We have made a pdf of the slides available from the Preparing Your Organization For A COVID-19 Coronavirus Outbreak presentation we hosted in conjunction with CareerLearning and Dr. Lynn N. Fitzgibbons. There were a lot of great follow-up questions we weren’t able to get to during the webinar. Below you will find 13 of the most common, along with the answers. In addition to the webinar content this article from a faith-based perspective on the response to COVID-19 is worth a read.
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Q & A
1.) If an employee with symptoms is unable to get a test due to general unavailability, how should employers handle this? Although state law may vary, you may generally have the employee go through the CDC risk assessment(s) for exposure or illness in travel or the community with their medical provider (or the medical provider of the employer’s choosing at the employer’s expense). The note from the provider is sufficient evidence of the general risk profile of that employee in the workplace. Relatedly, what obligation is there to notify other employees of potential exposure? The employer has an obligation to keep employees so if there is risk of illness and exposure, the employer should tell potentially affected employees that they have come into contact with a person who was exposed to COVID-19, and those employees should take the risk assessment and potentially enter self-quarantine.
2.) Are we obligated to let employees know a person is on self-quarantine if there are no confirmed COVID-19 results available. The identity of specific or individual employees is confidential. However, see the answer to #1, above.
3.) What if an employees states they don’t feel comfortable coming to work. Legally what can the employer do? The employer can “force the issue” through an OSHA, ADA and FMLA-compliant policy, the main elements of which are answered in response to #1, above. Employees do not have the right to refuse to come to work unless they reasonably believe they are in imminent danger.
4.) If an employee tests positive for COVID-19, should we require a doctor’s note to return to work? The CDC standard for a return to work following a Covid-19 infection are: (1) At least 3 days (72 hours) have passed since recovery, which is defined as (a) resolution of fever without the use of fever-reducing medications and (b) improvement in respiratory symptoms (e.g., cough, shortness of breath); and, (2) at least 7 days have passed since symptoms first appeared. If so, medical offices may be overwhelmed and this could be difficult to obtain. How should we proceed? Have the employee attest they meet these requirements.
5.) Can you ask your employees to submit to having their temperature taken prior to allowing them in the workplace? No, employers are not healthcare professionals. See the answers to #1 and #4, above, as well as the accompanying webinar which explains the process to have an employee go to a medical clinic for certain clearance.
6.) Can we require employees to use their PTO/sick/vacation during this period? Generally, yes. You will want to carefully follow your policies and state law in how you implement this and your short-term disability policy; however, implementation in a manner that is more favorable to employees should be consistently applied. What if they report that they have symptoms? See answer to #4. Are there laws that protect employees that would require the employer to pay them rather than use benefit time? Things are changing very fast; Congress is currently considering extended-time paid-leave. In addition, the federal WARN Act (100 employees or more) and the sixteen states with mini-WARN laws (usu. 50 employees or more), have obligations to give 60- or 90-days advance notice to employees before layoffs. However, strategies such as reduced hours can help mitigate these rules.
7.) Can an employer ask an employee for a copy of test results showing they have tested positive or have not tested positive? Yes, generally; a medical examination, including testing (and forced disclosure of the results) is permitted if an employer can show the exam is to assess whether the employee may pose a “direct threat” to the work place.
8.) If an employee has a sick child at home and we ask them to stay home to err on the side of caution and they don’t have paid time off left are we obligated to pay them? This is too fact-dependent to answer here. Additional information needed includes: Do you have a short-term disability policy? How many employees do you have? What state are you in? Is the child ill with Covid-19, or some other illness? Is the employee (or the child) under a quarantine order? Ultimately, however, you may still assess the employee’s risk to the workplace. See the answers to #1 and #7, above.
9.) How does FMLA and/or ADA work with someone on mandatory quarantine or isolation? This is complicated. Under FMLA, an employee (or family member) has a covered serious health condition if inpatient care and/or monitoring is required. Additionally, if an employee is in quarantine for Covid-19, they are likely “regarded as” having a disability under the ADA that rises to the level warranting protection for which employers have to offer reasonable accommodations. Is an employer legally required to pay an employee who decided to self isolate because of a presumptive positive test result? If FMLA, ADA or WARN require it, or if the employer’s employee manual (i.e., PTO/sick/short-term disability policies) require such, then yes.
10.) Can an employer require employees, customers, or visitors to sign waivers relieving the employer of any liability for illness or complications related to COVID-19 that may be contracted directly through exposure at the employer’s workplace? This would likely be ineffective, especially if you also didn’t take adequate precautionary measures.
11.) Do you have the right to ask employees for results of COVID-19 tests prior to coming back into the office? Tests are generally unavailable, so this would put the employee in an impossible situation. But see the answer(s) to #4 and #5, above.
12.) Can an employer reduce an exempt salaried employees and hours to reduce payroll burden on the company. How can it be done? The answer depends on whether WARN applies, see answer to #6 above, and on the applicability of the Fair Labor Standards Act. Reducing an exempt employee’s salary in times where they work fewer hours terminates the exempt status of that employee. The short answer is that it cannot be easily done.
13.) Do employers have to pay to those who cannot work from home? Unless WARN or a union collective bargaining agreement applies, generally no. Are employers required to pay an hourly employee if you have asked them to self-quarantine? Generally no, except that some employees will be able to use employer-provided leaves as determined by the specific policies of that employer.