As most everyone in the world by now is aware, the Coronavirus Disease 2019 (COVID-19) pandemic is sweeping the United States and rocking the economy. The federal government and nearly all 50 states have declared states of emergency. Many schools and businesses are closed or operating remotely. The pandemic creates unique issues for employers and employees alike. The following FAQs focus on the legal obligations of employers related to COVID-19.
Can we ask an employee to stay home from work if he exhibits symptoms of COVID-19 or the flu?
Yes. Guidance issued by the Centers for Disease Control and Prevention (CDC) states that employees with such symptoms should stay home and seek medical attention. The Equal Employment Opportunity Commission (EEOC) has stated that asking symptomatic workers to stay home during a pandemic is not a “disability-related action” under the Americans with Disabilities Act (ADA).[1]
Can we ask an employee about his health or take his temperature at work?
Maybe. You can only ask questions about an employee’s medical status or conduct a “medical examination” (including taking an employee’s temperature) if (1) the inquiry or exam is job-related and consistent with business necessity (which is highly fact-specific), or (2) the employer has a reasonable belief that the employee poses a “direct threat” to the health or safety of the employee or others that cannot be addressed through a reasonable accommodation (as determined by the CDC and state/local public health agencies). Thus, it may be permissible to ask an employee about his health and/or take his temperature at work if such actions are warranted by the employee’s job or if the employee is located in an area where the pandemic is widespread as determined by government health agencies.
What if our employee has a confirmed case of COVID-19?
You should send home that employee and all employees who worked in close proximity to that employee for at least 14 days. You should also require any affected employee to provide a doctor’s note before returning to work. You should not identify the infected employee to other employees.
What if our employee has a suspected case of COVID-19 or has been exposed to someone with COVID-19?
You should probably handle these cases in the same way you would handle a confirmed case of COVID-19 – by sending employees home to prevent any potential spread.
Should we close our office and allow our employees to work remotely?
This depends on many factors, including government restrictions in your area, the nature of your business, and the availability/practicality of remote work. In general, if your employees can work remotely without significant disruptions to your business, it is advisable to consider this option. The CDC and many state and local governments have encouraged telework during this pandemic.
In addition, keep in mind that employees with disabilities may request to telework as a reasonable accommodation under the ADA. The EEOC has stated that employees with disabilities that put them at high risk for complications related to COVID-19 may request to telework as a reasonable accommodation to reduce their chance of infection.
Should we limit our employees’ travel?
Yes, you should limit your employees’ work-related travel to comply with current governmental travel restrictions. It is also generally advisable to restrict all non-essential travel.
How should we handle an employee who is returning from travel to a country affected by governmental travel restrictions?
You should require any such employee to comply with government quarantine restrictions. Currently, all U.S. citizens, legal permanent residents, and their immediate families who are returning from a restricted country (there are currently 28) must self-quarantine in their homes for 14 days after their arrival.
Can we ask questions of an employee who recently traveled out of the country for personal reasons?
Yes. In light of government travel restrictions and quarantine requirements, you can ask an employee what countries he visited and require him to comply with government quarantine requirements.
If an employee doesn’t want to come to work out of fear that he will be exposed to COVID-19, do we have to let him stay home?
Probably not. Employees can only refuse to work if they believe they are in “imminent danger,” which the Occupational Safety and Health Act defines as “any conditions or practices in any place of employment which are such that a danger exists which can reasonably be expected to cause death or serious physical harm immediately.” Currently, most work conditions in the United States would not rise to this level.
What are my obligations to employees who are not working due to COVID-19 because they are sick, are caring for a sick family member, or are staying home with children whose schools are closed?
First, you may have to pay certain employees who are not working due to COVID-19. You do not have to pay an employee who is classified as non-exempt (hourly) under the Fair Labor Standards Act (FLSA) if he is not working. You generally must pay an exempt (salaried) employee his regular salary unless he performs no work for an entire week or is absent for a full day for personal reasons not covered by leave.
Second, you should allow employees who are not working due to COVID-19 to use any leave permitted by your standard policies and/or applicable state law. The Family and Medical Leave Act (FMLA)[2] guarantees 12 weeks of job-protected leave to an eligible employee with a serious health condition (such as COVID-19) or who is caring for a spouse, child, or parent with a serious health condition, but the leave normally does not have to be paid. Some states require employers to offer additional leave.
Third, you should consider taking advantage of the benefits offered by the Families First Coronavirus Response Act (Response Act), which was signed by President Trump on March 18, 2020 and goes into effect on April 2, 2020. The Response Act, which only applies to employers with fewer than 500 employees, guarantees certain paid leave to employees who are:
- Quarantined due to COVID-19 or experiencing symptoms of COVID-19;
- Caring for a family member who is quarantined due to COVID-19;
- Caring for a child whose school is closed due to COVID-19; or
- Experiencing any other substantially similar condition specified by Health and Human Services in consultation with the Treasury and Labor Departments (details TBD).
The Response Act provides two benefits to employees:
- 12 weeks of job-protected FMLA leave, all but the first 10 days of which must be paid at a rate of no less than 2/3 of the employee’s regular rate, capped at $200 per day/$10,000 total (the first 10 days can be unpaid or the employee can choose to take other available paid leave); and
- 14 days of paid sick leave (pro-rated for part-time employees), capped at $511 per day/$5,110 for an employee quarantined or suffering from COVID-19 symptoms, and $200 per day/$2,000 total for an employee caring for children quarantined or suffering from COVID-19 symptoms or whose schools are closed, in addition to any paid leave already offered by the employer.
Employers will receive tax credits for 100% of what they pay out to employees under the Response Act.
Employers with 50 or fewer employees can petition the Secretary of Labor to be exempt from the requirements of the Response Act if compliance would jeopardize the viability of their business. Employers with fewer than 25 employees are not required to restore employees to their previous positions post-FMLA leave.
Once an employee exhausts all available leave, what can we do?
You can allow the employee to take unpaid leave or you can terminate the employee’s employment.
[1] The ADA applies to employer with at least 15 employees.
[2] The FMLA applies to employers with at least 50 employees.
This article is for informational purposes only and does not contain or convey legal advice. Consult a lawyer. Any views or opinions expressed herein are those of the authors, and are not necessarily the views of any client.