Last updated on February 19, 2021
Under the Consolidated Appropriations Act of 2021, employers have the wherewithal to voluntarily extended FFCRA and its paid leave provisions for leave taken up to March 31, 2021; which would likewise enable them to obtain tax credits for leave taken during that time. However, if an employer chooses not to follow that path, consideration may be given to allowing employees greater use of their existing paid time off policies, providing unpaid leaves of absences or establish remote work arrangements with their employees.
According to the Centers for Disease Control, an employee can be with others after: at least 10 days since symptoms first appeared and at least 24 hours with no fever without fever-reducing medication and other symptoms of COVID-19 are improving. Additionally, the CDC also indicates that if an employee had severe illness from COVID-19 (i.e. admitted to a hospital and needed oxygen), their healthcare provider may recommend the need to stay in isolation for longer than 10 days after the symptoms first appeared (possibly up to 20 days) and the need to finish your period of isolation at home.
While many employers have adopted cleaning and hygiene measures in support of state reopening guidelines, it is equally important for employers to sustain those initiatives through leadership and hold employees accountable if they are not practicing those responsibilities on their part (whether it is regularly handwashing, cleaning or deep cleaning high touch surfaces etc.). Additionally, managers and supervisors should ensure that employees do not come to work ill or showing symptoms of being sick.
In that regard, being more flexible with attendance and the use of paid time off and promoting remote work arrangements can all play a role in stopping the spread of germs at work by removing the financial or economic incentive of coming into the workplace when they are not feeling 100%.
In short, you should not disclose the identity of someone who tested positive to co-workers. However, there may be a need to disclose that there was a positive case in the workplace to those who may have come into close contact and to explain the need for next steps (which may include for them to quarantine, seek guidance from their health care provider, go get tested, and clean any working areas that may have been compromised).
For those who were not in close contact, communicating about the fact that there was an exposure (again without disclosing the identity of the individual), may provide an opportunity of demonstrating transparency, and displaying your efforts of implementing your COVID-19 plans.
The Equal Employment Opportunity Commission has stated that employers may ask all employees who will be physically entering the workplace if they have COVID-19 or symptoms associated with COVID-19, and ask if they have been tested for COVID-19.
There should be a discussion with the employee to ensure that their close contact indeed meets the criteria set forth by the Centers for Disease Control (CDC) (specifically that they were within 6 feet of someone who has COVID-19 for a total of 15 minutes or more; they provided care at home to someone who is sick with COVID-19; they had direct physical contact with the person (hugged or kissed them); they shared eating or drinking utensils; or they sneezed, coughed, or somehow got respiratory droplets on themselves).
If that is confirmed, then the employee should be removed from the workplace and they should quarantine consistent with CDC guidelines (namely, they should stay home for 14 days after their last contact with a person who has COVID-19, watch for fever (100.4◦F), cough, shortness of breath, or other symptoms of COVID-19, and if possible, stay away from others, especially people who are at higher risk for getting very sick from COVID-19. Alternatively, as a means of reducing the 14 day quarantine period, affected employees can either return to work either after day 10 without testing or after day 7 after receiving a negative test result (test must occur on day 5 or later). Should these alternatives be pursued instead, employees should still watch for symptoms until 14 days after exposure has lapsed).
If an employee is ill, you can require that they go home (or stay at home and not come into work if they are already home).
You can require a fitness for duty that clears an employee to return to work. However, depending upon state law (specifically state sick leave laws) and the duration of time away from work, you may be precluded from obtaining documentation that explained why they were away from work or as a condition of excusing the time that had been taken.
An employer is only required to pay nonexempt employees for the hours of work that they have performed. Sick time is not considered hours worked and therefore there is not an obligation to pay. Whether they may be eligible to be paid through the use of vacation, sick, personal or some other paid time off (such as if the employer had voluntarily extended FFCRA in accordance with the Consolidated Appropriations Act of 2021 until March 31st) will be dependent upon whether they have such time available under a company’s policy or still available under the FFCRA extension that the employer provided.
It depends. FMLA covers absences due to incapacity of continuing treatment of a serious health condition. This definition can include overnight stays in a hospital, being treated two or more times by a health care provider, or being treated by a health care provider on at least one occasion which results in a regiment of continuing treatment under the supervision of a health care provider. Therefore, depending upon the situation, if those factors were not present, it may be that the absence is not covered under FMLA.
Working from home may be a best practice in order to keep sick people out of the workplace while maintaining productivity levels. However, do you have to provide it? That depends upon the situation. For employees with a disability, remote work can be a reasonable accommodation under some circumstances (if the essential functions of the job could be effectively performed). The Equal Employment Opportunity Commission has further stated that employees who have been advised to stay home by their health care provider due to being at “high risk” should they contract COVID-19 due to an underlying health condition would also be entitled to reasonable accommodations as well (whether that involves remote work or a mere leave of absence would depend upon the facts).
With states enacting travel restrictions, employers may have concerns that travel may create additional time off needs due to state imposed quarantining obligations associated with the travel. Additionally, states that instituted their initial travel restrictions continue to re-evaluate and change them both in terms of the states that are covered under those restrictions as well as the exceptions to them as well. Accordingly, employers should revisit time off requests and have conversations with employees in order to evaluate whether time off plans may be prone to being enlarged due to travel quarantining considerations, and decide whether changes to how they handled those initial requests and requests moving forward.
Similar to asking employees if they have COVID-19, this would constitute a medical exam or inquiry which can be permitted under EEOC guidelines provided that it is job related and consistent with business necessity (which due to the pandemic is the case) and it is done consistently with all employees.
Employers should understand that bringing employees back to work where they have become accustomed to working remotely can come with challenges, uncertainty and fear that they may have in being with others. Other employees may approach returning to work enthusiastically. As a result, managers need to understand that there could be interpersonal conflicts getting employees to work together once again. Reacquainting with safety and COVID-19 plans, reaffirming social distancing, safety and hygiene protocols, being both proactive and responding to employee concerns moving forward should all be thought through before bring employees back. They will be looking to you to understand the question of “why now?”. Be prepared to respond to that on all levels while addressing the safety concerns of why it can be done in an effective manner.
COVID-19 testing is a medical examination that is permissible if it job related and consistent with business necessity. In light of the COVID-19 pandemic, it is permissible to determine if employees entering the workplace have COVID-19 because they could pose a direct threat to others.
Mask wearing is not only recommended by CDC and OSHA but many states have enacted orders that make it a requirement in some instances (typically where social distancing is not possible). Accordingly, employers can and should require employees to wear masks in accordance with the state guidelines.
Whether it makes sense for an employer to require mask wearing at all times may be dependent upon such factors as the layout of the facility, the employee population in general and their health and well being, the amount of people coming back to work and their concerns about coming back to work as well as the culture of the organization.
In other words, would continuous mask wearing in the workplace be welcomed overall in allaying the concerns of workers or will it be perceived as a greater burden?
Absent underlying medical conditions or other factors that would put them at high risk (and thereby warrant some reasonable accommodation in the alternative), the answer to that question is no.
Employers should focus efforts on education (including what the company has done from a safety perspective while the employee has been away from the workplace), being open to feedback and addressing any and all questions or concerns to reduce or remove that fear altogether.
Unless there is a need as a reasonable accommodation due to a medical condition, the answer is no – that is entirely up to your organization.
New hire paperwork does not need to be filled out if employees have been on a leave of absence or furlough. If they were terminated from employment, then there would a need to do so.
No. Antibody testing is not permissible as it is a medical examination that is not considered job related and consistent with business necessity (as it does not establish whether the person currently has the virus but rather merely indicates whether they have a previous history of having the virus).
A good remote work program will generally address productivity standards, hours of work, how and when employees should be in contact with their manager or subordinates, and office expenses.
For instance, your policy might require that employees are available by phone and messaging app during their regular in-office hours, that they meet all deadlines and maintain client contacts per usual, and that they check in with their manager at the close of each workday to report what they have accomplished. Be sure to let employees know whom to contact if they run into technical difficulties at home.
You’ll also want to specify how expenses related to working from home will be dealt with. If you don’t expect there to be any additional expenses involved, communicate this. You don’t want employees thinking this is their chance to purchase a standing desk and fancy ergonomic chair on your dime. Employers should consider whether employees will incur reasonable and necessary expenses while working from home. Some states mandate reimbursement for these kinds of expenses, but it’s a good practice to cover such costs even if it’s not required by law.