Business alerts, | Mar 18, 2020

What Employers Need to Know About COVID-19

The COVID-19 crisis is unprecedented.  It has created complex challenges to employers who must comply with numerous employment laws and regulations. This document has been developed to address frequently asked questions (FAQs) about the COVID-19 coronavirus and provide guidance from federal agencies including, but not limited to, the Center for Disease Control and Prevention (“CDC”), the Equal Employment Opportunity Commission (“EEOC”) and the U.S. Department of Labor (“ DOL”).  As always, state and local laws may apply resulting in different conclusions.

Because these are not normal times and the crisis is constantly evolving, employers are encouraged to do their best to stay informed of legal developments on a daily basis.  The end of this document includes links to government sites with helpful information.

This FAQ is based upon federal and Georgia law. Several states and municipalities have enacted their own laws that should be considered whenever making decisions in a jurisdiction outside of Georgia. 

Q1: May an employer encourage or require asymptomatic employees to telework (i.e., work from an alternative location, such as home)?

A: Yes. The CDC and EEOC consider telework an effective infection-control strategy.  

Q2: May an employer send employees home if they display COVID-19-like symptoms?

A: Yes. The CDC recommends that employees who have symptoms of acute respiratory illness  stay home and not come to work until they are free of fever (100.4° F [38.0° C] or greater using an oral thermometer); signs of a fever; and any other symptoms for at least 24 hours, without the use of fever-reducing or other symptom-altering medicines (e.g., cough suppressants).  The EEOC has also stated  that the Americans with Disabilities Act (“ADA”) does not interfere with employers following this advice.

Q3: How much information may an employer request from employees who report feeling ill at work or who call in sick?

A: Employers may ask such employees if they are experiencing COVID-19-like symptoms, such as fever or chills and a cough or sore throat.  However, employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.  The EEOC also states that asking about symptoms is permissible and does not constitute a disability-related question under the ADA.

Q4: May an employer take its employees’ temperatures to determine whether they have a fever?

A: Generally, measuring an employee’s body temperature is a medical examination. The EEOC recently opined that 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. Thus, taking an employee’s temperature may not be of any real value.

Q5: May an employer ask asymptomatic employees if they have a medical condition that the CDC says could make them especially vulnerable to COVID-19 infection?

A: No. Such inquiries are prohibited by the ADA. Note: If an employee voluntarily discloses (without a disability-related inquiry) that he has a specific medical condition or disability that puts him or her at increased risk of COVID-19 complications, the employer must keep this information confidential. The employer may ask the employee to describe the type of assistance the employee thinks will be needed (e.g. telework or leave for a medical appointment).

Q6: When an employee returns from travel, must an employer wait until the employee develops COVID-19 symptoms to ask questions about possible COVID-19 exposure?

A: No, these are not disability-related inquiries. If the CDC or state or local public health officials recommend that people who visit specified locations remain at home for several days until it is clear they do not have COVID-19 symptoms then an employer may ask whether employees are returning from these locations, even if the travel was personal.

Q7: May an employer require its employees to adopt infection-control practices, such as regular hand washing, at the workplace?

A: Yes. Requiring infection control practices, such as regular hand washing, coughing and sneezing etiquette and proper tissue usage and disposal, does not implicate the ADA.

Q8: May an employer require its employees to wear face masks, gloves, or gowns?

A: Yes. An employer may require employees to wear personal protective equipment during a pandemic. However, where an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves, or gowns designed for individuals who use wheelchairs), the employer should provide these, absent undue hardship.

Q9: Is an employer obligated to provide masks to its employees?

A: No. While the CDC has recommended that health workers wear masks, it has not made similar recommendations to the general public. The CDC insists that only individuals who show COVID-19-like symptoms need to wear them.

Q10: May an employer ask an employee why he or she has been absent from work if the employer suspects it is for a medical reason?

A: Yes. Asking why an individual did not report to work is not a disability-related inquiry. An employer is always entitled to know why an employee has not reported for work.

Q11: What should employers do if an employee is confirmed to have COVID-19?

A: The infected employee should be sent home. Fellow employees who may have been exposed should be notified, sent home and referred to CDC guidance for how to conduct a risk assessment of their potential exposure. Employers must maintain the confidentiality of the exposed employee as required by the ADA. In other words, employers should inform employees that possible exposure has occurred in the workplace without disclosing any identifying information about the individual who tested positive.

Q12: What should employers do if an employee has a suspected but unconfirmed case of COVID-19?

A: In this situation, employers should notify and send home employees who may have been exposed.  Employers should also share that the employee with the possible infection has not tested positive, but for safety reasons the company is taking this precautionary measure.

Q13: Should employers require returning employees to provide a physician’s note?

A: There is debate about this. Employer may lawfully require a return to work note or certification. For example, if the employee’s illness is a “serious health condition” under the federal Family Medical Leave Act (FMLA), the employer would be able to require a return-to-work note. COVID-19 clearly will qualify as a serious health condition if complications arise from the illness leading to, for example, hospitalization or incapacitation. Under the Families First Coronavirus Response Act (Effective April 1), employees may be required to provide an employer with documentation in support of paid sick provided by the Act. Also, according to the EEOC, such inquiries are permitted under the ADA either because they would not be disability-related or, if the COVID-19 were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees. On the other hand, the CDC recommends NOT requiring a healthcare provider’s note for employees who are sick with acute respiratory illness to validate their illness or to return to work. This is due to the concern that healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely way.  Therefore, employers should consider new approaches, such as reliance on local clinics to provide a form, a stamp or an e-mail to certify that an individual does not have COVID-19.

Q14: Is an employer obligated to provide leave to an employee with a family member infected with COVID-19?

A: Employers covered by FMLA are obligated to provide job-protected unpaid leave and other benefits to eligible employees who miss work due to a serious health condition of the employee or the employee’s close family member.  As stated above, COVID-19 will clearly qualify as a serious health condition if complications arise from the illness leading to, for example, hospitalization or incapacitation. Even if the symptoms are mild, it would be very risky to take the position that COVID-19 is not a serious health condition. In addition, employers covered by the Families First Coronavirus Response Act are required to provide paid Sick Leave for specific reasons covered by the Act, including caring for an individual who is subject to government quarantine or isolation order or has been advised by a health care provider to self-quarantine.

Q15: Does an employer have to pay Non-Exempt employees during business closures?

A: Under the FLSA, employers are obligated to pay non-exempt employees only for the hours worked, not hours the employee otherwise would have worked if the employer’s business had not closed.  Employers can allow non-exempt employees to take paid time off they have accrued, or if applicable, pay them in accordance with state or local law.

Q16: Does an employer have to pay Exempt employees during business closures?

A: Under the FLSA, employers are generally obligated to pay exempt, salaried employees their full salary in any week in which they perform any work, with limited exceptions. Employers are not required to pay exempt, salaried employees in weeks in which they perform no work. Employers, therefore, should be very careful not to call or email salaried exempt employees sent home if the employer wants to maintain unpaid leave status. The U.S. Department of Labor issued an Opinion Letter that provides some guidance on this topic that you can access here.

Q17: Must an employer pay an employee confined to self-quarantine?

A: The same payment rules described above apply in this situation. Non-exempt employees only have to be paid for time actually worked. Employers are generally obligated to pay exempt, salaried employees their full salary in any week in which they perform any work. For example, if an exempt employee returns from a business trip and is quarantined during a workweek in which the employee already performed work, (even 1 day) the employer must pay the employee for the entire week. Employers covered by the Families First Coronavirus Response Act are required to provide paid Sick Leave for specific reasons covered by the Act, including if the employee has been advised by a healthcare provider to self-quarantine due to COVID-19 concerns and the employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.  

Q18: Is an employer obligated to provide a leave of absence to an employee who has asked to take leave to stay home with their children during a school closure due to COVID-19?

A: Employers covered by the Families First Coronavirus Response Act are required to provide paid FMLA leave and Sick Leave to employees who are caring for a child because the child’s school or place of care has been closed, or the childcare provider of such child is unavailable, due to COVID-19 precautions. As to employers not covered by the Families First Coronavirus Response Act, federal law does not require employers to provide leave for employees caring for healthy dependents who are unable to attend school. State laws may provide different conclusions.

Regardless of any legal obligation, employers should consider creative solutions to support employees during this period such as telework, reduced work schedules or providing advanced PTO, if possible. 

Employers who are concerned that allowing telework or reduced workweeks is setting a precedent for future accommodation requests may consider providing a disclaimer that  explains that because of the extraordinary situation caused by COVID-19, working remotely is only temporary and that it is understood that the employee may not be able to perform all of the essential functions of the job during this temporary period.

Q19: How can an employer monitor whether employees are actually working while at home?

A: Many employers have policies that permit email and electronic communications. Generally, employers who do not have these policies in place are still permitted to monitor work email and not invade an employee’s privacy if there is a valid business reason for doing so. It is also important to have non-exempt employees record time worked.

Q20: What are some safety measures employers can take to protect employees?

A: The CDC’s recommended strategies for employers to use now include:

  • Actively encourage sick employees to stay home.
  • Ensure that your sick leave policies are flexible and consistent with public health guidance and that employees are aware of these policies.
  • Talk with companies that provide your business with contract or temporary employees about the importance of sick employees staying home and encourage them to develop non-punitive leave policies.
  • Do not require a healthcare provider’s note for employees who are sick with acute respiratory illness to validate their illness or to return to work. This is because healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely way.
  • Employers should maintain flexible policies that permit employees to stay at home to care for a sick family member. Employers should be aware that more employees may need to stay at home to care for sick children or other sick family members than usual.
  • Separate sick employees. CDC recommends that employees who appear to have acute respiratory illness symptoms (i.e. cough, shortness of breath) upon arrival to work or become sick during the day should be separated from other employees and be sent home immediately. Sick employees should cover their noses and mouths with a tissue when coughing or sneezing (or an elbow or shoulder if no tissue is available).
  • Emphasize staying at home when sick, respiratory etiquette and hand hygiene by all employees:
  • Place posters that encourage staying at home when sick, cough and sneeze etiquette, and hand hygiene at the entrance to your workplace and in other workplace areas where they are likely to be seen.
    • Provide tissues and no-touch disposal receptacles for use by employees.
    • Instruct employees to clean their hands often with an alcohol-based hand sanitizer that contains at least 60-95% alcohol or wash their hands with soap and water for at least 20 seconds. Soap and water should be used preferentially if hands are visibly dirty.
    • Provide soap and water and alcohol-based hand rubs in the workplace. Ensure that adequate supplies are maintained. Place alcohol-based hand rubs in multiple locations or in conference rooms to encourage hand hygiene.
  • Perform routine environmental cleaning:
    • Routinely clean all frequently touched surfaces in the workplace, such as workstations, countertops and doorknobs. Use the cleaning agents that are usually used in these areas and follow the directions on the label.
    • No additional disinfection beyond routine cleaning is recommended at this time.
    • Provide disposable wipes so that commonly used surfaces (for example, doorknobs, keyboards, remote controls, desks) can be wiped down by employees before each use.
  • Advise employees before traveling to take certain steps:
    • Check the CDC’s Traveler’s Health Notices for the latest guidance and recommendations for each country to which you will travel. Specific travel information for travelers going to and returning from China, and information for aircrew, can be found at on the CDC website.
    • Advise employees to check themselves for symptoms of acute respiratory illness before starting travel and notify their supervisor and stay home if they are sick. Ensure employees who become sick while traveling or on temporary assignment understand that they should notify their supervisor and should promptly call a healthcare provider for advice, if needed.

Below are additional resources for helpful information. As always, please let me know if I can help.

Additional Resources

  • EEOC ‘s “What You Should Know About the ADA, the Rehabilitation Act, and COVID-19” (March 2020)
Business alerts, | Mar 18, 2020