quarantine, such absences from work shouldn’t be counted against the employee’s attendance.
In addition, the FFCRA will require employers to provide expanded FMLA leave to for situations where an employee is unable to work or to work from home, due to the need to care for their child if the child’s school or childcare provider is closed, due to a public health emergency. In the current version of the bill, during the first 10 days of the protected leave, employees could, but would not be required to use any existing paid time off available to them. Click here for more information about the FFCRA.
Q. Can I ask my employees why they have been absent from work if they have not provided a reason, but I suspect there is a medical reason?
A. Yes. Employers can ask employees why they did not report to work and when they will return.
Q. Is COVID-19 a serious health condition under the Family and Medical Leave Act (FMLA)?
A. While employers are always encouraged to make FMLA determinations based on medical certifications received from health care providers, it would appear that contracting COVID-19 would likely meet that definition. The Department of Labor (DOL) has indicated that even the cold or seasonal flu may be a serious health condition for FMLA purposes, if the individual is incapacitated for more than three consecutive calendar days and receives continuing treatment by a healthcare provider, as defined in the regulations.
Q. Our employee returned home from a business trip overseas and is not symptomatic. Can we ask them to stay home for 14 days anyway?
A. Yes, depending on the location of travel and in conjunction with the CDC’s travel risk assessment by country, employers may impose a 14-day quarantine away from the office and allow employees to telecommute for the duration. It should be noted that for travel to countries where the risk is lowest for community transmission, social distancing strategies, such as remaining out of public places, schools, or workplaces, are neither required nor recommended by the CDC, so long as the employee remains asymptomatic. However, where there is “medium” or “high-risk” exposure to COVID-19, such as an employee who was in close contact with someone known to be infected, some form of social distancing is recommended.
Q. What if telecommuting is not an option for an asymptomatic employee on quarantine from the office?
Where working from home isn’t feasible, employers may consider other options including: (1) allowing work from a worksite which would allow the employee to remain physically separated from others during the work day (unless they are showing acute respiratory symptoms, in which case, employers should send them home); (2) providing a paid leave of absence or furlough; or (3) providing employees with the option to use PTO or to take the time off as unpaid. Before imposing or allowing an unpaid leave or voluntary furlough, employers should check applicable collective bargaining agreements and state and federal wage and hour laws to ensure compliance with salary deduction laws for their exempt salaried staff.
See also: We have a strict “no fault” attendance policy. Can we apply it to COVID-19 related absences?
Q. Can I ask my employees if they have traveled to high-risk countries, even if they were traveling for personal reasons?
A. Yes, employers can likely inquire as to whether their employees have traveled to high-risk areas for the purposes of assessing and managing risk. Employers should be careful to not single out certain employees based on their national origin or race, to ensure consistency and avoid any claims of discriminatory treatment.
Q. Can I restrict key employees from travelling to high-risk countries until the virus is under control?
A. Yes, employers may want to consider restricting their key employees from traveling to high-risk areas due to risks that the employee may be subject to quarantine and either prevented from returning to the United States for a significant period of time or subject to additional restrictions upon their return.
Q. Can I require new employees to have a post-offer medical exam to determine general health status in light of COVID-19 concerns?
A. Yes, if all employees in the same job category are required to undergo the same medical examination and the information is collected and maintained in separate and confidential medical files.
Q. Can I rescind a job offer made to a candidate based on the results of a medical examination if the exam reveals that the candidate has a medical condition that puts them at an increased risk of complications from COVID-19?
A. No, not unless the candidate’s medical condition would pose a direct threat, which means a significant risk of substantial harm to themselves or others that cannot be eliminated or reduced by reasonable accommodations. A finding of direct threat should be made using objective information and the best available guidance from the CDC or other health authorities. For example, a candidate with a compromised immune system whose job does not require regular contact with traveling employees who may visit potentially affected regions, would not pose a direct threat.
Q. Can I ask my employees if they have a compromised immune system or other chronic health condition that would make them more susceptible to complications from COVID-19?
A. No. Asking an employee to disclose a compromised immune system or chronic health condition is a disability-related inquiry and can only be permitted if the reason for asking is both job-related and consistent with business necessity. Unless an there is specific objective evidence that the employee’s condition would constitute a direct threat of harm to the health or safety of the employee or others, this inquiry would be prohibited by the ADA. That said, employers can inform their employees that some people may be at higher risk for severe illness from COVID-19, such as older adults and those with chronic medical conditions.
Q. If one of my employees voluntarily discloses that they have a compromised immune system or other chronic health condition that would make them more susceptible to COVID-19 and do not want to travel on business, do we have to comply with their request?
A. Maybe. Under the ADA, individuals with a disability are entitled to reasonable workplace accommodations barring undue hardship to the employer. Such reasonable accommodations could include a temporary forbearance on travel or attendance at business functions via remote electronic conferencing methods. Employers are encouraged to plan for and anticipate that a greater number of employees may need to telecommute during a pandemic. In addition, where reasonable accommodations are requested, employers should engage in an interactive process with the employee and keep the employee’s medical information confidential. See our previous article, ADA interactive process: Back to basics.
Q. If one of my employees has a confirmed case of COVID-19, can I inform other employees?
A. Yes, provided employers maintain the confidentiality and privacy interests of the person diagnosed per ADA guidance, the CDC recommends that if an employee is confirmed to have COVID-19, that employers can and should inform their other employees of the potential exposure to COVID-19. In doing so, employers should not identify by name the individual who contracted the disease. Generally, employers should send home all employees who worked in close proximity to the individual. Employers in this situation should work closely with medical health providers and rely on guidance from federal and local authorities about transmission risk and containment. Our companion article, Risk management, liability, and work comp considerations related to COVID-19, addresses this issue in greater detail.
Q. We may have to furlough or lay-off a number of workers. Do we have to provide advanced notice?
A. The federal Worker Adjustment and Retraining Notification (WARN) Act generally requires employers with 100 or more employees to provide at least 60 days’ notice of a plant closing or covered mass layoffs affecting 50 or more employees at a single site of employment. Although the provisions of the WARN Act are still being enforced by the Department of Labor at this time, the Act does provide for an exception to the notice requirements where layoffs occur due to certain unforeseeable business circumstances, such as natural disasters. The Department of Labor has an elaws advisor that will assist employers in determining if their event is covered by the Act. Many states have their own version of a WARN Act (mini-WARN Act), so employers should also check the applicable state(s) department of labor for more information.
Q. (New as of 3/24/2020) Must we pay our employees if our business is shut down due to lack of work or by a local/state/federal order?
A. It depends. Under federal law, provided there is no contract or other agreement that states otherwise, hourly and non-exempt employees only need to be paid for time worked. If they are not working after the shut-down, the Fair Labor Standards Act does not require you to pay them for lost time.
If the employees are salaried and exempt under state or federal wage and hour laws, then in most cases you may not deduct their weekly salary due to operating requirements of the business, such as a business shut down. If an exempt employee worked at all during the workweek, they must be paid for the full week, including the government shut-down days if they are able and available to work. Note, an employer is not required to pay the full week salary if the shut-down causes you to terminate employment immediately. Also, salaried and exempt employees do not need to be paid for any work week in which they do not perform any work. For further guidance on furloughs and layoffs click here.
At the federal level, the Families First Coronavirus Response Act (FFCRA) will require most employers to pay Emergency Paid Sick Leave if the leave is due to a “COVID-19-related quarantine order from local/state/federal government.” Full-time employees are entitled to 80 hours of paid sick time, and part-time employees are entitled to an amount equal to the average number of hours they work over a two-week period. Click here for more information about the FFCRA.
In addition, employers should keep up to date with new developments in federal, state and local emergency sick leave initiatives. For instance, in Minnesota and Wisconsin, due to recent Executive Orders, such individuals would be eligible for unemployment benefits, and other states are considering similar actions.
Q. (New as of 3/24/2020) What if we need to reduce a salaried employee’s wages or hours?
A. If employees are salaried and exempt under state or federal wage and hour laws, you may generally not deduct from their regular salary due to quality or quantity of work (with some exceptions). That said, employers can prospectively reduce the salary of a salaried and exempt employee without loss of the exemption provided the employee is still paid on a salary basis of at least $684 per week. If you want to reduce a salaried employee’s wages as a cost-savings or due to a downward trend in business you can do so by either (a) reducing their salary to not less than $684 per week in order to maintain the federally required salary basis, or (b) reclassifying the employee to a non-exempt hourly employee and pay them for time worked. Note that reclassifying an exempt employee to a non-exempt hourly position means that you will have to ensure that the employee tracks their time worked each week.
The situation continues to evolve and change daily — if you still have questions not addressed here, employers with access can contact the Hotline at Hotline@AssociatedBRC.com or can consult with an employment law attorney. Employers should also stay up to date with the most current information from health authorities such as the CDC and WHO:
Employers with additional questions and concerns can read our companion articles, How employers can prevent and prepare for coronavirus and Risk management, liability, and work comp considerations related to COVID-19.
Janice Pintar has extensive litigation experience in the field of employment law and was a plaintiff’s attorney for nearly thirteen years before becoming an HR Consultant in 2015.
Janice Pintar has extensive litigation experience in the field of employment law and was a plaintiff’s attorney for nearly thirteen years before joining Associated Financial Group’s HR Consultants in 2015. She educates and advises Human Resources professionals and employers on a broad range of employment issues and best practices and costly litigation compliance topics including respectful workplace practices, unlawful harassment avoidance, wage and hour issues, medical leaves and accommodations, as well as federal and state discrimination and anti-retaliation issues. Janice received her undergraduate degree from the University of Wisconsin-Milwaukee, magna cum laude, and her law degree from the University of Wisconsin, cum laude.
Risk management and human resources are traditionally two different job functions, and the people in these areas have rarely crossed paths — but that is changing.
Why are these people starting to work together more frequently?
A recent survey by the Society for Human Resources Management (SHRM) reported 94% of leaders feel employee engagement is an important or very important workforce challenge. An engaged workforce increases operational income by over 19%, while a disengaged workforce can drain over 34% of an organizations’ operational income. Additional risks of low engagement can be seen in increased turnover, low customer satisfaction ratings and even increased employment litigation.
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