Our business is considered “essential,” and our employees are still reporting to work. What steps can and should we take to keep our workplace healthy and safe?
Most states have issued some form of “shelter in place” or “stay at home” order to flatten the curve. As a result, many business operations have been temporarily suspended, unless the business is engaged in essential or critical infrastructure functions, or supports businesses engaged in such functions.
The Occupational Safety and Health Administration (OSHA) advises that the Occupational Safety and Health Act (OSHA Act) requirements may apply to preventing occupational exposure to COVID-19, including OSHA’s personal protective equipment (PPE) standards (which require workplace modifications, as well as the use of gloves, eye and face protection, and respiratory protection in certain situations), and the General Duty Clause (which requires employers to furnish “employment and a place of employment which are free from recognized hazards that are causing or likely to cause the death or serious harm to . . . employees.”) Employers could face fines under the OSHA Act if they do not take affirmative steps to protect their workers.
On April 13, 2020, OSHA issued guidance requiring its inspection officers to prioritize onsite inspections of workplaces with “high potential” for exposure (such as healthcare organizations and first responders) and complaints of fatalities or “imminent danger exposures” related to COVID-19 (although considerations should be maintained for phone- or video-based inspections). All other formal complaints in low- or medium-risk settings will generally not result in onsite inspections during the pandemic, and informal complaints related to COVID-19 exposure will be investigated through informal proceedings to expedite employers’ attention to alleged hazards.
Employers should take proactive steps to limit onsite workers to essential personnel who cannot complete their work remotely. Steps employers should take to reduce their workers’ risk of exposure to the virus include the following:
- Developing an infectious disease response plan (if one does not exist already)
- Implementing basic infection prevention measures
- Developing policies and procedures for prompt identification and isolation of sick people, if appropriate
- Developing, implementing and communicating about workplace flexibilities and protections
- Implementing workplace controls, including social distancing
- Following existing OSHA standards.
Additionally, the Centers for Disease Control and Prevention (CDC) recommends that employers explore whether they can establish flexible work hours, such as staggered shifts, to increase the physical distance among employees and between employees and others. The CDC recommends that all members of the public wear non-medical-grade face coverings to avoid potentially infecting others, even if they have no symptoms. Some municipalities, such as Los Angeles County and Miami-Dade County, have ordered all employers to provide employees with (or reimburse employees for) non-medical-grade face coverings, from cloth masks to handkerchiefs and scarves, if workers are unable to remain a safe distance from each other or the public.
Employers also should discourage any non-essential business-related travel. Sales and marketing staff should be trained in engaging potential customers by email, phone and video. For employees who must report to work, certain protections can be used to prevent transmission of illness and assuage fears of transmission, such as social distancing, practicing good hygiene, using paper towels or other barriers to open and close doors, providing hand sanitizing stations, and increasing environmental cleaning and sanitation procedures.
Employers are encouraged to review CDC and OSHA strategies for minimizing the potential exposure risk for all employees. Employers should also consult state and local orders governing essential businesses for any additional requirements.
Are employees obligated to disclose if they have tested positive for COVID-19?
Generally, no. However, the Equal Employment Opportunity Commission (EEOC) has stated that employers may ask employees who report feeling ill at work, or who call in sick, questions about their symptoms to determine if they have or may have COVID-19. This guidance suggests that employers may ask employees to inform them of any positive COVID-19 test results, so that employers are able to take measures to protect the health and safety of other workers—an obligation employers bear under OSHA. That said, depending on the state of employment, state law may further restrict the employer’s ability to ask an employee for their diagnosis (e.g. California). Employers should make every effort to maintain all information about employee illness as a confidential medical record for purposes of Americans with Disabilities Act (ADA) compliance.
Can we require employees to report if they or their coworkers have COVID-19 symptoms?
Generally, no. Based on EEOC guidance, employers may ask employees to report symptoms they are exhibiting. Employers may want to consider implementing reporting mechanisms that will help employees feel comfortable reporting this type of information and also allow the employer to efficiently track the information.
Asking employees to report their coworkers’ symptoms could present more challenges than solutions. This request runs the risk of inviting employees to make reports based on possible biases and stereotypes regarding national origin or other protected categories, and encouraging employees to ask intrusive questions of their co-workers. Instead, employers should inform and encourage employees to self-monitor for signs and symptoms of COVID-19, particularly if they suspect possible exposure, and to self-report accordingly.
Can we require that employees have their temperature taken at work?
On March 18, 2020, the EEOC issued guidance confirming it is legally permissible to take employees’ temperature and to ask if they are experiencing COVID-19 symptoms under the ADA and the Rehabilitation Act. Although most states still do not require employers to take employee temperatures, some states and localities do now require employee temperature taking and/or other health screens, and many states and localities recommend such screens (though do not require them) through local orders.
Are there any risks to requiring employees to have their temperature taken at work?
While temperature screening in the workplace and elsewhere may now become the norm in many businesses and has been sanctioned by the EEOC (see previous question), temperature taking of employees is not without some risk. When implementing temperature and other screening measures in the workplace, there are a number of things for employers to consider.
- Employers should ensure that their screening procedures are safe and consistent, apply to all those entering the workplace, including employees, customers, contractors/vendors, and guests, and that they give proper notice of screening measures.
- Temperature taking procedures should, at a minimum, encourage employees to self-monitor and stay home if they are experiencing any COVID-19 symptoms.
- Temperature taking in the workplace should be designed to maintain necessary confidentiality and safety via social distancing and proper PPE.
What options does our business have in implementing a temperature screen of employees? Should we ask employees to self-monitor, have employees screened at the door, or some combination?
In implementing temperature-screening measures, there are several options.
First, consistent with self-monitoring practices, an employer could require employees to take their temperature each day before reporting to work and to stay home if they have a fever. The CDC has defined a fever as 100.4 ºF or higher. Depending on the state of employment, employees who do not have thermometers may be entitled to reimbursement for the purchase of a thermometer.
A second option is to provide employees with thermometers for use both prior to reporting to work and to monitor their temperatures throughout the day while at work for any spikes in temperature. Similarly, if the employee has a temperature of 100.4 ºF or higher, they should be instructed to leave the workplace and seek medical attention.
Both of the above options eliminate the need to have another employee take each employee’s temperature and for tracking and monitoring the time employees may otherwise spend waiting in line to be screened and being screened, which waiting time pay be compensable time in many states.
However, some employers may choose to designate an employee to screen employees and others entering the workplace for fever and other COVID-19 symptoms. If an employer chooses to do so, they should use a no touch thermometer or other temperature monitoring device which allows for distance between the operator and the individual being screened. Additionally, any employee performing such screening should be provided with the proper PPE including a protective gown, mask, and gloves. Additionally, in many states, the time a non-exempt employee spends waiting and being screened is compensable time. Again, if the employee or other individual attempting to enter the workplace exhibits a fever or other COVID-19 symptoms, they should be instructed to leave and seek medical attention. Also keep in mind that the employee tasked with taking temperatures will therefore have access to confidential employee medical information, as temperature screens are considered “medical examinations” by the EEOC; for this reason, some businesses may wish to avoid having an employee’s direct supervisor perform the screen, to avoid a later allegation that the supervisor acted adversely to that employee based on their medical condition. In addition, an employee’s results should be kept as confidential as possible, shared only on a need to know basis as necessary to protect against the threat of exposure to COVID-19, and kept in a separate file from the employee’s personnel file.
Is temperature screening an effective measure to eliminate COVID-19 from the workplace?
Temperature taking alone will not necessarily screen out 100% of COVID-19 cases. The science is still developing with respect to the virus, and much is unknown. The latest data from the CDC indicates that those who contract COVID-19 may develop symptoms 2-14 days after exposure, and the incubation period for COVID-19 is currently thought to extend to 14 days. However, some individuals may have the virus but show no symptoms at all. With respect to fever, studies vary, and the CDC data currently indicates that one study showed that most individuals with COVID-19 will at some point during the virus experience fever (83-99%), whereas another study showed fever present in only 44% of hospitalized COVID-19 patients. Thus, the absence of fever is not necessarily determinative of the absence of COVID-19, and conversely, there are many non-COVID-19 and non-contagious diseases/scenarios where someone may present with a fever.
As a reminder, temperature screening should only be one element in an employer’s comprehensive COVID-19 protocols as many people infected with COVID-19 have no temperature and are asymptomatic or may present with other symptoms but no fever. The latest CDC guidelines provide that people with cough and/or shortness of breath or difficulty breathing may have COVID-19. In addition, people with at least two of the following symptoms may have COVID-19: fever (100.4°F/38°C or higher); chills; repeated shaking with chills; muscle pain; headache; sore throat; new loss of taste or smell.
Additionally, to deter employees who may be feeling ill from reporting to work and/or attempting to mask symptoms, employers should assess their paid and unpaid leave programs and provide flexibility as needed.
What should we do if an employee informs us that she suspects she has COVID-19?
The employer should have a discussion with the employee reporting symptoms of COVID-19, as outlined below. Discussion of an employee’s confidential medical information should be handled by designated individuals within the company who are trained to handle sensitive information and who are knowledgeable regarding what questions may be asked pursuant to the relevant jurisdiction’s laws (e.g., human resources professionals who manage the company’s leaves of absence).
- The employee should be instructed to stay away from the workplace.
- The employee should contact a medical professional immediately. The employer should not permit the employee to return to the workforce without a fitness-for-duty certification or until the employee otherwise meets CDC guidelines for when it is safe to return to work after experiencing COVID-19 symptoms.
- If the employee is found to have contracted COVID-19, the CDC and local health department should be contacted immediately, likely by the employee’s healthcare provider.
- If the affected employee had contact with any other employee or worksite while ill, the employer should inform other potentially affected employees (taking care to keep the affected employee’s identity and medical information private) and ask those who have any symptoms to stay at home either on a leave basis or through telework until those employees receive a fitness-for-duty notice or until the employee otherwise meets CDC guidelines for when it is safe to return to work after experiencing COVID-19 symptoms.
- The employer should contact a hazmat company to disinfect the job site or workplace so that it may provide assurances to other asymptomatic employees that it is safe to return to work.
- If the employee contracted COVID-19 in the workplace, documentation may be required by the employer, including an OSHA record of any serious work-related injuries or illnesses. OSHA has advised that COVID-19 can be a recordable illness if a worker is infected as a result of performing their work-related duties, but employers are only responsible for recording cases of COVID-19 if all of the following are true:
- The case is a confirmed case of COVID-19;
- The case is work-related (as defined by 29 CFR 1904.5); and
- The case involves one or more of the general recording criteria set forth in 29 CFR 1904.7 (e.g., medical treatment beyond first aid, days away from work).
In taking the above actions, the employer must be careful to avoid discrimination against individuals who are perceived as having contracted COVID-19 or who may be from high-risk areas. The employer also must comply with the confidentiality restrictions imposed by the Family Medical Leave Act (FMLA) and Health Insurance Portability and Accountability Act (HIPAA), and similar state and local laws.
What is our obligation if an employee cannot come to work because schools are closed and the employee needs to care for children?
If the Families First Coronavirus Response Act (FFCRA) applies, two components of paid time off (PTO) are potentially triggered. The FFCRA applies to employers with fewer than 500 employees as further defined in the US Department of Labor (DOL) regulations. If an employee is unable to work or telework because of a need to care for a child whose school or place of care is closed, or whose childcare provider is unavailable, due to COVID-19, the employee is eligible for up to 12 weeks of paid leave at two-thirds regular rate of pay (capped at $200 per day), as follows:
- For the first two weeks of leave, emergency paid sick leave of up to 80 hours; and
- For the following up to 10 weeks, paid FMLA leave (only applies to employees who have been employed for 30 or more days).
An employer cannot require employees to take other PTO, vacation or previously provided sick leave before availing to this mandated sick leave.
In addition, state and local law in an employer’s jurisdiction may provide employees with some protected time off for this purpose. For example, the city of San Francisco recently enacted an ordinance requiring companies of 500 or more employees to provide certain paid leave time for COVID-19 related reasons, including childcare-related reasons. Employers should consult with counsel to determine if local or state law may govern this issue.
Absent a legal requirement to do so, employers may consider providing employees with additional flexibility during this time, to permit them to address emergency and unexpected events that affect their ability to secure childcare. Such time off could be provided paid or unpaid.
Also note that, under the new CARES Act unemployment expansion for Pandemic Unemployment Assistance (PUA), employees who are forced to quit due to childcare issues related to COVID-19 may now be entitled to receive unemployment insurance benefits through their state.
An employee is experiencing mild illness symptoms, such as fever or cough, but has asked to continue working. Should we have the employee report to work?
No. Employees who are ill should not come to the workplace. If an employee reports to the workplace exhibiting symptoms, the employee should be sent home immediately.
If the employee is not too ill to work:
- For exempt employees, to the extent possible, employers should encourage flexible or remote working capabilities. Employers should work closely with exempt employees to determine if their position enables temporary remote working during the period of illness and what, if any, additional tools or technologies can assist in remote working to avoid or limit any business disruptions.
- For non-exempt employees, employers should review whether remote work is feasible, with particular attention to the employer’s ability to ensure continued compliance with wage-hour laws during remote work times. For employers that elect to permit certain non-exempt employee positions to work remotely, additional check-in procedures and oversight should be used to ensure productivity and compliance with timekeeping, breaks, and other federal, state and local wage-hour considerations. Employers should review and implement parameters for tracking of employee time, including monitoring proper and timely meal and rest periods (if applicable); overseeing, approving and tracking overtime; and facilitating supervisor management of employees to continue to meet business needs.
If the employee is too ill to work:
- If the FFCRA applies to the employer, then employees who are unable to work or telework due to certain COVID-19 related reasons are entitled to up to 80 hours of paid sick leave at the employee’s regular rate of pay (capped at $511/day). This includes employees who are unable to work or telework because they are experiencing COVID-19 symptoms and seeking a medical diagnosis, as well as employees who have been advised by a healthcare provider to self-quarantine because of COVID-19.
- Depending on the state of employment and the employer’s policies, the employee also may be entitled to use accrued, unused vacation/PTO and/or paid sick leave during the employee’s time out of the business.
- To further incentivize employees not to come to the workplace when they are ill, employers may want to consider advancing additional PTO or sick leave to employees who do not have any accrued, unused PTO or paid sick leave to use at this time. Employers that do not typically provide paid sick leave to employees may consider issuing paid sick leave time to employees for 2020 in response to COVID-19, and in any case, must comply with the FFCRA if applicable. In certain states, paid sick leave can be issued without any further obligation to pay out the additional time upon termination. Employers should contact counsel to design a state-law-compliant policy.
- Employee time out of the business may also be protected and governed by state and local law.
Like many others, our business is struggling. Can we implement salary reductions for our exempt employees to adjust for this downturn?
Yes, employers generally may prospectively reduce salaries for at-will, exempt employees during a business or economic slowdown, so long as the reduction is done for bona fide long-term business reasons and not done on a day-to-day or week-to-week basis (short-term changes may jeopardize the exempt status of the employee). For employees who are under contract, the employer must review the terms of the agreement before modifying an employee’s compensation or other employment terms.
Many state and federal exemptions require employers to compensate employees on a salary basis, and require such employees to earn at least a threshold minimum salary. The threshold may vary depending on the state of employment. Employers should be cognizant of these requirements if they are considering reducing exempt employee salaries, to ensure that otherwise-exempt employees remain exempt and continue to meet the minimum salary threshold applicable.
Any reduction in employee pay should be implemented in a non-discriminatory, even-handed way. Any substantial reduction in an employee’s compensation may be interpreted as constructive termination if the employee resigns as a result, and therefore employers should understand that such terminations may be interpreted as an involuntary employer-initiated termination for employment law purposes.
Is my business eligible for financial assistance under the CARES Act?
The Coronavirus Aid, Relief, and Economic Stimulus (CARES) Act earmarked $2 trillion in stimulus funding to help businesses and their employees cope with the economic impact of the COVID-19 outbreak. The CARES Act is intended to inject liquidity back into the financial system, facilitate economic recovery, and incentivize employers to maintain and restore their workforces.
The CARES Act empowers the US Department of the Treasury to set up a $454 billion loan program for mid-sized businesses, defined as businesses employing 500 to 10,000 individuals as defined in the Act. Among other requirements, the applicant will be required to certify that the loan is necessary for its continued operations given current economic uncertainties and that it is not a debtor in a bankruptcy proceeding.
The CARES Act also created the Paycheck Protection Program to provide up to $349 billion in forgivable loans to small businesses with 500 or fewer employees as defined in the Act. All applicants must certify, among other things, that that the loan is necessary due to current economic conditions and that the funds will only be used for certain specified and authorized payroll costs and operational expenses. As of April 16, 2020, the PPP exhausted its initial funding, although negotiations are underway to provide additional funding.
What does the CARES Act do to expand unemployment benefits for workers?
The Coronavirus Aid, Relief, and Economic Security Act (CARES Act) contains several important unemployment insurance (UI) expansions, including:
- Expanding eligibility to new categories of workers, including the self-employed and independent contractors, and for workers who are unemployed due to a host of COVID-19 reasons, for those unemployed between January 27, 2020 through December 31, 2020
- Providing an extra $600 per week (until the end of July 2020) in addition to what is normally available through state UI benefits for those who qualify for even $1 of state unemployment insurance
- Eliminating the state’s traditional one-week waiting period through December 31, 2020
- Adding 13 additional weeks of UI benefits on top of the state’s existing period of eligibility through December 31, 2020
- Funding of short-term compensation programs for states that have them or create them (g. where employees’ hours have been reduced rather than eliminated)
- Funding for states to permit them to hire additional workers and update their systems to support the increased UI administration required
Businesses should be aware that many factors, including differences in individual state unemployment programs, may affect an employee’s access to UI benefits.
We are considering doing a “partial furlough” where we are going to be reducing employee hours somewhat but they will continue to perform some work. Will our employees who are now being reduced to part-time be eligible to receive partial UI benefits?
It depends. Many companies are considering reduction in hours and/or compensation for employees with the hope that employees can receive some partial UI benefit through the state. Such companies should understand that a reduction in hours/compensation will not always result in partial UI eligibility. Ultimately, whether a worker will be entitled to receive partial UI benefits depends on the state’s definition of “partial unemployment” and whether the worker qualifies under that definition.
Each state is a little different on this point, but very generally speaking the “partial unemployment” eligibility qualification test tends to look at whether the employee is working less than full-time and earning less than the weekly benefit amount that the employee would receive on state UI had they been completely furloughed. To determine what the employee’s weekly benefit amount would be, each state has its own formula that typically takes a fraction of the employee’s historical compensation over several quarters, and is subject to a state-specific minimum and maximum.
If the employee is eligible for partial unemployment benefits in any amount, that employee will also be entitled to receive the full FPUC $600 supplemental UI benefit (available through July 2020).
For assistance with understanding your state(s)’ rules and eligibility requirements for partial unemployment, companies should consult with counsel.
I heard that in some cases, employees will make more on unemployment than if they were working. Is this true? If so, what is an employee’s motivation to return to work?
Yes. In some cases, given the flat $600 per week FPUC benefit under CARES, some workers (particularly lower-paid workers) may be able to receive 100% or greater than 100% of their lost wages in UI through July 2020. Some have criticized the CARES benefit for this reason, fearing that it will encourage workers to go on UI rather than work. That said, quitting without good cause to obtain these benefits under the state’s UI program or the CARES Act qualifies as fraud, renders the individual ineligible for any such payments (which must be paid back if received), and subjects the individual to criminal prosecution under 18 U.S.C. section 1001. Thus, only a worker who is able to work, available to work, and actively seeking work (unless unable to do so due to COVID-19) may be eligible for any UI or CARES UI benefits.
In practice, this will mean that workers must be laid off or furloughed by their employer or forced to quit due to COVID-19 reasons in order to continue receiving UI benefits. Once the business reopens and the worker is offered reinstatement, in most cases this will also cut off UI eligibility, unless the worker continues to need to stay out of work due to one of the CARES Act PUA COVID-19 reasons.
When are the CARES Act UI expansions effective?
As of March 28, 2020, all states have signed on to implement the CARES Act UI expansions. We are now waiting on each state to update their systems to reflect these expansions. The timing of this will be state-specific depending on how quickly the state can act to update their system, and in some cases certain expansions (e.g. the FPUC $600 per week expansion) may be implemented first, with other expansions (e.g. the PUA expansion to permit UI benefits for COVID-19 reasons) being implemented later due to the complexity of such updates. Certain states such as California and New York have already updated their systems to administer the FPUC $600 expansion.
While it may take the states a few more weeks to update their systems, all CARES expansions will be retroactive to a point. States are required to provide retroactive payments to individuals eligible for FPUC ($600/week) for the weeks they would have been entitled. In addition, workers who would have been eligible for UI under the PUA (COVID reasons) will also be entitled to retroactive benefits back to February 2, 2020. Each state will develop procedures to permit workers to receive such benefits, which may include a requirement to apply/reapply to the extent the worker has not yet been in the UI system.
What does the CARES Act permit businesses to do with respect to tax deferral?
Section 2302 of the CARES Act grants significant latitude to delay paying the employer portion of Social Security taxes (6.2% tax paid on wages up to the 2020 annual limit of $137,700). Employers may defer payments of those payroll taxes for 2020 over the following two years, with half of the amount required to be paid by December 31, 2021, and the other half by December 31, 2022. However, businesses that receive loan forgiveness under the CARES Act (available under Sections 1106 or 1109) will be ineligible for these deferred tax payments.
Does the CARES Act provide employers with an employee retention tax credit?
Section 2301 of the CARES Act offers an “employee retention” tax credit. This is a 50% tax credit for wages paid (a) in a calendar quarter where revenues are less than 50% of the prior calendar year quarter, or (b) in a calendar quarter where the business has been fully or partially suspended due to government orders limiting commerce, travel or group meetings. These credits apply to qualified wages paid after March 12, 2020 and through the end of 2020. Qualified wages include the eligible employer’s qualified health plan expenses that are properly allocable to the wages. The credit is subject to a $10,000 cap per employee for all calendar quarters (so a total of $5,000 credit per employee).
The availability of these credits turns on the number of employees.
- For all employers, the tax credit applies to wages paid “for which the qualifying employee is not providing services” due to the circumstances noted in the preceding paragraph (i.e. significant decline in gross receipts or partial/full business suspension).
- For employers of 100 or fewer employees, the tax credit also applies to wages paid to employees who are providing services during periods of partial/full business suspension or a quarter with significant decline in gross receipts.
For purposes of this tax credit, the number of employees is determined by looking to the employer’s average number of full-time employees during 2019.
The credit is allowed against the employer portion of social security taxes under section 3111(a) of the Internal Revenue Code, subject to certain exceptions. Also note that an employer cannot take advantage of this tax credit for the paid leave wage payments taken into consideration for the tax credit under sections 7001 and 7003 of the Families First Coronavirus Response Act. Moreover, employers that receive loans (not loan forgiveness) under the CARES Act (as added under Section 1102) are ineligible for employee retention tax credits.
Can we require documentation from healthcare providers for employees who are sick with acute respiratory illness? If so, should we?
The answer to this question will differ based on jurisdiction (particularly in jurisdictions that maintain state or local paid sick leave laws) and circumstance.
Federal law generally permits an employer to require reasonable documentation from healthcare providers to support the existence of an illness requiring time out of the business, or to certify the employee’s fitness to return to the workplace.
The ADA allows employers to ask employees to provide documentation from their healthcare provider to evaluate the extent of an impairment where an employee has requested an accommodation or the employer has an objective basis to believe the employee is unable to perform essential job functions because of an impairment.
In addition, if an employee is requesting paid leave under the FFCRA, the employer must require the employee to provide certain information (e.g., the employee’s name, date(s) for which the employee is requesting leave, the reason for leave, and a statement that the employee is unable to work because of that reason) as well as documentation demonstrating the need for leave. For example, if the employee requests leave to self-quarantine based on the advice of a healthcare provider, the employee should also provide the name of the healthcare provider who gave the advice.
In some jurisdictions, state or local law may further address whether an employer may require medical documentation from an employee who requires a short-term absence for illness or the illness of a family member, and whether the employer may request diagnosis information with such documentation. In some cases, documentation should not be required, particularly where the employee is using paid sick leave.
If we require an employee to stay home because of COVID-19 concerns, and the employee does not have any PTO or paid sick leave to use, do we have to compensate the worker for the time away from work?
First, if an employee who is at home feels well enough to work, the employer can allow the employee to do so, and should compensate him as if he is performing work from the office.
If the employee is unable to work or telework, the employer may be legally obligated to provide that employee with paid leave under the FFCRA. Employees of covered employers who have COVID-19 or are suspected to have COVID-19 and are unable to work or telework are generally eligible to receive two weeks (up to 80 hours) of paid sick leave at their regular rate of pay (capped at $511 per day). Employers cannot require employees to exhaust their paid leave options (e.g., accrued PTO or state or local paid sick leave) before using FFCRA leave.
Employers that are not already familiar with the FFCRA are encouraged to thoroughly review it, and all covered employers must adjust their policies to comply, including communicating the specifics of the new policies to their employees and posting the notice. Employers should consult with legal counsel regarding any questions about the FFCRA’s provisions and their application.
Although employers that fall outside the FFCRA’s ambit may have no legal obligation at this time to provide compensation to such employees during their time away from work, these employers might consider implementing temporary policies to incentivize employees to remain home while ill, such as one-time front-loading of additional PTO or paid sick leave time. Employers should consult with legal counsel regarding whether such additional time would be subject to laws regulating vacation and/or paid sick leave in their jurisdiction, such as regulations regarding carryover, caps and payout upon termination, and to develop a written policy accordingly.
Also note that state and local jurisdictions are considering and enacting piecemeal leave obligations on employers. For example, the city of San Francisco recently enacted a leave requirement for employers of 500+ employees for COVID-related reasons. Employers should consult with counsel regarding their specific jurisdictions of operation to confirm whether new laws have been enacted to impose additional leave obligations.
If employees are working remotely, do we have to provide them with additional equipment, or can we have employees use their own equipment (e.g., personal computer, cell phone, printer)?
Employers may generally require employees to use their own personal devices for work-related matters. Depending on the jurisdiction, employers may be required to reimburse employees for costs associated with the use of their personal devices for work purposes.
Employers that permit employees to use their personal devices to conduct company business should consider whether this may affect the company’s ability to protect the security of company data. For instance, employers may consider implementing security measures on those personal devices to protect company data and confidentiality.
Employers should also ensure that they have written policies in place that define and communicate an employee’s expectation of privacy (or lack thereof) on personal devices if used for work purposes.
If non-exempt employees are given remote access to perform work (e.g., access to work email on a cell phone), employers should set forth the expectation that work will only be performed during working hours and on-the-clock.
Employers also should keep in mind that their ADA responsibilities to individuals with disabilities continue during a pandemic. The EEOC has stated that if an employee with a disability needs the same reasonable accommodation at a telework site that the employee had at the workplace (e.g., a screen-reader on an office computer for an employee with low vision), the employer should provide that accommodation, unless it would result in undue hardship. If a requested accommodation would cause undue hardship, the EEOC advises that the employer and employee should work together to identify an alternative reasonable accommodation. Although the EEOC has acknowledged that the extraordinary circumstances brought on by the COVID-19 pandemic may result in some delay in addressing accommodation requests and providing accommodations where warranted, employers are encouraged to continue addressing such requests as soon as possible. Employers should make every effort to use interim solutions to allow employees to keep working as much as possible.
If we require an employee to obtain a fitness-for-duty certification before returning to work, do we have to pay for the employee’s out-of-pocket expenses?
Depending on the circumstances, testing and a fitness to return to work certification may be necessary, particularly for employees who have been exposed to COVID-19 and are exhibiting symptoms, or who have been diagnosed with COVID-19.
In its March 17, 2020, guidance, the EEOC provided that employers may require return to work certification in relation to the COVID-19 pandemic. However, because doctors and other healthcare professionals are extremely busy during and immediately after a pandemic outbreak, alternative 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 may return to work.
If an employer requires an employee to obtain a medical certification or test, state law may require the employer to reimburse the employee for these costs. The employer also may be required to compensate non-exempt employees for their time spent obtaining the certification. For certain workplace exposures (e.g., bloodborne pathogen exposure), the employer would be required to pay for the cost of testing under OSHA regulations. Employers should contact counsel to discuss their particular situation and jurisdiction.
In scenarios where the employer sends an employee for laboratory testing under state and federal legal authorities, the laboratory conducting the test may reveal the results directly to the employer in accordance with HIPAA.
Do we have a duty to report potential COVID-19 cases? Is there any record-keeping requirement?
Absent additional state legislation, existing state reporting requirements for infectious diseases apply to healthcare providers only and not to employers.
State health agencies and media outlets may seek voluntary information from larger employers about the number of employees infected. With the exception of employer-sponsored self-insured health benefit plans, the HIPAA regulations that protect individually identifiable health information do not apply to employers. However, employers should still exercise diligence in sharing information about specific employee cases, both internally and externally. Affected employers that wish to disclose information may consider providing aggregate counts in response to requests from state agencies or media outlets (e.g., “14 of our employees have been infected with COVID-19”).
Employers also may be subject to COVID-19 recordkeeping requirements under OSHA. Employers that are already covered by OSHA recordkeeping requirements (which is based on the North American Industry Classification System code applicable to each employer’s industry) must record certain work-related injuries and illnesses on their OSHA 300 log, whose information must be submitted to OSHA on an annual basis and posted for employees to review in the beginning of each calendar year (covering the prior year’s incidents). COVID-19 may constitute a recordable illness if an employee is infected as a result of performing work-related duties. However, the recording requirement is only triggered if (1) the situation involves a confirmed case of COVID-19; (2) the case is work-related, as defined by OSHA; and (3) the case involves one or more of the general recording criteria laid out in the OSHA regulations (e.g., days away from work or medical treatment beyond first aid).
On April 10, 2020, OSHA issued guidance stating that employers (except for healthcare, first-responder and correctional industries) in geographic areas experiencing community transmission need not determine whether an employee’s COVID-19 infection was “work-related,” unless (1) there is objective evidence that the case is work-related (e.g., multiple employees who work closely together are infected, and there is no alternative explanation), and (2) the evidence was reasonably available to the employer, whether through employee complaints or day-to-day management activities.
OSHA has acknowledged the inherent difficulty in determining whether a particular case of COVID-19 was truly a work-related illness. As such, where an employee has tested positive for COVID-19, the employer must evaluate whether the illness was in fact “work-related” and involves one of the recording criteria delineated under the regulations. While the latter is likely to be met in a confirmed case (as the employee will likely have been instructed to stay away from work and may potentially receive treatment beyond first aid), determining whether the illness was “work-related” can involve a more nuanced, individualized analysis. Employers are encouraged to contact counsel for assistance.
Can we institute a rule that prohibits employees from traveling to heavily affected areas?
No. As a general rule, employers cannot control an employee’s lawful off-duty conduct, including elective travel. However, given the current circumstances, it would be reasonable to introduce a policy requiring employees to disclose what their travel plans are once travel becomes more regular.
If an employee has booked travel to a known affected area and still intends to travel, employers might consider reminding the employee of the risks involved and the employer’s obligation to protect the health and safety of its employees. Employers may want to specifically remind the employee of the possibility of a mandatory quarantine period on return from travel. Ask the employee to keep the appropriate company contact (e.g., human resources) informed of any health concerns. Employers should also ensure that employees understand the policy in relation to pay if they do have to go into quarantine on their return from travel, and whether remote work is available for employees.
Does our response to COVID-19 implicate any privacy laws or regulations?
It might. Privacy rights are complicated matters for employers, and they should consult a privacy lawyer to discuss those issues.
Can employers require employees to take COVID-19 antibody tests before returning to work?
No. Taking a note from the CDC, the EEOC has issued new guidance for employers stating that, at this time, the ADA does not permit employers to require employees to take a COVID-19 antibody test or to use antibody test results to make decisions about returning workers to the workplace.
This guidance applies only to the COVID-19 antibody testing, which is designed to determine if an individual has ever had COVID-19 in their lifetime. The antibody rest does not indicate whether someone currently has active COVID-19.
This guidance does not apply to viral and other tests used to determine if someone currently has an active case of COVID-19, which the EEOC has previously stated are permissible under the ADA. (Employers should consult with counsel to determine if state or other applicable law may further restrict the ability to require such testing.)