COVID-19 is already impacting employers and that impact will be ongoing. As the situation regarding COVID-19 continues to evolve, we will continue to monitor frequently asked questions and prepare our best answers with the information currently available. The situation will change based on the ongoing guidance from the CDC as well as advisories from federal, state, and local authorities. New laws may be enacted on the federal, state, and local level. We will continue to update this list of questions and supplement the answers as the situation continues to develop. Employers should also closely monitor the latest guidance from the CDC as well as other federal, state, and local regulatory authorities.
Can I restrict employee personal travel?
You generally cannot restrict personal travel by employees. However, to ensure a safe workplace, you can and should ask about employee personal travel and restrict employees from coming to work for a 14-day period if they have traveled to high-risk locations as designated by the CDC. Employees should be told ahead of time that if they travel to high-risk locations they may be required to self-quarantine when they return, and, it the employee has telework capability and authorization, should make appropriate arrangements to work from home before they depart for travel. You should closely monitor CDC announcements with respect to high-risk locations as the situation changes daily, and high-risk locations may include domestic as well as international travel. For travel advisories from the CDC, click here. For key employees who are needed during this time you can ask or require them to cancel vacations based on risk level or regardless of risk level, if you just need them to be at work (unless a contract or executive bargaining agreement says otherwise).
For more information on this topic see sections I and III of our update.
Can I require employees to come to work?
Employees who are sick with any symptoms listed by the CDC (fever with cough and/or shortness of breath) should be told to stay home and you should be vigilant in enforcement of that policy. If employees call in sick you can ask them about their symptoms to determine risk level, but you must keep this health information in confidence pursuant to ADA requirements. For further information on your obligations and applicable restrictions under the ADA, see sections I, II and III of our update.
Employees who have tested positive for COVID-19 or who have been in high-risk exposure situations (such as travel from high-risk locations or exposure to an individual known to have COVID-19) should not be permitted to come to work. Employees with underlying health conditions (such as autoimmune disease) which give them heightened susceptibility to or risk from COVID-19 may be qualified for leave, telework arrangements, or other accommodations pursuant to the Americans With Disabilities Act (ADA) and similar state and local laws and you should engage in an interactive process with those individuals subject to your usual ADA protocol.
Other than as indicated above, yes, you can require employees to come to work and you do not have to authorize absences just because employees are uncomfortable or simply do not wish to come to work. For some employers, such as health care providers, emergency responders, and providers of essential public services, letting employees stay home may not be an option. However, if you wish to or must require employees to continue to come to work, you must provide a safe workplace pursuant to OSHA and similar state laws. Standards continue to evolve for what it means to provide a "safe workplace" in this situation. Employers should follow all CDC recommendations in this regard including telling employees to wash hands frequently and practice social distancing, but these steps may not be sufficient to ensure workplace safety as the situation develops. Employers are encouraged to implement telework arrangements, expanded leave options, relaxed attendance policy protocols, staggered shifts or reduced hours options, and other methods of increasing social distancing in the workforce. Employers should review applicable OSHA guidance and monitor the CDC recommendations in this regard on a daily basis.
If your business is under a shutdown order from federal, state, or local authorities, you should not require employees to come to work.
If my employee cannot come to work because of a school closure, do I have to grant leave?
Currently, unless state or local law in your area says otherwise, you can handle that situation under your current protocols. So, if you would ordinarily not grant an excused absence for this situation, you do not have to do so. However, there is pending federal legislation which may change this by providing job-protected leave for employees who are homebound due to school closures and other reasons not currently protected by law. This legislation may go into effect as early as this week. For more information on pending federal legislation, see sections I and IV of our update. You should also stay informed on state or local laws which may impact your obligations in this situation.
Can I require employees who are sick to stay home?
Yes. You can and should require employees who test positive for COVID-19, who have been exposed to someone who has tested positive for COVID-19, and/or who are displaying symptoms consistent with COVID, to stay home from work, including 72 hours after they are symptom-free if they are sick. If you have not done so, you should issue an announcement regarding this protocol and let employees know they must stay home if they fall into these categories.
Do I have to pay employees who are staying home? Can I require them to use PTO?
Currently, you can follow your current protocols with respect to how you handle employees who cannot come to work due to personal or family illness, school closures, or government-issued quarantine or closure orders, as well as employees who you have told not to come to work because they are in a high-risk category (based on travel history, symptoms of COVID-19, or exposure to COVID-19). So if you would normally require use of PTO or other accrued paid leave in those situations you may do so. If those situations would normally result in unpaid leave, either because you do not have a paid leave program, or because an employee has used all available paid leave, and subject to state and local paid leave laws and certain aspects of federal wage and hour law as explained further below, you may put employees on unpaid leave, for now.
That said, the CDC has recommended that employers be flexible with attendance and sick leave policies and have encouraged employers to permit telework as an option to the extent possible. Providing a telework option not only creates a safer workplace, it will permit your workforce to remain productive even if they cannot be at the office and will avoid depletion of paid leave banks. Some employers are getting creative, including temporarily increasing available PTO and allowing employees to have a negative PTO balance with the promise to pay the time back later.
Keep in mind that to the extent it becomes known among your workforce that there is a "penalty" for staying home, such as forced use of PTO or unpaid status, this will discourage employees from self-disclosing sickness and test results and will increase the likelihood they will come to work if sick, which could end up resulting in more employees getting sick and a worse situation for your business.
Finally, there is federal legislation pending that may change the game with respect to your obligation to pay employees who are missing work as a result of the COVID-19 pandemic. For further information, see sections I and IV of our update. Stay tuned.
What wage and hour considerations should I keep in mind in this situation?
Under federal wage and hour law, if your non-exempt employees are not working you do not have to pay them. However, you should exercise caution with respect to employees whom you have classified as salaried exempt pursuant to the Fair Labor Standards Act (FLSA) or applicable state law. Generally, salaried employees must be paid their full salary for any day in which they do any work at all (including telework). If a salaried employee misses a full day of work, you may be able to dock salary but you should seek advice to make sure the deduction is permitted. Particularly when implementing company-wide policies that may impact large numbers or groups of salaried employees, you should get advice to make sure you are not violating the requirements of federal law with respect to maintaining a salaried basis of payment.
Can I temporarily change my policies to address the COVID-19 pandemic?
Yes. You can enact changes on a temporary basis without creating ongoing entitlements. For instance, you may wish to change PTO eligibility requirements, expand telework options for positions or individuals who would not normally be available for telework, or temporarily waive certain aspects of your attendance policy (for instance, to avoid overburdening health care systems, the CDC recommends employers not require doctors' notes to verify sickness or fitness for duty at this time). You can let your employees know that these protocols are temporary and may be modified or terminated at any time.
What should I be thinking about as I ramp up telework options?
If you have not done so, you should immediately begin assessing telework capacity for positions where job duties would permit telework. While this is not mandatory for employers currently, the CDC recommends implementing telework options to facilitate social distancing. In addition, ramping up a telework protocol will put you in a much better position should mandatory closures impact your business. Implementing a program or ramping up an existing program will be a team effort including your executive management and your IT and Human Resources personnel. You can and should think about expanding telework options even if you do not currently have a telework program and even if a particular position or individual would not normally be eligible for telework. If you do not have a written telework policy covering requirements for telework, such as actually working and being available and productive while teleworking, observing data security protocols, and acknowledging that telework is not a permanent entitlement, you should develop such a policy and have employees acknowledge receipt of the policy as they commence telework. For information on implementing a telework policy, see sections I and V of our update.
Does the FMLA apply to absences related to COVID-19?
It depends. Absences not related to actual sickness of an employee or family member (for instance, such as related to a school closure or travel-based quarantine) would not be covered by the FMLA. In addition, medical experts and the CDC have indicated that individuals may have COVID-19 and experience only mild symptoms. Thus, just having COVID-19 or mild symptoms associated with COVID-19 would likely not qualify as a serious health condition under the FMLA. Conversely, if an employee is absent for these kinds of reasons, the time should not be counted against his or her annual FMLA leave allotment.
However, if any employee is experiencing more serious health issues and is under the care of a doctor, or if they are hospitalized, FMLA would apply, meaning the absences would be job-protected and FMLA protocols should be followed.
Pending federal legislation would expand the categories of job-protected leave, including providing job-protected leave for reasons that are not health-related, as well as expanding coverage to small businesses not currently covered by the FMLA. For more information, see sections I and IV of our update. Stay tuned.
Can I take employees' temperatures?
Ordinarily, no, this would be a prohibited medical examination under the ADA. However, when a pandemic occurs, privacy restrictions of the ADA may be trumped by public safety concerns and workplace safety mandates issued by OSHA and other governmental authorities. Employers are urged to review the EEOC's guidance on pandemics, which provides detailed information and examples regarding what kinds of examinations you may perform and what kinds of health-related questions you can ask of employees during a pandemic. However, please note that the wording of the guidance also indicates that community conditions in your area will determine whether or not there is a "direct threat" to workplace safety sufficient to permit inquiries and examinations otherwise prohibited under the ADA. In other words, the fact that a global pandemic and national state of emergency has been declared may not be sufficient to establish pandemic conditions in your community. This is one where you will want to want stay on top of the announcements from your state and local authorities.
As a practical matter, it may not be worth going in a legal grey area to take temperatures, since this may not be a very effective way of ensuring workplace safety. Fever will not always mean an employee has COVID-19, and also individuals may have COVID-19 without fever.
To the extent you conduct medical examinations or receive health information from employees, you must maintain this information in confidence in accordance with ADA protocols.
What do I do if one of my employees tests positive for COVID-19?
You must balance maintaining confidentiality of this information (as required by the ADA) with taking steps to ensure workplace safety. You should inform coworkers who are at risk (such as being in the same location as the impacted employee or who have likely engaged in close interactions with the impacted employee) regarding the positive test but without identifying the employee by name if you can possibly avoid doing so. Your workplace may need to be closed temporarily while you conduct deep cleaning. Every situation will be different and you should exercise your best judgment depending on the circumstances and seek advice if in doubt, with the utmost priority of keeping your employees safe.
Will the pending federal legislation impact my business?
Yes, it probably will. Legislation expanding job protection and paid leave obligations for employers including small businesses has passed in the U.S. House of Representatives and awaiting a vote in the Senate. Some version of this legislation will likely be in place very shortly. For more information, see sections I and IV of our update.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
