FAQ’s: Employers Navigating COVID-19

Last Updated on May 21, 2020 by bigfish-admin

Updated: April 1st 2020 

Q: Do I have to pay an employee who missed work due to COVID-19? 

A: If employees have sick leave then yes. In California we currently require 24 hours of sick leave at the state level, and some localities require more.  Your company may also offer sick leave.  If an employee is out because of sickness related to COVID-19, they may be eligible to take sick leave. Refer to your state’s sick leave guidelines as well as your company policy. Remember your exempt employees must receive a full week’s salary if they worked at all during that workweek.

Also remember that the FFCRA now requires employers to provide paid leave for certain COVID-19 related reasons.

Q: Can my employee claim worker’s compensation if they contract COVID-19 at work? 

A: Theoretically, yes, an employee could file a worker’s compensation insurance claim if they contracted the disease at work.  The difficulty lies in the fact that it spreads so easily from one person to another, and the length of the period between contracting the virus and showing symptoms would make it extremely difficult to prove they contracted the disease as a direct result of their job duties.

Q: How much information can I request from an employee who calls in sick? 

A: You can ask the employee if they are experiencing symptoms associated with COVID-19, such as fever, difficulty breathing, or a cough. Remember any information obtained about an employee’s health is private information that should be treated confidentially. The EEOC has determined that these kinds of questions are not disability-related, and, in the event that a severe form of pandemic illness poses a direct threat, these questions would be allowed in order to protect the organization.

Q: Can I take an employee’s temperature to determine if they do have a fever? 

A: On March 19, 2020, the EEOC issued updated guidance concerning COVID-19 and the ADA.  They indicated that “If pandemic influenza symptoms become more severe than the seasonal flu or the H1N1 virus in the spring/summer of 2009, or if pandemic influenza becomes widespread in the community as assessed by state or local health authorities or the CDC, then employers may measure employees’ body temperature.”

The guidance also notes that some people with COVID-19 may not have a fever and that temperature checking should be only one component of a comprehensive program.  If you wish to implement a temperature checking component of your overall COVID-19 safety measures, you should establish consistent processes for conducting the checks, mitigate the risk that someone excluded by a temperature check might bring a claim, and assess any other considerations that should weigh into the decision, such as public health.

Q: Can I send home a symptomatic employee? 

A: Yes, if you believe an employee is exhibiting symptoms related to COVID-19, you can require an employee to go home. 

Q: Can I require my employees to stay home after traveling or having close contact with someone who has COVID-19? 

A: Yes, you may institute such a policy where employees have been traveling to locations heavily impacted by the virus, currently most countries in Europe, China, South Korea, and Iran. Visit the CDC’s website for the most updated information. You can also require employees to stay home after risk of exposure from others with the disease.

Q: Can I require my employees to provide a physician’s note certifying fitness to return to work? 

A: Yes, if your state’s paid sick leave law allows it.  If providing paid leave pursuant to the FFCRA and intend to take the tax credit for reimbursement, you should are required to gather certification that substantiates the need for leave.

Q: When can I allow an employee to return after their symptoms are gone? 

A: This is a business decision. We recommend that at a minimum, you adhere to the CDC’s guidance of 72 hours.

Q: Can I change my existing policies? 

A: Yes, please do, but then also follow those policies consistently and communicate any changes to those policies as needed. 

Q: Do I have to keep my employee’s COVID-19 diagnosis confidential? 

A: Yes. However, under OSHA’s general duty clause, you may be required to notify employees that they may have been exposed to the virus. 

Q: Can I cancel my employees’ vacation time and make them come to work instead? A: Yes, vacation time isn’t guaranteed under federal law, and most employers are within their rights to cancel a vacation or require workers to return to their jobs. The exception is if an employee is covered by a union contract or specific employment agreement that includes certain time-off protections.

Q: If my employee(s) really feel uncomfortable about commuting into work and feel they are increasing their risk of exposure. Do they have a right to work from home?

A: Employers generally do not have an obligation to allow telecommuting. An exception would be an employee who qualifies under the ADA to work remotely to accommodate a disability. An additional exception might be under a government-ordered quarantine. 

Q: As an employer can I insist my employees work from home?
A: Yes, employers are within their rights to ask employees to work remotely, as long as they are not applying policy in a way that may be deemed discriminatory. For example, it’s OK to ask workers who have recently traveled to China, Italy, Iran or another country especially hard hit by the outbreak to work from home for a given period, but it’s not all right to ask workers over the age of 70 to work from home‚ even if the intention is well-meaning, because age is a protected class under federal law

Your Questions…

Q: We are a small government agency, a staff totaling 10, looking to close down the office temporarily to avoid day to day public contact. For employees that have to be off, can the agency make them use their vacation time? 

A: Vacation time is mostly (though not entirely) unregulated, even here in California, though we do have some vacation laws. Employers may require employees to use vacation hours at specified times. 

Q: If we were to shut down for 1-2 weeks just out of precautionary reasons, can employees get compensation by filing for unemployment?  

A: Employees would not be made ineligible for unemployment compensation based on a temporary layoff or furlough.  Any time an employee receives a reduction in hours or loses their position, the CA EDD will make a determination based on the facts of the case.  Typically, CA is very claimant-friendly and, as long as they lost their job through no fault of their own, they will be eligible for unemployment compensation, provided they meet the other requirements, all of which are outside the employer’s control.

Q: We have a combination of hourly and salaried employees; hourly employees are assembly and cannot work from home. What options do I have for not discriminating against them and paying them? I don’t want to layoff hourly people from a production perspective… A: An employee’s status as an hourly or exempt employee is not a protected class status, so this should not be a concern for you when making this business decision.  Protected class status is usually determined by immutable personal characteristics such as race, gender, personal/religious values, etc.

Q: Can we require an hourly employee to self-quarantine for 14 days without pay (of course they can use any current accrued time they have), if they are coming back from a vacation from a state not listed as an area of high risk? 

A: Given that they have not been traveling to an area of high-risk as supported by a government agency (such as the CDC), we would imagine that you’d be at a much higher risk for a claim.  Please consult with your labor attorney if you feel the need to do so. 

Q: For exempt employees, if they work from home one day of the week, are they entitled to a whole week’s salary?  Can you explain that a little more…
A: Yes, exempt employees are entitled to an entire week of pay if they work at all during the established workweek.  The Department of Labor has defined the reasons an employer may deduct partial weeks from an employee’s salary.  Please follow the below link for more information about this topic from the Department of Labor, Page 2.

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