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COVID-19: Employment FAQs

Client Alert

Authors: Lee E. Tankle, Tracey E. Diamond and Susan K. Lessack

3/16/2020
COVID-19: Employment FAQs

These FAQs have been revised as of May 18, 2020.

As the COVID-19 coronavirus continues to present challenges to employers worldwide, we have created this frequently asked questions document to answer some of the most common questions we have been hearing from clients, friends and family members. This general FAQ is applicable as of May 18, 2020. The COVID-19 situation is changing rapidly, and we will make every effort to update this document with applicable information when appropriate. If you have any questions, please contact any member of the Pepper Hamilton or Troutman Sanders Labor and Employment Practice Groups.

The information below incorporates guidance from the Centers for Disease Control and Prevention (CDC), but is not intended to be a substitute for professional medical advice, diagnosis or treatment.

EMPLOYEE SAFETY

What should an employer do if an employee comes to work exhibiting coronavirus symptoms? (Revised May 18, 2020)

If an employee comes to work displaying coronavirus symptoms (fever, shortness of breath, cough or other flu-like symptoms), stay calm. Immediately separate the employee from other employees, and send the employee home until the employee has been fever-free without the use of fever-reducing medications for at least three full days (72 hours); the employee’s symptoms have improved; and either at least 10 days have passed since the employee’s symptoms first appeared or, if the employee is tested to determine if the employee is still contagious, the employee has received two negative tests in a row, at least 24 hours apart. If the employee came into close physical contact with other employees during their time in the workplace (i.e., a distance of less than six feet for several minutes), except for businesses that are deemed critical infrastructure or essential businesses (see Q&A below), send those employees home to self-quarantine for 14 days. If any of those employees develop symptoms, they should remain at home until they have been fever-free without the use of fever-reducing medications for at least three full days (72 hours); the employee’s symptoms have improved; and either at least 10 days have passed since the employee’s symptoms first appeared or, if the employee is tested to determine if the employee is still contagious, the employee has received two negative tests in a row, at least 24 hours apart. Employers should also conduct a deep clean of the ill/potentially ill employee’s workspace after waiting for at least 24 hours after the employee last came into contact with the workspace. Be sure to stay up to date on the latest recommendations of the CDC and local health authorities.

What should an employer do if an employee is diagnosed with COVID-19 or a presumptive case of COVID-19?

In the unlikely event the employee is at work when the employee receives the news, send the employee home immediately and follow the procedures outlined above. If the employee is not in the workplace, notify all potentially impacted employees of their potential exposure — meaning all employees who were in close contact with the infected employee (within six feet for several minutes) during the prior 14 days. Except for businesses that are deemed critical infrastructure or essential businesses (see Q&A below), send those employees home to self-quarantine for a period of at least 14 days. Employers should also conduct a deep clean of the diagnosed/potentially diagnosed employee’s workspace after waiting for at least 24 hours after the employee last came into contact with the workspace. Employers should not reveal the identity of the infected employee unless the infected employee has provided permission to share his or her name. Like with any illness, the reason for an employee’s absence is confidential and should not be shared with others. Depending on the nature of your workplace, you may also want to inform any potentially exposed customers, vendors and/or other building tenants.

What should a business do if an employee informs an employer that the employee has come in contact with an individual diagnosed with COVID-19 or a presumptive case of COVID-19? (Revised May 18, 2020)

Follow the same steps as above. Except for businesses that are deemed critical infrastructure or essential businesses (see Q&A below), send the employee home to self-quarantine for 14 days and, if they develop symptoms, until the employee has been fever-free without the use of fever-reducing medications for at least three full days (72 hours); the employee’s symptoms have improved; and either at least 10 days have passed since the employee’s symptoms first appeared or, if the employee is tested to determine if the employee is still contagious, the employee has received two negative tests in a row, at least 24 hours apart. You should follow the same course of action with any employees with whom the reporting employee came in close contact over the prior 14 days.

Do these same rules apply for employees working in critical infrastructure or other essential businesses?

On April 8, 2020, the CDC issued interim guidance regarding “critical workers,” including but not limited to workers in food/agriculture, critical manufacturing, informational technology, transportation and energy. “To ensure continuity of operations of essential functions, CDC advises that critical infrastructure workers may be permitted to continue working following potential exposure to COVID-19, provided they remain asymptomatic and additional precautions are implemented to protect them and the community.” CDC defines a “potential exposure” as “being a household contact or having close contact within 6 feet of an individual with confirmed or suspected COVID-19. The timeframe for having contact with an individual includes the period of time of 48 hours before the individual became symptomatic.” CDC advises that exposed but asymptomatic employees should be subject to daily prescreenings (including temperature checks), regular monitoring, mask wearing, social distancing, and disinfection/cleaning of their workspaces. Unions and worker safety groups have protested that this guidance, which applies a less stringent standard to critical infrastructure workers, fails to adequately protect those workers. As there is still much to be learned regarding COVID-19, employers may wish to adopt a more conservative approach to handling exposed but asymptomatic critical infrastructure employees. Doing so could (1) more adequately protect your workforce by reducing the likelihood that COVID-19 will spread in the workplace, (2) demonstrate to employees that you take their safety seriously, and (3) reduce the likelihood that you will face a workers’ compensation claim alleging that an employee became infected in the workplace.

What should an employer do if an employee wants to wear a face mask in the workplace?

Some state and local jurisdictions now require workers to wear face masks in certain establishments, such as retail stores. The CDC also recommends wearing a cloth mask in public settings where other social distancing measures are difficult to maintain. Unless you are in a jurisdiction and business where face masks are required, it is up to the employer whether to mandate the use of face masks. However, it is a good idea to encourage (and provide) face masks to employees as an adjunct to social distancing measures.

Can employers take employee temperatures at work?

Yes. Per the EEOC in a Q&A issued on March 18, 2020: “Generally, measuring an employee's body temperature is a medical examination. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees' body temperature. However, employers should be aware that some people with COVID-19 do not have a fever.” Employers that take employees’ temperatures should do so for all employees in the same job category.

Can we make thermometers available to employees for them to voluntarily take their temperature? (Revised April 13, 2020)

Yes. Employers should not record employee temperatures. Employers should also provide sufficient tools to make sure thermometers are properly sanitized to lower the risk of passing infection to other employees. In some jurisdictions, employers must take employee temperatures and may not substitute this duty by having employees take their own temperatures.

Can we administer a COVID-19 diagnostic test or antibody or antigen test to employees before permitting employees to enter the workplace? (Revised May 11, 2020)

Yes. In guidance issued on April 23, 2020, EEOC stated that employers may test employees for the COVID-19 virus prior to entering the workplace because an individual with COVID-19 presents a direct threat to the health of others in the workplace. The EEOC cautions that employers should ensure that the tests are accurate and reliable and consult guidance from the U.S. Food and Drug Administration about what may be considered safe and accurate testing. EEOC also notes that employers “may wish to consider the incidence of false-positives or false-negatives associated with a particular test” and “that accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire the virus later.” EEOC has not stated that employers may administer antibody or antigen tests. Because the FDA has stated that antibody tests do not determine whether an individual has COVID-19, we recommend that employers not require antibody or antigen tests at this time.

How should I handle employee medical information? (Revised April 13, 2020)

If an employer receives confidential medical information about an employee, the employer should take all reasonable steps to protect the employee’s privacy and medical information. In general, employers are required to maintain all information about employee illnesses as a confidential medical record. If employers have hardcopy or electronic copies of employee medical files, those files should be kept separate from the employee’s other personnel records and access to the medical records should be limited. These files should be kept in a secure, locked filing cabinet or a password-protected electronic file.

Where else can I get workplace safety tips?

The Occupational Safety and Health Administration (OSHA) has published Guidance on Preparing Workplaces for COVID-19.

DISCRIMINATION AND HARASSMENT ISSUES

Is COVID-19 a disability under the Americans with Disabilities Act (ADA)?

Maybe. Under the ADA, a disability is (1) a physical or mental impairment that substantially limits one or more major life activities, (2) a record of such impairment, or (3) being regarded as having an impairment. A normal, uncomplicated case of COVID-19 (similar to the flu) is unlikely to be considered a “disability” within the meaning of the ADA because it is unlikely to limit one or more major life activities and is typically transitory. Should an employee develop pneumonia or begin to have issues with breathing, COVID-19 might be considered a disability. However, it is likely that those with COVID-19 will be “regarded” as having an impairment. The standard for establishing a disability is low, so employers would be wise to treat COVID-19 as a disability and focus their efforts on what needs to be done with respect to that disability.

Can an employer terminate an employee because they have coronavirus or if the employer believes they have coronavirus?

No. You cannot discipline, terminate or otherwise discriminate against an employee simply because he or she has an actual or presumptive case of COVID-19.

Can an employer require older/disabled/pregnant employees to work from home given that COVID-19 may present a higher risk to certain segments of the population? (Revised May 18, 2020)

No. Employers cannot treat people differently based on their age, pregnancy, whether they have an underlying health condition or any other protected category, such as national origin. Employers should require people to work from home only if they require it for everyone in the employee’s job class or if the employee advises that he or she is sick or has been exposed to the virus. If an employee asks to work from home because he or she is in a high-risk category as defined by the CDC, such as having an underlying health condition, pregnancy or being over age 60, then the employer may (but is not required to) grant that request.

As stay-at-home orders are lifted and businesses begin to reopen their doors, many employers may be concerned that some of their employees have medical conditions that might place those employees at higher risk for severe illness if they get COVID-19. In recent guidance, the EEOC stated that if an employee does not request a reasonable accommodation, the employer does not need to take action with regard to these employees. Furthermore, if an employer is concerned about an employee’s health being jeopardized when the employee returns to work, an employer can prohibit an employee from working only if the employee presents a direct threat to him or herself. To present a direct threat, there must be a significant risk of substantial harm to an employee’s own health. A direct threat analysis requires an individualized assessment of a variety of factors, including an employee’s disability, the potential harm, the likelihood the potential harm will occur, the imminence of a potential harm, and the likelihood an employee will be exposed to COVID-19 at the worksite. For the majority of employees, it is unlikely that the direct threat test will be met. Employers considering prohibiting an employee from entering the workplace due to concerns about an employee’s condition that may make them more susceptible to severe COVID-19 illness should consult with legal counsel before taking any action.

How could COVID-19 implicate employer nondiscrimination policies?

COVID-19 originated in China and, sadly, there have been reports of mistreatment and harassment of Asian Americans and other people of Asian descent. Title VII of the Civil Rights Act prohibits discrimination against individuals based on national origin. Employers cannot discriminate against employees based on where they are from or whether they have ancestors from a particular country. Employers should also be on the alert for co-workers who may make inappropriate or harassing comments to Asian employees and strictly enforce nondiscrimination and anti-harassment policies.

LEAVE OF ABSENCE ISSUES

Can we require an employee to provide a note from a doctor’s office if the employee is out of work due to an illness?

Yes, if this is your typical policy or practice and you follow that policy or practice consistently. However, the CDC and other government agencies are suggesting that employers consider waiving the requirement to provide doctor’s notes because they anticipate that health care providers will be inundated with requests for those notes.

If an employee is unable to come to work because his or her child’s school is closed, do I have to hold his or her job? (Revised March 19, 2020)

Yes. The Families First Coronavirus Response Act was signed by President Trump on March 18 and will become effective on April 1. If you have fewer than 500 employees and the employee has been employed for at least 30 days, amendments to the Family and Medical Leave Act (FMLA), called the Emergency Family and Medical Leave Expansion Act (EFMLEA), will expand the coverage of the FMLA to allow up to 12 weeks of partially-paid job-protected FMLA leave to be used for employees who are unable to work or telework because they need to care for a child whose school or place of care has been closed or whose childcare provider is unavailable, due to coronavirus. The first 10 days of EFMLEA leave is unpaid (but will likely be covered by the Emergency Paid Sick Leave Act discussed below). After 10 days, an employer must provide paid leave to employees for the balance of their up to 12 total weeks of leave at an amount not less than two-thirds of the employee’s regular rate of pay based upon the number of hours the employee would normally be expected to work. However, employers are not required to pay more than $200 per day and $10,000 in the aggregate.

If an employee is unable to work because the employee or an immediate family member has COVID-19, is the employee entitled to be paid during his or her leave of absence? (Revised March 19, 2020)

It depends. Your employees might be entitled to pay under a state or local paid sick leave law if they work in a state or locality that has such a law. If an employee has sick leave or other paid time off available under your policies, they  should be able to use that time during their absence. Some employers also have decided to offer a supplemental bank of paid leave days. In addition, on March 18, President Trump signed the Families First Coronavirus Response Act (which becomes effective on April 1), a law that includes the Emergency Paid Sick Leave Act (EPSLA). Under the EPSLA, employers with fewer than 500 employees will have to provide 80 hours of paid sick leave to full-time employees (and a prorated number of days to part-time employees). Under the legislation, employees would be able to take 80 hours of paid leave at their regular rate of pay or the minimum wage, whichever is greater, if they are unable to work or telework because they (1) are subject to a quarantine or isolation order, (2) have been advised by a health care provider to quarantine, or (3) are experiencing symptoms or seeking a medical diagnosis of coronavirus, or pay at two-thirds of their regular rate or the minimum wage, whichever is greater, to (1) care for an individual for such purposes; (2) care for a child because the child’s school or place of care has been closed or because the childcare provider is unavailable due to coronavirus; or (3) the “employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.” Paid leave is limited to $511/day or $5,110 in the aggregate for those instances when employees are entitled to pay at their regular rates, and to $200/day or $2,000 in the aggregate for those instances when employees are entitled to pay at two-thirds of their regular rate. After exhausting the 10 days of paid leave under the Emergency Paid Sick Leave Act, those employees who cannot work or telework because they need to care for a child because the child’s school or place of care has been closed or because the childcare provider is unavailable will be entitled under the Emergency Family and Medical Leave Expansion Act to be paid for the balance of their up to 12 weeks leave, at two-thirds of their regular rate, as described above.

Where can an employer get more information about the FFCRA?

The Department of Labor provides a variety of resources about the FFCRA on its website.

PAY ISSUES

Do we need to pay employees who are being quarantined, whether mandatory or self-quarantine, or who are sick? What about employees who are caring for a sick family member? (Revised March 29, 2020)

Leaving aside the issue of paid sick leave and paid leave under Families First Coronavirus Response Act, whether an employer is obligated to pay workers who are not at work depends on whether the employee is classified as exempt or nonexempt. A nonexempt worker (i.e., someone who is eligible for overtime pay), must only be paid for actual time worked. Generally, exempt employees must be paid in full-week increments. So, if the business closes and the employee has worked any time at all in that week, the exempt employee must be paid for the full week. The employer may require the exempt employees to take vacation and debit their leave bank account, provided the employees receive in payment an amount equal to their guaranteed salary. There are some exceptions to the general rule that exempt employees must be paid in full-week increments. For example, an employer is not required to pay an exempt employee when the employee is absent from work for a whole day because he or she is sick and has exhausted all permitted paid sick days under an established sick leave policy, or when the employee is on leave under the FMLA. In addition, an employer does not have to pay an exempt employee when an employee is absent from work for a whole day because of personal issues that are not because of the employee’s own sickness or disability, such as if they are having issues with public transportation or childcare issues.  However, as explained in a recent Client Alert, employees may be eligible for paid leave under the Families First Coronavirus Response Act.

If we become short-staffed due to the pandemic, can we ask employees to volunteer to help out?

No. The Fair Labor Standards Act (FLSA) has strict requirements with respect to volunteers, and employees may not waive their right to be paid for time worked. There are certain exceptions when the employee is volunteering to do something that is other than his or her normal work, such as at an outside community service event, volunteer day or pro bono work. The work must be purely voluntary, take place outside of regular work hours, and participation may not bring direct economic benefit to the business.

Are workers affected by the coronavirus eligible for unemployment compensation benefits? (Revised March 29, 2020)

Yes. See our recent Client Alert on this issue.

WORKPLACE MANAGEMENT

How can an employer plan for an instance where the employer has too few employees?

Employers need to consider what they will do if there are large numbers of employees who cannot come to work because (1) they have COVID-19, (2) a family member has COVID-19, or (3) they are otherwise unable to get to work because public transportation or schools have closed. Now is the time for employers to determine which positions and functions in an organization are critical to operations and how an employer will operate with limited staff. An employer may need to consider taking steps like (1) adjusting schedules to ensure essential functions are completed, (2) giving employees different work assignments, (3) extending hours or requiring mandatory overtime from healthy employees, if necessary, and (4) requiring employees to work at different locations if the employer has multiple locations. If an employer needs assistance with planning, the EEOC issued guidance during the H1N1 pandemic in 2009 that provides an “ADA-Compliant Pre-Pandemic Employee Survey” permitting employers to question employees about their ability to get to work in the event of a pandemic.

How can an employer plan for an instance where the employer has too many employees?

If COVID-19 leads to a drop in business due to a disruption in the supply chain or reduced demand, an employer may need to make tough decisions regarding their employee rosters. Employers may consider furloughing employers. In such a case, employers would lay off employees (without pay) for a brief period of time. Employers can also consider reducing pay for some or all employees to avoid furloughs — however, some states have laws that require employers to provide employees with a certain amount of notice prior to a reduction in pay. Unfortunately, some employers may need to consider permanently reducing their workforce and terminating employees. If an employer is required to take this step, it should consider whether it will provide any severance and whether it will need to comply with federal or state WARN Acts — although the federal WARN Act (and many mini state WARN Acts) include exceptions for disasters and unforeseeable business circumstances.

What should an employer do if a healthy employee is scared to come to work because of fears about COVID-19?

Under the Occupational Safety and Health Act, employees can refuse to work if “imminent danger” exists. The “imminent danger” threshold is a difficult threshold to meet as it requires objective evidence of imminent death or physical harm. This is unlikely to be the case in most work environments, but employers should examine each workplace on a case-by-case basis. Employers should also be careful if employees act/protest together in an effort to avoid certain work tasks due to fears of the virus. This activity could be considered engagement in protected concerted activity and protected by the National Labor Relations Act. If an employer punishes this type of concerted activity, the employer could face an unfair labor practice charge.

Can an employer require employees to telecommute?

Yes. An employer may encourage or require employees to telecommute to control the spread of the virus. Many companies are making plans to have at least some of their workforce telecommute in the event that the virus impacts their ability to come to work, and some employers already have mandated a telecommuting practice. Additionally, allowing a sick employee to work remotely in lieu of taking time off may be considered a reasonable accommodation for a disability under the ADA if the employee can perform the essential functions of his or her job while telecommuting. Note, however, that the ADA does not require employers to lower quality or productivity standards as a reasonable accommodation.

What issues should I be thinking about when putting in place a telecommuting arrangement?

There are several issues and processes that you will need to institute to ensure that a remote work arrangement is successful. For example, nonexempt employees must be paid at least minimum wage for time worked and overtime for hours worked over 40 in a workweek (or as otherwise required by state law). Therefore, it will be important to determine a way to track all time worked by your nonexempt workforce while they are working remotely so that you can ensure that you are paying them accurately. Employers also will want to put a process in place to ensure that meal and rest breaks are taken in states where these breaks are mandatory. Other considerations include ensuring that employees have the proper equipment to perform their jobs from home; setting performance expectations regarding work schedules, responsiveness, productivity and communication; ensuring that appropriate protections for confidentiality and data security are in place; and discussing with employees whether they have the appropriate setup for a work-from-home arrangement, especially if the need arises on short notice. In some states, such as California, an employee may be eligible for reimbursement of business expenses, such as internet charges, supplies, etc.

The material in this publication was created as of the date set forth above and is based on laws, court decisions, administrative rulings and congressional materials that existed at that time, and should not be construed as legal advice or legal opinions on specific facts. The information in this publication is not intended to create, and the transmission and receipt of it does not constitute, a lawyer-client relationship.

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