Guidance for Employers on COVID-19Print PDF
Employers across the United States are preparing to implement guidance from public health authorities to mitigate the spread of COVID-19. Both the rapid spread of the virus and the prolonged incubation period present unique challenges for the workplace. Below, we answer some of the more frequently asked employers’ questions and present guidance on several hypothetical scenarios to assist employers in managing COVID-19 concerns in the workplace:
Q: What steps can employers take to protect their workforce?
At this time, the most important thing employers can do is actively encourage sick employees to remain home. This may require modifying sick leave or other time off polices to avoid negatively impacting employees who remain home to care for themselves or other sick family members. In addition, employers should consider introducing work policies or directives that reduce the risk of employee exposure to the virus. Remote working arrangements, use of video conferencing and other like technologies and limitations on employee gatherings in the workplace for meetings or other events should all be considered.
Q: Can an employer require employees to work remotely as a preventative measure?
Yes. When deciding to allow employees to work remotely, also consider the security implications of doing so. Managers should coordinate with their IT department to ensure remote work protocols adequately protect sensitive employee and client information.
Q: What are the wage and hour implications of working remotely?
It depends on whether you are talking about exempt or non-exempt employees. As a general matter, exempt employees must receive their regular weekly salary for a week in which they perform any work, regardless of the number of hours worked. The salary may be reduced if the employee voluntarily takes a full day (or days) off for personal reasons. A reduction in salary can also be made if the employee misses a full day(s) of work due to illness or disability, provided it is done in accordance with a bona fide policy.
Non-exempt workers need only be paid for the hours actually worked (unless they are paid on a fluctuating workweek method, in which case they are treated more like exempt salaried employees). Remember, though, that non-exempt employees must be paid time and a half for hours worked in excess of 40 in a workweek. This can be difficult to manage for non-exempt employees working remotely. Non-exempt employees should be required to record their time worked, and they should be informed, in writing, of how many hours they are authorized and permitted to work each day and week. Employers also should ensure that required meal and break times are accounted for.
Q: Can employers send home employees who are exhibiting symptoms of COVID-19?
Yes. The CDC currently recommends that employees exhibiting symptoms of acute respiratory illness and a fever (greater than 100.4 degrees Fahrenheit) stay at home.
Q: Can employers send home employees who have been in close contact with someone diagnosed with COVID-19?
Yes. The CDC recommends that asymptomatic employees be excluded from work if they have close contact with, sat on an aircraft within two seats of, or live in the same house as a symptomatic individual diagnosed with COVID-19. The CDC defines close contact as “being approximately 6 feet (2 meters) of a COVID-19 case for a prolonged time” or “having direct contact with infectious secretions of a COVID-19 case.” Caring for, living with, visiting, or sharing a healthcare waiting area is close contact.
Q: Can an employer prohibit employees from traveling to certain countries on their personal time?
No. An employer cannot prohibit an employee from personal travel. However, an employer may require an employee to self-quarantine for 14 days prior to returning to work. Employers should request documentation of travel dates to verify the proper quarantine period. If the employee exhibits no symptoms during their quarantine period, they should be allowed to return to work.
Q: Are employers required to provide employees with face masks?
Current CDC guidance does not recommend face masks for workers in non-healthcare positions. Accordingly, employers are not required to provide face masks to employees.
Q: Can an employer require employees to get their temperatures taken before work?
Generally, taking an individual’s temperature is considered a medical exam. In most cases, employers are prohibited from conducting medical exams on employees under the ADA. EEOC Guidelines concerning 2009 H1NI pandemic state that employers can take employees’ temperatures if objective evidence suggests the employee may be a direct threat to others. A “direct threat” is “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”
Q: Can a customer’s temperature be taken prior to providing service?
Yes. The public accommodation laws prevent discrimination based on certain protected characteristics. Under Massachusetts law and federal law, medical illness is not a protected class. As such, a business may take temperatures from consenting adults or refuse service.
Employers should be aware that there should be a consistently applied policy to determine which customers will be subject to temperature testing. For an example, a policy that calls for the testing of a customer that has a cough or is visibly sweating is permissible. A policy that mandates testing of all customers is also permissible. Whatever the policy, it must not be applied in a discriminatory manner.
Q: If an employer learns an employee has been diagnosed with COVID-19, can and/or must they notify all other employees at the location?
Yes. Currently the CDC recommends that employers notify employees that they may have been exposed to COVID-19, without identifying the individual employee by name. Any employees working within close proximity of the infected employee (within 6 feet), should stay home for 14 days. If an employer becomes aware that a client or customer is diagnosed with COVID-19, employees should be informed.
Employers should keep in mind that there are privacy implications to such notifications. These implications may turn upon the specific type of business the employer is engaged in and its relationship to the infected individual. This analysis should be done on a case by case basis. As a general principle, even in unregulated businesses, employers should provide only as much information as is necessary to protect public health.
Q: What if a customer directly asks if any employees were exposed to COVID-19?
An employer may inform a customer that an employee recently traveled to an outbreak area or if an employee was diagnosed with COVID-19. An employer may also inform the customer what steps the employer is taking to mitigate possible transmission. However, maintaining employee confidentiality is required.
Q: What if an employee with an underlying health condition wants to stay home from work for fear of being exposed to COVID-19 (even if there is no known diagnosis at the workplace)?
Older adults and those with an underlying chronic health condition are at a higher risk of developing serious complications from COVID-19. If an employee can work remotely, the employer should make reasonable accommodations to allow the employee to do so. If working remotely is unavailable, the employer may permit an employee to take an unpaid leave or paid time off. The employer may request that an employee provide a medical note documenting the underlying health condition; however the CDC recommends that employers relax medical note requirements at this time to avoid overwhelming medical providers.
Q: Is an employer required to let an employee self-quarantine merely as a preventative measure?
No. Although this is not a requirement, it is highly suggested that employees be allowed to work remotely. If working remotely is impossible, and an employee refuses to come to work, employers can require the employee to use their paid time off.
Q: When can an employee diagnosed with COVID-19 return to work?
Employees diagnosed with COVID-19 must remain in isolation. The CDC states that when a person is released from isolation is determined on case-by-case basis. At minimum, release from isolation requires that the patient to be fever free, present no respiratory symptoms, and have two negative COVID-19 tests.
Q: When can a previously symptomatic employee (not diagnosed with COVID-19) return to work?
The CDC guidelines state employees may return to work 24 hours after remaining fever-free without medicine.
Q: Can employers require medical notes for absences?
Yes, but it is not recommended by the CDC. Under the Massachusetts Earned Sick Time Law, employers can request medical documentation if an employee misses three work days. Further, under the ADA and FMLA, employers can request medical certification of a serious health condition. But the CDC recommends that employers relax these policies to avoid overwhelming medical providers who must direct their limited resources and time to caring for the extremely sick. Should an employer determine to waive the medical documentation policy, it must be applied uniformly to all employees.
Q: If a public health emergency is declared, and employees can’t come into work, does their employer still have to pay them?
Non-exempt: Non-exempt employees are required to be paid only for the number of hours they work.
Exempt: Employers are required to pay an exempt employee’s full salary for a week in which they perform any work (see above). Employers may require employees to use paid leave time.
Q: Are employees entitled to coverage under the Massachusetts Earned Sick Time law?
Yes. The law applies when an employee or their family member is ill. Employees of companies with 11 or more workers are entitled to up to 40 hours of job protected paid leave. Employers with fewer than 11 employees must provide unpaid earned sick time to eligible employees.
Q: Are employees entitled to coverage under FMLA?
Perhaps. If an employee or family member is diagnosed with COVID-19, it may be considered a serious health condition under the federal Family and Medical Leave Act. FMLA applies to employers with 50 or more employees and allows an employee to take a job-protected leave if the employee, or a close family member, has a serious health condition. However, if an asymptomatic employee is required to quarantine themselves, FMLA would not apply.
Q: Are healthcare employees subject to different standards?
Yes. CDC implemented a separate risk assessment tool for healthcare workers. OSHA recommends that healthcare workers wear gowns, gloves, respirators, goggles and face shields when treating potential and confirmed COVID-19 cases.
Q: Where can I obtain further information?
We understand that employers may face unique circumstances that require fact-specific consideration, in addition to the general answers and guidance provided above. Nutter’s Labor, Employment, and Benefits or Privacy and Data Security teams are here to assist with any COVID-19 workforce management concerns.
This client alert is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. The most current information about the rapidly developing COVID-19 outbreak is posted by the CDC and local health departments.