The coronavirus, or COVID-19, has been designated a pandemic. A pandemic is a global epidemic. The U.S. Department of Health and Human Services (HHS), Centers for Disease Control and Prevention (CDC), and the World Health Organization (WHO) are the definitive sources of information about influenza pandemics. Pandemic planning and responsiveness includes individual employer’s plans about how to manage employees and to continue operations. This bulletin is intended to provide employers with guidance on how to address workplace issues presented by COVID-19.
Compliance with applicable labor and employment laws while trying to manage and operate a business is unquestionably a balancing act between an employer’s interest in protecting its larger workforce from infection and employee’s rights. Set forth below are some frequently asked questions we anticipate employers will have and answers with considerations of the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and the Fair Labor Standards Act (FLSA), where applicable.
IT IS IMPORTANT TO NOTE THAT ANY AND ALL ACTIONS AN EMPLOYER TAKES IN RESPONSE TO COVID-19 SHOULD BE APPLIED UNIFORMLY AND IN A MANNER THAT DOES NOT DISCRIMINATE BASED ON ANY PROTECTED CHARACTERISTIC (I.E., AGE (40 AND OVER), SEX, RACE, COLOR, NATIONAL ORIGIN, RELIGION, DISABILITY OR VETERAN STATUS).
General Issues of Concern
Q. Is COVID-19 an FMLA-covered serious health condition?
A. Not necessarily. If COVID-19 does not satisfy the regulatory definition of a “serious health condition” employers should not count the absence against the employee’s 12 weeks of FMLA leave. An example of a non-FMLA qualifying situation is when an employee is required by the employer to stay home but is asymptomatic.
Q. Is COVID-19 considered a disability under the ADA?
A. Normally, no. Even under the amended ADA, the duration of COVID-19 will likely not be long enough to qualify as an ADA disability. That said, complications from COVID-19 (e.g., pneumonia) may qualify as an ADA disability, triggering certain obligations for the employer (e.g., reasonable accommodation).
Q. Is an employer’s knowledge that an employee has COVID-19 subject to HIPAA’s privacy restrictions?
A. Not usually, unless the employer acquired the information in its role as the administrator of the health insurance plan. Since most employers will learn of a COVID-19 diagnosis from the employee or his or her family, the Health Insurance Portability and Accountability Act (HIPAA) usually will not be implicated.
Q. Could COVID-19 be covered by workers’ compensation?
A. Workers’ compensation claims and procedures are based on state laws, which vary from state to state. Employers should consult with workers’ compensation counsel.
First, let’s address the “Mays” important to employers:
May an employer send employees home if they show COVID-19 symptoms? Can the employees be required to take sick leave? Do they have to be paid? May employers prevent employees from coming to work?
Yes. Employers are allowed to send workers home and require them to stay there if they become will with symptoms. Sending a worker home is not a disability-related incident when the symptoms reflect a seasonal illness. Also, a worker ill with COVID-19 poses a direct threat of infecting others. Remember, all employment decisions must comply with the laws prohibiting discrimination in the workplace on the basis of race, sex, age (40 and over), color, religion, national origin, disability, or veteran status.
Company policies on sick leave, and any applicable employment contracts or collective bargaining agreements would determine whether you should provide paid leave to employees who are not at work. If the leave qualifies as FMLA-protected leave, the statute allows employees to elect or the employer to require the substitution of paid sick and paid vacation/personal leave in some circumstances. Caution: The Federal Families First Coronavirus Response Act (FFCRA) may have implications. See section below on implications of FFCRA.
May employers ask about an employee’s travel history?
When the CDC has recommended that those who are returning from specific locations remain at home, then the employer may ask about travel history.
May employers take employees’ temperatures during a pandemic?
Generally, taking a worker’s temperature would qualify as a medical exam that the ADA does not normally allow. However, during an outbreak such as COVID-19, when the CDC has recommended temperature screening, employers may do so.
May an employer send home or require to work from home an employee who has no symptoms but has been in close contact with someone with COVID-19 (e.g., a family member, close friend, etc.)?
Yes. If an asymptomatic employee fits within certain categories established by the CDC’s guidance, which categorizes employees based on (a) symptoms (i.e., symptomatic or asymptomatic) and (b) risk (i.e., High, Medium, Low, or No Identifiable), which takes into account both travel destinations and level and type of contact with symptomatic individuals.
May an employer send home or require to work from home an asymptomatic employee returning from travel to an area with “widespread sustained” transmission?
Yes. If an employee falls into certain CDC risk categories. Among the considerations for these risk categories is travel to certain areas with “widespread sustained” transmission (See CDC Level 3 Travel Health Notice). As of March 15, 2020, those areas include China; Iran; South Korea; Europe (Schengen Area): Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, Switzerland, Monaco, San Marino, Vatican City; and, United Kingdom and Ireland: England, Scotland, wales, Northern Ireland, Republic of Ireland.
May an employer require an asymptomatic employee with no known exposure to COVID-19 to telework from home for a certain period of time as a preventative or precautionary measure?
Generally, yes, as long as the employee’s duties allow telework. The Department of Labor (DOL) recently reiterated that requiring or encouraging employees to telework based on current information from public health authorities can be a useful infection-control or prevention strategy and may also be an appropriate ADA accommodation.
When may an employee who was sent home for exhibiting symptoms (subjective or measured fever, cough, difficulty breathing) return to work?
Based on current CDC guidance, in general business settings (i.e., non-healthcare settings where employees are not at a greater risk of contracting COVID-19), employees may return to work at least 24 hours after no longer having or exhibiting (a) a fever (defined by the CDC as a temperature greater than 100.4° F or 37.8° C), (b) signs of a fever [note, the CDC has not explained what this means], and (c) any other symptoms, without the aid of fever-reducing medicines such as ibuprofen or acetaminophen or other symptom-masking medicines such as cough suppressants.
It should be noted that return-to-work standards and time periods may be different for an individual with a confirmed COVID-19 diagnosis. Employers should consult the CDC’s and other public health authorities’ guidance.
If an employee does not feel well enough to return to work at least 24 hours after no longer having a fever or exhibiting signs of a fever or other symptoms, may the employee remain out of work?
Yes. Notably, if an employee is given instructions or restrictions by a public health authority or a medical provider, it will be beneficial for the health of the workplace for employers to make all reasonable efforts to accommodate those instructions and/or restrictions, including by providing additional leave as necessary. Also, employers should be cognizant of potential existing leave obligations under the FMLA for serious health conditions or accommodations (including additional leave) under the ADA in which an employee’s illness might constitute an ADA disability.
If an employee is ready to return to work and has a doctor’s return-to-work note, but the employer is concerned the employee will not be able to safely perform his or her duties, may an employer refuse to allow the employee to return to work?
Yes, if the employee would create an unsafe or unhealthy work environment or is a direct threat to him or herself or others.
May an employer require an employee who is out sick with COVID-19 to provide a doctor’s note, submit to a medical exam, or remain symptom-free for a specified amount of time before returning to work?
Yes. But, employers should consider that during a pandemic, healthcare resources may be overwhelmed and it may be difficult for employees to get appointments with doctors or other health care providers to verify they are well or no longer contagious.
During a pandemic health crisis, under the ADA, an employer would be allowed to require a doctor’s note, a medical examination, or a time period during which the employee has been symptom free, before it allows the employee to return to work. Specifically, an employer may require the above actions of an employee where it has a reasonable belief – based on objective evidence – that the employee’s present medical condition would:
- impair his ability to perform essential job functions (i.e., fundamental job duties) with or without reasonable accommodation; or,
- pose a direct threat (i.e., significant risk of substantial harm that cannot be reduced or eliminated by reasonable accommodation) to safety in the workplace.
In situations in which an employee’s leave is covered by the FMLA, the employer may have a uniformly-applied policy or practice that requires all similarly situated employees to obtain and present certification from the employee’s health care provider that the employee is able to resume work.
Employers are required to notify employees in advance if the employer will require a fitness-for-duty certification to return to work. Of course, employers should be aware that fitness-for-duty certifications may be difficult to obtain during a pandemic.
If state or local law or the terms of a collective bargaining agreement govern an employee’s return to work, those provisions shall be applied.
May an employer disclose an employee’s actual or probable COVID-19 diagnosis to others?
Yes. Per the CDC, employers should inform co-workers of their potential workplace exposure but only to the extent necessary to adequately inform them of their potential workplace exposure while maintaining confidentiality under the ADA (i.e., without revealing the infected individual’s name unless otherwise directed by the CDC or applicable public health authority). Employers may communicate to non-exposed employees generally that there has been a potential COVID-19 exposure, without sharing additional identifying information. Employers also may be able to communicate to appropriate non-employees (e.g., customers, clients, vendors, and others with whom the employee may have come in contact while working) that there was a potential COVID-19 exposure, again without sharing identifying information.
May an employee refuse to come to work due to a fear of becoming infected with COVID-19?
Maybe. Employees may be protected from retaliation under the Occupational Safety and Health Act (OSHA) in certain circumstances when they refuse to perform work as directed. An employee may refuse an assignment that involves “a risk of death or serious physical harm” if the following conditions apply: (i) the employee has “asked the employer to eliminate the danger and the employer failed to do so”; (ii) the employee “refused to work in ‘good faith’ (a genuine belief that an imminent danger exists); (iii) “[a] reasonable person would agree that there is real danger of death or serious injury”; and (iv) “[t]here isn’t enough time, due to the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection.”
While each circumstance is different, and a generalized fear of contracting COVID-19 is not likely to justify a work refusal in most cases, employers should conduct a thorough review of the facts before any disciplinary action is taken against an employee who refuses to perform his or her job due to a fear of exposure to COVID-19.
May an employer refuse an employee’s request to wear self-provided respiratory protection and/or gloves?
Yes, if such measures are not otherwise required by the CDC’s guidance or OSHA’s standards, or if the employer determines that the employee’s use of respiratory protection or gloves in and of themselves presents a hazard to the employee (e.g., if they interfere with the employee’s ability to work safely).
May an employer require an employee with COVID-19 to use vacation time and/or other paid time off for the absence?
Yes, subject to the provisions of the employer’s current vacation time, paid time off (PTO), and other applicable policies and any state laws (e.g., implied contract of employment) restricting an employer’s ability to interpret or amend those policies. Employers should be mindful of the employee relations implications of such a policy. CAUTION: see section below on implications of FFCRA.
May an employer require a nonexempt employee to use vacation time/PTO in less than full-day increments?
Yes, as long as the policy and applicable state and local laws allow it. Caution: see section below on implications of FFCRA.
May an employer require an exempt employee to use vacation time/PTO in less than full-day increments?
Yes, as long as the policy and applicable state and local laws allow it, and the exempt employee’s overall salary/pay is not docked, pay can be taken from the PTO category in less than full-day increments. The DOL recently recognized the permissibility of these practices under federal law in its pandemic guidance posted on March 9, 2020. Caution: see section below on implications of FFCRA.
May an employer dock an exempt employee’s salary during office, plant, or facility closures or other time spent away from work due to COVID-19 if the employee has exhausted all applicable vacation time/sick leave/PTO (including under any applicable paid sick leave laws)?
For exempt employees, it depends on whether the absence is initiated by the employer or the employee. If the absence is initiated by the employee (including for his or her own illness or that of someone for whom he or she is caring), the employer may dock the employee for full-day absences only. If the absence is initiated by the employer (e.g., the employee must stay home for mandatory quarantine period, even though he or she is asymptomatic and willing to come to work), the employer may dock the exempt employee only for full seven-day absences that coincide with the employer’s pay week. Caution: see section below on implications of FFCRA.
Employer’s should consider the impact docking exempt employees’ pay may have on whether employees will voluntarily stay at home when they feel sick, disclose that they feel sick, or disclose that they have traveled to a high-risk area.
May an employer advance any vacation time and/or paid time off to employees to cover COVID-19 absences?
Yes. Employers that do so should consider drafting policies and agreements so that employees are required to repay advanced time off first from newly earned vacation time/PTO. Where not otherwise prohibited by state law, employers may be able to deduct any advanced time off from a departing employee’s vacation time/PTO payout or final paychecks. Caution: see section below on implications of FFCRA.
May an employer adopt a plan to excuse or otherwise not count absences related to COVID-19, whether for an actual illness or a quarantine period?
Yes. Employers should determine any deviation from current policies, including how and when it will apply. Employers should ensure that any such policy is consistently applied.
May an employer count an employee’s time away from work due to the employee’s own COVID-19 illness against the employee in terms of the employer’s attendance policy?
Yes, as long as the illness is not an FMLA-qualifying serious health condition. If it is an FMLA-qualifying serious health condition, the employer should comply with the FMLA’s prohibition on counting these types of absences against an employee.
Notably, there may be times when complications arising from COVID-19 (or COVID-19’s effects on a preexisting medical condition) could be considered a disability, in which case the ADA may be implicated and a reasonable accommodation may be required, such as a modification to the employer’s attendance policy.
May an employer elect to pay an asymptomatic employee who has been quarantined, even if the employer’s policy does not provide for paid leave?
Yes. Employers should determine any deviation from current policies, including how and when it will apply. Employers should ensure that any such policy is consistently applied. Caution: see section below on implications of FFCRA.
May employers change their paid sick leave policy if a number of employees are out and they cannot afford to pay them all?
Federal equal employment opportunity laws do not prohibit employers from changing their paid sick leave policy if it is done in a manner that does not discriminate between employees because of race, sex, age (40 and over), color, religion, national origin, disability, or veteran status.
Be cautious and consult state and local laws. Also, see section below on implications of FFCRA.
In addition, employers should consider that if the workforce is represented by a labor union and the collective bargaining agreement covers sick leave policies, they may be limited in either the manner in which they can change the policy or the manner of the changes themselves because the collective bargaining agreement would be controlling. In a workplace without a collective bargaining agreement, employees may have a contractual right to any accrued sick leave, but not future leave.
Remember, any sick leave policy also has to follow the requirements of the FMLA if employees are covered by the Act, and it needs to be consistent with federal workplace anti-discrimination laws, such as the ADA.
If an employer temporarily closes the business because of a pandemic and chooses to lay off some but not all employees, are there any federal laws that would govern this decision?
The federal laws prohibiting discrimination in the workplace on the basis of race, sex, age (40 and over), color, religion, national origin, disability, or veteran status may apply. Other specific Federal laws that prohibit discrimination on these or additional bases may also govern if an employee is a Federal contractor or a recipient of Federal financial assistance.
Also, the Worker Adjustment and Retraining Notification (WARN) Act helps ensure advance notice in cases of qualified plant closings and mass layoffs. Employers should consult legal counsel to determine if WARN Act requirements may be triggered.
In making layoff determinations, employers may not discriminate against an employee because the employee has requested or used qualifying FMLA leave or because he or she is a past or present member of the United States uniformed service.
Some employees may not be able to come to work because they have to take care of sick family members. May an employer lay them off?
It depends. If an employee is covered and eligible under the FMLA and is needed to care for a spouse, daughter, son, or parent who has a serious health condition, then the employee is entitled to up to 12 weeks of job-protected, unpaid leave during any 12-month period. In states where similar family leave laws apply, covered employers must comply with the federal or state provision that provides the greater benefit to their employees. Caution: see section below on implications of FFCRA.
Second, let’s address the “Musts” important to employers:
Must an employer grant leave to an employee who is sick or who is caring for a family member that is sick?
An employee who is sick or whose family members are sick may be entitled to leave under the FMLA under certain circumstances. The FMLA entitles eligible employees of covered employers to take up to 12 weeks of unpaid, job-protected leave in a designated 12-month leave year for specified family and medical reasons. This may include the flu or COVID-19 where complications arise that create a “serious health condition” as defined by the FMLA. Remember, employees on FMLA leave are entitled to the continuation of group health insurance coverage under the same conditions as coverage would have been provided if the employee had been continuously employed during the leave period. CAUTION: See section below on implications of FFCRA.
Must an employer allow an employee to stay home under FMLA to avoid getting COVID-19?
No, leave taken by an employee for the purposes of avoiding exposure to the flu or COVID-19 would not be protected under the FMLA. The FMLA protects eligible employees who are incapacitated by serious health condition, as may be the case with the flu or COVID-19 where complications arise, or who are needed to care for covered family members who are incapacitated by a serious health condition.
Must an employer allow parents or care givers time off from work to care for the sick or children who have been dismissed from school?
There is currently no federal law covering non-government employees who take off from work to care for healthy children, and employers are not required by federal law to provide leave to employees caring for dependents who have been dismissed from school or child care.
Covered employers must abide by the FMLA as well as any applicable state laws. An employee who is sick, or whose family members are sick, may be entitled to leave under the FMLA. The FMLA entitles eligible employees of covered employers to take up to 12 weeks of unpaid, job-protected leave in a designated 12-month leave year for specified family and medical reasons which may include the flu or COVID-19 where complications arise that create a “serious health condition” as defined by the FMLA. Caution: see section below on implications of FFCRA.
Must an employer provide paid sick leave to employees who are out of work because they have COVID-19, have been exposed to a family member with COVID-19, or are caring for a family member with COVID-19?
Federal law generally does not require employers to provide paid leave to employees who are absent from work because they are sick with COVID-19, have been exposed to someone with the virus or are caring for someone with the virus. That said, pursuant to Executive Order 13706 some federal contractors may be required to provide such leave to employees under certain circumstances, such as if the employee or family member is sick with COVID-19 or seeking care related to the virus. Certain state or local laws may have different requirements, which should be independently considered by employers when determining their obligation to provide paid sick leave. Caution: see section below on implications of FFCRA.
If the leave qualifies as FMLA-protected leave, the statute allows the employee to elect or the employer to require the substitution of paid sick and paid vacation/personal leave in some circumstances.
How many hours is an employer obligated to pay an hourly-paid employee who works a partial week because the employer’s business closed?
The FLSA generally applies to hours actually worked. It does not require employers who are unable to provide work to non-exempt employees to pay them for hours the employees would have otherwise worked. Caution: see section below on implications of FFCRA.
Do employers have to pay employees their same hourly rate or salary if they work at home?
If telework is being provided as a reasonable accommodation for a qualified individual with a disability, or if required by a union or employment contract, then an employer must pay the same hourly rate or salary.
If this is not the case and there is no union contract or other employment contracts, under the FLSA employers generally have to pay employees only for the hours they actually work, whether at home or at the employer’s office. However, the FLSA requires employers to pay non-exempt workers at least the minimum wage for all hours worked, and at least time and one half the regular rate of pay for hours worked in excess of 40 in a workweek. Salaried exempt employees generally must receive their full salary in any week in which they perform any work, subject to certain very limited exceptions. Caution: see section below on implications of FFCRA.
In the event an employer’s business closes and employees are required to work from home, must employers pay those employees who are unable to work from home?
Under the FLSA, employers generally only have to pay employees for the hours they actually work, whether at home or at the employer’s office. However, employers must pay at least the minimum wage for all hours worked, and at least time and one half the regular rate of pay for hours worked in excess of 40 in a workweek. Salaried exempt employees must receive their full salary in any week in which they perform any work, subject to certain very limited exceptions. Caution: see section below on implications of FFCRA.
Families First Coronavirus Response Act (FFCRA):What is it? What does it mean for employers?
FFCRA is intended to be the first tranche of relief to help employees and employers deal with the work-related impacts of COVID-19. The FFCRA has passed by the House of Representatives on March 14, 2020. At this time, the bill has not been signed into law by President Trump. As currently drafted, the bill only applies to employers with fewer than 500 employees. At this time it is unknown whether additional legislation will be forthcoming for employers with over 500 employees. The key provisions of FFCRA for employers to be aware of are:
Emergency Paid Leave Benefits
Employees who worked 30 days before being affected by COVID-19, who do not have access to any paid leave (i.e, sick time, vacation, personal days or who continue to receive pay) or who are receiving unemployment compensation benefits, qualify for a new federal emergency paid leave benefit, administered through the Social Security Administration. Benefits are tax-free.
Eligible employees who must take off 14 or more days from their work due to a qualifying COVID-19 related reason will receive benefits for up to three months. Eligible employees include those who are:
- diagnosed with COVID-19
- quarantined (including self-imposed quarantine), at the instruction of a health care provider, employer or government official
- caring for another person who has or is under a quarantine for COVID-19
- caring for children or other individuals who are unable to care for themselves due to the COVID-19-related closing of their school, child-care facility or other care program.
Benefits are capped at two-thirds of employees’ average monthly wages, up to $4000. Benefits are available for leave occurring from January 19, 2020 through one year after the bill is signed into law. Benefits may be paid retroactively. Online, phone or mail applications for benefits can be filed up to six months after enactment.
Employees’ existing benefits rights are protected, including the right to state or local paid-leave benefits, and greater benefits that are allowed under union contracts or employers’ benefit programs. However, benefits paid under this law are reduced dollar-for-dollar by the amount of any state or private paid-leave benefits employees receive.
Paid Sick Days For Personal And Family Care
The legislation would also grant seven days of paid-sick leave for use in situations not associated with a public health emergency.
Employees would be eligible for one hour of paid sick leave for every 30 hours they work, up to seven days (56 hours) per year. Exempt employees are presumed to work 40 hours a week. Employers may set higher limits if they choose. Employers may front-load employees’ leave time. Employers with paid-leave policies that are at least as generous do not have to extend additional paid time off to employees.
Employees begin accruing time on their first day of work and can use time beginning on the 60th calendar day. Unused accrued leave is carried over into the next year, up to 56 hours. Employers do not have to cash out the accrued leave of employees who terminate, but leave must be reinstated if employees are rehired within 12 months.
Paid leave may be used for absences resulting from:
- employees’ physical or mental illness, injury or medical condition
- employees’ obtaining professional medical diagnosis or care or preventative medical care
- domestic violence, sexual assault or stalking
- closure of employees’ workplace by a public official or at the employer’s discretion, due to a public health emergency, regardless of whether employees have contracted the communicable disease
- the need to care for children, parents, spouses, domestic partners or other individuals related by blood or affinity because their schools or places of care are ordered closed by a public health official or because a public health official determines that presence in the community of the person receiving care may jeopardize the health of others
- a public official’s or health-care provider’s determination that employees’ presence in the community may jeopardize the health of others during a public health emergency, regardless of whether the employees have contracted the communicable disease.
Employers must notify employees of these provisions and include them in employee handbooks.
Employers cannot interfere with or discriminate against employees who take paid leave.
As currently drafted, the bill provides tax credits to assist employers in making leave payments.
Additional Leave For Public Health Emergencies
Employees are entitled to additional paid sick time due to a public health emergency. Full-time employees are entitled to an additional 14 contiguous days off with pay; part-time and hourly employees are entitled to paid sick time equal to the number of hours they were scheduled to work or, if they were not scheduled to work, the number of hours they regularly work in a 14-day period. Leave may be used for any of the reasons outlined above.
Employees may first use this additional sick time, before they use their accrued sick time.
Reimbursements For Small Employers
Employers with 50 or fewer employees may be reimbursed by the Treasury Department for paying employees who take additional sick time during a public emergency. Employers must first submit affidavits to the secretary of labor attesting that they provided additional paid sick time and submit records to back up their affidavits.
Coverage For Testing For COVID-19
Group health plans and insurers must waive cost sharing or prior authorization for employees who get tested in doctors’ offices, urgent care centers and hospital emergency rooms.
States will receive an immediate cash infusion of $1 billion in emergency grants to help defray the cost of administering unemployment benefits for employees who lose their jobs due to COVID-19.
In order to qualify for this money, states must require employers to provide notification of potential UI eligibility to laid-off workers and to ensure employees have at least two ways to apply for benefits (e.g., online and phone).
If you have any questions, please contact Jeffrey Adler or Mary-Jo Rebelo.
Jeffrey Adler, Esq.
Co-Chair, Employment Practices Liability Practice Group
Mary-Jo Rebelo, Esq.
Co-Chair, Employment Practices Liability Practice Group
The contents of this communication is intended to convey general information only and not to provide legal advice or opinions.