COVID-19/CORONAVIRUS Office Reopening Q & A

Note: The Families First Coronavirus Response Act expired on December 31, 2020.  On December 27, 2020, President Trump signed a $900 billion COVID relief package that provides tax credits for employers who continue to provide Families First Coronavirus Response Act (FFCRA) leave in the first quarter of 2021.  While the bill does not extend the leave provisions under FFCRA, it does allow private employers to claim the tax credits for wages they pay to employees taking leave consistent with the existing FFCRA framework between January 1, 2021 and March 31, 2021.

1.     I am recalling my employees to work, but one of my employees has told me that she does not want to be recalled. I suspect that this is because she makes more money on unemployment than she does working. What can I do?

  • Unless your employee falls under several limited exceptions under the CARES Act, your employee must be available for suitable employment (ready, willing, and able to immediately accept work) to be eligible for unemployment, and, depending on state law, may be ineligible for unemployment if the employee refuses a suitable job offer.  An employee who turns down recall is not available for suitable employment, as they are not willing to immediately accept work.
  • If your employee refuses to be recalled you can use your online UI account to “raise an issue” about the employee. You should raise an issue of the employee being unavailable for work and an issue of the employee refusing an offer of employment.
  • You should notify the employee of the date and time at which they are expected to report to work. Tell the employee that if they do not report to work at that time, you will take that to mean that they have voluntarily resigned. If they do not report to work, you can remove them from payroll and report to UI that they have quit their job.

2.     I am recalling my employees to work. My employee wants to return but is afraid of contracting COVID-19 if he leaves the house. What should I do?

  • If the employee is afraid to leave the house for fear of contracting COVID-19 due to his or her own health or that of a household member, and a health care provider has recommended self-quarantine for either your employee or the household member, your employee may be eligible for Emergency Paid Sick Leave (EPSL) under the Families First Coronavirus Response Act (FFCRA). If this is the case, you will need to obtain a written request for EPSL from the employee.
  • If you know or suspect that your employee has a disability or underlying medical condition you must go through the interactive process pursuant to the Americans with Disabilities Act (ADA). This involves getting more information about the medical condition or disability from the employee’s health care provider and having a back and forth discussion with the employee about how you might accommodate the employee’s disability in the workplace. The employee’s disability may prevent the employee from returning to work at the time. You may need to explore teleworking or taking medical leave as a reasonable accommodation until the employee becomes able to return. 
  • If the employee does not have a disability or medical condition, you should give the employee a copy of your pandemic response return to work plan, which should outline all the precautions that will be taken to keep the employee safe. If the employee continues to refuse to return to work due to fear of contracting COVID-19, but does not have a medical condition or disability, you may give the employee a return to work date and time and inform the employee that if he or she does not return to work at that time, you will consider it a voluntary resignation.

3.     I am allowing my employee to telework due to a medical condition that puts her at high risk of complications from COVID-19. Her performance is poor and we prefer that she return to the office. Can we require her to return?

  • Because this employee has a medical condition that affects her ability to perform the essential functions of her job, you must provide a reasonable accommodation. Currently the function she is unable to perform is attendance in the office.  Reasonable accommodations would be teleworking and taking medical leave. As long as you are providing an accommodation, it does not need to be the accommodation of the employee’s choice. You can tell the employee that the accommodation you will provide will be a paid or unpaid leave of absence until it is safe for the employee to return to work. (If you will no longer permit the employee to telework, and a health care provider advises the employee to self-quarantine to avoid contracting COVID-19, the employee may be eligible for EPSL). You can also continue to allow the employee to telework and discipline the employee for poor performance. Before disciplining the employee, however, you should consult the information from the health care provider to make sure that an additional accommodation is not required to enable the employee to perform successfully.

4.     I am recalling my employees to work. Although we are taking every precaution, I am concerned about my company’s liability if an employee gets sick. Is there a liability waiver we can have employees sign so that we will not be responsible if an employee contracts COVID-19 at work? What about customers or clients?

  • You cannot get a liability waiver from employees who may be able to claim workers’ compensation benefits if they were to become exposed or sick at work. It is against public policy. However, the Occupational Safety and Health Administration (OSHA) has relaxed its enforcement guidelines, saying that regulators should take into account employers’ good faith efforts to protect staff. Employers should have a pandemic response and safe return to work plan to demonstrate these efforts.
  • Also, because COVID-19 is a disease of life and not an occupational disease, the burden of proof would be on the employee to show that the employee contracted the illness at work. This is difficult for the employee to do, unless the employee is a medical professional or first responder, where (in several states now) there is a presumption that the employee contracted the illness at work.
  • You can require your customers or clients to sign a waiver or release of liability, but it may be limited. A waiver is not a replacement for good insurance so employers should contact their brokers to make sure they are properly insured.

5.     My employee says a household member has to stay home to see if COVID-19 symptoms develop. Should I tell my employee not to come in?

  • If your employee’s household member has been advised by a health-care provider to self-quarantine, and your employee is caring for that household member, your employee may be eligible for EPSL under the FFCRA. You should determine if EPSL applies, and if it does not apply, you should implement a consistent policy in line with federal, state, local, and public health guidance that you apply to employees who may have been exposed to COVID-19.

6.     Should I ask for a doctor’s note or proof of school or daycare closure when my employee wants to use FFCRA leave?

  • Your employee should provide you with a written statement in which the employee provides:
    • The employee’s name
    • The date or dates for which leave is requested
    • A statement of the COVID-19 related reason the employee is requesting leave and written support for such reason; and
    • A statement that the employee is unable to work, including by means of telework, for such reason.
  • In the case of a leave request based on a quarantine order or self-quarantine advice, the statement from the employee should include the name of the governmental entity ordering quarantine or the name of the health care professional advising self-quarantine, and, if the person subject to quarantine or advised to self-quarantine is not the employee, that person’s name and relation to the employee.
  • In the case of a leave request based on a school closing or child care provider unavailability, the statement from the employee should include the name and age of the child (or children) to be cared for, the name of the school that has closed or place of care that is unavailable, and a representation that no other person will be providing care for the child during the period for which the employee is receiving family medical leave and, with respect to the employee’s inability to work or telework because of a need to provide care for a child older than fourteen during daylight hours, a statement that special circumstances exist requiring the employee to provide care.
  • This statement is sufficient under both DOL and IRS guidelines to substantiate the need for leave.

7.     Is an employee with COVID-19 eligible for traditional Family and Medical Leave Act (FMLA)? What about ADA accommodation?

  • The FMLA protects eligible employees who are incapacitated by a serious health condition, as may be the case with COVID-19 where complications arise, or who are needed to care for covered family members who are incapacitated by a serious health condition. Leave taken by an employee for the sole purpose of avoiding exposure to COVID-19 would not be protected under the FMLA. Employers should encourage employees who are ill with COVID-19 or who are exposed to ill family members to stay home and should consider flexible leave policies for their employees in these circumstances. 
  • Even if an employee does not qualify for leave pursuant to the FMLA, an employer should generally engage in the interactive process with an employee who has an underlying condition that may be a qualifying disability. Some options for reasonable accommodation during the COVID-19 pandemic may include telework or unpaid leave, but will ultimately depend on the exact facts of each case.

8.     My employee is in a high-risk demographic for COVID-19. Should I require him/her to stay home?

  • Generally speaking, this is not permissible under the ADA absent a directive from the Centers for Disease Control and Prevention (CDC) authorities that employers should take such measures. The Equal Employment Opportunity Commission (EEOC) indicates that the ADA does not prohibit employers from following CDC guidance. To the extent possible, it is important for employers to treat employees equally and apply policies in a non-discriminatory way, both during the pandemic and when the crisis is over and the workplace returns to normal. Employees in a high-risk group may qualify for ADA reasonable accommodation. Employee medical information obtained should be kept confidential.

9.     What documents/plans should I have in place to safely return my employees to work?

  • Employers should review and adhere to relevant federal, state, and local requirements to safely return employees to work. Generally, an employer would be wise to develop a pandemic/infectious disease preparedness and response plan that can help guide protective actions against COVID-19. Stay abreast of guidance from relevant public health agencies, and consider how to incorporate those recommendations and resources into workplace-specific plans. Plans should consider and address the level(s) of risk associated with various worksites and job tasks workers perform at those sites. Such considerations may include:
    • Where, how, and to what sources of COVID-19 might workers be exposed, including:
      • The general public, customers, and coworkers; and
      • Sick individuals or those at particularly high risk of infection (e.g., international travelers who have visited locations with widespread sustained (ongoing) COVID-19 transmission, healthcare workers who have had unprotected exposures to people known to have, or suspected of having, COVID-19).
    • Non-occupational risk factors at home and in community settings.
    • Workers’ individual risk factors (e.g., older age; presence of chronic medical conditions, including immunocompromising conditions; pregnancy). 
    • Controls necessary to address those risks. Follow federal and state, and/or local, recommendations regarding development of contingency plans for situations that may arise as a result of outbreaks, such as:
      • Increased rates of worker absenteeism.
      • The need for social distancing, staggered work shifts, downsizing operations, delivering services remotely, and other exposure-reducing measures.
      • Options for conducting essential operations with a reduced workforce, including cross-training workers across different jobs in order to continue operations or deliver surge services.
      • Interrupted supply chains or delayed deliveries.
  • Plans should also consider and address the other steps that employers can take to reduce the risk of worker exposure to COVID-19 in their workplace in accordance with OSHA guidance: https://www.osha.gov/Publications/OSHA3990.pdf

9.     What documents/plans should I have in place to safely return my employees to work?

  • Employers should review and adhere to relevant federal, state, and local requirements to safely return employees to work. Generally, an employer would be wise to develop a pandemic/infectious disease preparedness and response plan that can help guide protective actions against COVID-19. Stay abreast of guidance from relevant public health agencies, and consider how to incorporate those recommendations and resources into workplace-specific plans. Plans should consider and address the level(s) of risk associated with various worksites and job tasks workers perform at those sites. Such considerations may include:
    • Where, how, and to what sources of COVID-19 might workers be exposed, including:
      • The general public, customers, and coworkers; and
      • Sick individuals or those at particularly high risk of infection (e.g., international travelers who have visited locations with widespread sustained (ongoing) COVID-19 transmission, healthcare workers who have had unprotected exposures to people known to have, or suspected of having, COVID-19).
    • Non-occupational risk factors at home and in community settings.
    • Workers’ individual risk factors (e.g., older age; presence of chronic medical conditions, including immunocompromising conditions; pregnancy). 
    • Controls necessary to address those risks. Follow federal and state, and/or local, recommendations regarding development of contingency plans for situations that may arise as a result of outbreaks, such as:
      • Increased rates of worker absenteeism.
      • The need for social distancing, staggered work shifts, downsizing operations, delivering services remotely, and other exposure-reducing measures.
      • Options for conducting essential operations with a reduced workforce, including cross-training workers across different jobs in order to continue operations or deliver surge services.
      • Interrupted supply chains or delayed deliveries.
  • Plans should also consider and address the other steps that employers can take to reduce the risk of worker exposure to COVID-19 in their workplace in accordance with OSHA guidance: https://www.osha.gov/Publications/OSHA3990.pdf

10.  If I return employees to work in phases, how should I select who should come back when?

  • When you make selections for hiring, layoff, promotion, compensation increases or decreases, or any other significant change, you want to do so carefully to avoid risk of allegations of illegal discrimination in that decision making. It is imperative that phased or staggered reopening decisions be made for reasons that are not based on a protected class. Employers need to be careful to document their selection process and avoid making any decisions based on, for example, age or disabilities that might be perceived to make an individual more vulnerable to COVID-19.

11.  Should I take my employees’ temperatures when they return to work? What about customers?

  • The EEOC has issued guidance confirming specifically that the COVID-19 pandemic allows employers to take employee temperatures before they enter the workplace. Any such screening should be implemented in a nondiscriminatory way, and all information gathered should be kept confidential in accordance with the ADA. Do not disclose the identity of any employee who has a fever, except to those members of management with a true need to know. Note also that some individuals with COVID-19 do not present with a fever.
  • Private companies can generally exclude customers for non-discriminatory reasons, so it’s possible this could be implemented if done in a consistent way. Some companies have reported that they are opting to take customer temperatures and exclude those with fevers. This is administratively burdensome and expensive, and without guidance from federal, state, and/or local officials, companies should carefully weigh costs and benefits. Any tests should be non-invasive.

12.  Can I prohibit my employees from taking public transportation to work?

  • Short answer: Probably not.
  • The EEOC considers car ownership to be “financial information,” which cannot be used to make employment decisions. Thus, asking an employee whether they take public transit to get to work may be discriminatory. (This does not apply if the use of a car to travel between work sites is a primary job duty.)
  • In general, it will not be advisable to place this restriction since it may have a disproportionate impact on employees.

13.  If one of my employees tests positive for COVID-19, do I need to notify the workplace?

  • Short answer: Yes, but keep the employee’s identity confidential. (Even if everyone can guess, do not imply or suggest the identity of the employee.)
  • A positive diagnosis of Covid-19 is confidential medical information and the employer should not share any specifics with other employees. The employer should notify the employee’s supervisor that the employee will be on leave for a non-disciplinary reason. Notify other employees who may have come into contact with the employee in the past 14 days. If possible, ask the infected employee if she can help identify any coworkers or third parties she was in contact with. You do not need to inform other business locations which are not affected.

14.  If there is an exposure in my workplace, what should I do? How long do I need to shut down?

  • The employer should:
    • Remove the employee from the workplace. Leave under the FFCRA (EPSL/EFMLA) may apply, as will any previously existing PTO/sick leave policy.
  • If possible, identify whether the source of the infection was in the workplace. If the source was in the workplace:
    • Notify worker’s compensation carrier
    • Place the employee on worker’s comp (with pay)
      • Record the infection in the OSHA 300 log and complete related forms (301A).
  • There is no need to notify the CDC (health care providers are mandatory reporters)
  • Notify other employees who may have come into contact with the employee in the past 14 days. If possible, ask the infected employee if she can help identify any coworkers she was in contact with. You do not need to inform other business locations which are not affected.
  • Any employees who were in close contact with the affected person should be sent home for a 14-day self-quarantine. If they can work remotely, allow them to do so. If that is not possible, they may be eligible for PSL.
  • Notify third parties, such as vendors, clients, and customers, who the employee came into close contact with in the past 14 days. Do not identify the employee by name. Avoid making references that would make it easy to guess who the person is.
  • Have the employee’s workspace (and areas likely visited by the employee) thoroughly cleaned.
  • Respond to CDC or other public health authority inquiries. The employer may disclose protected health information to these entities.

15.  If I reopen and someone contracts COVID-19 at work, am I liable?

  • Like many things related to COVID-19, this will depend on the state and local guidance, but it is possible that an employee who contracts COVID-19 at work could file a workers’ compensation claim. Whether or not they will be successful will depend on the specifics of the situation. Employers can take steps to mitigate harm. OSHA requires employers to establish and maintain a workplace that’s “free from recognized hazards that are causing or are likely to cause death or serious physical harm” to employees. To meet that standard, OSHA advises businesses to implement safety measures such as following CDC guidelines to keep six feet away from co-workers or customers, disinfect surfaces, and provide face masks, hand sanitizers and barriers when appropriate, etc. https://www.osha.gov/Publications/OSHA3990.pdf

Please note this current global emergency and applicable laws, regulations, proposals, guidance, advice, and responses change rapidly. We strive to keep you up to date as much as possible, but this post is intended for general informational purposes only and should not be construed as legal advice or opinion. Contact myHRcounsel with questions concerning specific facts and circumstances.