{"id":1361,"date":"2020-03-18T15:19:20","date_gmt":"2020-03-18T15:19:20","guid":{"rendered":"https:\/\/www.bfvlaw.com\/what-employers-need-to-know-about-covid-19\/"},"modified":"2020-03-18T15:19:20","modified_gmt":"2020-03-18T15:19:20","slug":"what-employers-need-to-know-about-covid-19","status":"publish","type":"post","link":"https:\/\/www.bfvlaw.com\/what-employers-need-to-know-about-covid-19\/","title":{"rendered":"What Employers Need to Know about COVID-19"},"content":{"rendered":"\n

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 (\u201cCDC\u201d), the Equal Employment Opportunity Commission (\u201cEEOC\u201d) and the U.S. Department of Labor (\u201c DOL\u201d).  As always, state and local laws may apply resulting in different conclusions.<\/em><\/p>\n\n\n\n

Because these are not normal times\nand the crisis is constantly evolving, employers are encouraged to do\ntheir best to stay informed of legal developments on a daily basis<\/strong>.  The end of this document includes links to\ngovernment sites with helpful information. <\/em><\/p>\n\n\n\n

This FAQ is based upon federal and Georgia law. Several\nstates and municipalities have enacted their own laws that should be considered\nwhenever making decisions in a jurisdiction outside of Georgia. <\/em><\/em><\/strong><\/p>\n\n\n\n

Q1: May an employer\nencourage or require asymptomatic employees to telework (i.e., work from an\nalternative location, such as home)? <\/strong><\/strong><\/p>\n\n\n\n

A:<\/strong> Yes. The CDC and EEOC\nconsider telework an effective infection-control strategy.   <\/strong><\/p>\n\n\n\n

Q2:\nMay an employer send employees home if they display COVID-19-like symptoms?<\/strong><\/p>\n\n\n\n

A:<\/strong> 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\u00b0 F [38.0\u00b0 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<\/a>  that the Americans with Disabilities Act (\u201cADA\u201d) does not interfere with employers following this advice.<\/p>\n\n\n\n

Q3:\nHow much information may an employer request from employees who report feeling\nill at work or who call in sick?<\/strong><\/p>\n\n\n\n

A:\n<\/strong>Employers may ask such employees if\nthey are experiencing COVID-19-like symptoms, such as fever or chills and a\ncough or sore throat.  However, employers\nmust maintain all information about employee illness as a confidential medical\nrecord in compliance with the ADA.  The\nEEOC also states that asking about symptoms is permissible and does not\nconstitute a disability-related question under the ADA.<\/p>\n\n\n\n

Q4:\nMay an employer take its employees\u2019 temperatures to determine whether they have\na fever?<\/strong><\/p>\n\n\n\n

A:<\/strong> Generally, measuring an employee’s body temperature is a medical examination. The EEOC recently opined<\/a>  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\u2019s temperature may not be of any real value.<\/p>\n\n\n\n

Q5:\nMay an employer ask asymptomatic employees if they have a medical condition\nthat the CDC says could make them especially vulnerable to COVID-19 infection?<\/strong><\/p>\n\n\n\n

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

Q6:\nWhen an employee returns from travel, must an employer wait until the employee\ndevelops COVID-19 symptoms to ask questions about possible COVID-19 exposure?<\/strong><\/p>\n\n\n\n

A:\n<\/strong>No, these are not disability-related\ninquiries. If the CDC or state or local public health officials recommend that\npeople who visit specified locations remain at home for several days until it\nis clear they do not have COVID-19 symptoms then an employer may ask whether\nemployees are returning from these locations, even if the travel was personal.<\/p>\n\n\n\n

Q7:\nMay an employer require its employees to adopt infection-control practices,\nsuch as regular hand washing, at the workplace?<\/strong><\/p>\n\n\n\n

A:\n<\/strong>Yes. Requiring infection control\npractices, such as regular hand washing, coughing and sneezing etiquette and\nproper tissue usage and disposal, does not implicate the ADA.<\/p>\n\n\n\n

Q8:\nMay an employer require its employees to wear face masks, gloves, or gowns?<\/strong><\/p>\n\n\n\n

A:\n<\/strong>Yes. An employer may require employees\nto wear personal protective equipment during a pandemic. However, where an\nemployee with a disability needs a related reasonable accommodation under the\nADA (e.g., non-latex gloves, or gowns designed for individuals who use\nwheelchairs), the employer should provide these, absent undue hardship.<\/p>\n\n\n\n

Q9:\nIs an employer obligated to provide masks to its employees?<\/strong><\/p>\n\n\n\n

A:\n<\/strong>No. While the CDC has recommended\nthat health workers wear masks, it has not made similar recommendations to the\ngeneral public. The CDC insists that only individuals who show COVID-19-like\nsymptoms need to wear them.<\/p>\n\n\n\n

Q10:\nMay an employer ask an employee why he or she has been absent from work if the\nemployer suspects it is for a medical reason?<\/strong><\/p>\n\n\n\n

A:<\/strong> Yes. Asking why an individual did\nnot report to work is not a disability-related inquiry. An employer is always\nentitled to know why an employee has not reported for work.<\/p>\n\n\n\n

Q11: What should employers do if an employee is confirmed to\nhave COVID-19?<\/strong><\/strong><\/p>\n\n\n\n

A:\n<\/strong>The infected employee\nshould be sent home. Fellow employees who may have been exposed should be\nnotified, sent home and referred to CDC guidance for how to conduct a risk assessment of their potential\nexposure. Employers must maintain the confidentiality of the exposed employee\nas required by the ADA. In other words, employers should inform employees that\npossible exposure has occurred in the workplace without disclosing any identifying\ninformation about the individual who tested positive.<\/strong><\/p>\n\n\n\n

Q12: What should employers do if an employee has a\nsuspected but unconfirmed case of COVID-19?<\/strong><\/strong><\/p>\n\n\n\n

A: <\/strong>In this situation, employers should notify and send home\nemployees who may have been exposed. \nEmployers should also share that the employee with the possible infection\nhas not tested positive, but for safety reasons the company is taking this precautionary\nmeasure. <\/strong><\/p>\n\n\n\n

Q13: Should employers require returning employees\nto provide a physician\u2019s note?<\/strong><\/strong><\/p>\n\n\n\n

A: <\/strong>There is debate about this. Employer may lawfully require a return to work note or certification.\u00a0 For example, if the employee\u2019s illness is a \u201cserious health condition\u201d 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\u2019s 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. \u00a0Therefore, 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. <\/p>\n\n\n\n

Q14: Is an employer obligated to provide\nleave to an employee with a family member infected with COVID-19?<\/strong><\/p>\n\n\n\n

A: <\/strong>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\u2019s close family member.\u00a0 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. <\/p>\n\n\n\n

Q15: Does an employer have to pay\nNon-Exempt employees during business closures?<\/strong><\/p>\n\n\n\n

A:\n<\/strong>Under\nthe FLSA, employers are obligated to pay non-exempt employees only for the\nhours worked, not hours the employee otherwise would have worked if the\nemployer\u2019s business had not closed.  Employers can allow non-exempt employees to\ntake paid time off they have accrued, or if applicable, pay them in accordance\nwith state or local law. <\/p>\n\n\n\n

Q16: Does an employer have to pay Exempt\nemployees during business closures?<\/strong><\/p>\n\n\n\n

A: <\/strong>Under the FLSA, employers are generally obligated to pay exempt, salaried employees their full salary in any week in which they perform any<\/strong> 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<\/a>.<\/p>\n\n\n\n

Q17: Must an employer pay\nan employee confined to self-quarantine?<\/strong><\/p>\n\n\n\n

A: <\/strong>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. \u00a0 <\/p>\n\n\n\n

Q18: Is an employer\nobligated to provide a leave of absence to an employee who has asked to take\nleave to stay home with their children during a school closure due to COVID-19?<\/strong><\/p>\n\n\n\n

A: <\/strong> 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\u2019s 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. <\/p>\n\n\n\n

Regardless of any legal\nobligation, employers should consider creative solutions to support employees\nduring this period such as telework, reduced work schedules or providing advanced\nPTO, if possible.  <\/p>\n\n\n\n

Employers who are\nconcerned that allowing telework or reduced workweeks is setting a precedent\nfor future accommodation requests may consider providing a disclaimer that  explains that because of the extraordinary\nsituation caused by COVID-19, working remotely is only temporary and that it is\nunderstood that the employee may not be able to perform all of the essential\nfunctions of the job during this temporary period. <\/p>\n\n\n\n

Q19: How can an employer\nmonitor whether employees are actually working while at home? <\/strong><\/p>\n\n\n\n

A: <\/strong>Many employers have policies that\npermit email and electronic communications. Generally, employers who do not\nhave these policies in place are still permitted to monitor work email and not\ninvade an employee\u2019s privacy if there is a valid business reason for doing so. It\nis also important to have non-exempt employees record time worked.<\/p>\n\n\n\n

Q20: What are some safety\nmeasures employers can take to protect employees? <\/strong><\/p>\n\n\n\n

A: <\/strong>The CDC\u2019s recommended strategies for employers to use now include:<\/p>\n\n\n\n