The information provided within this FAQ does not constitute legal advice. Employment law is complicated and appropriate legal assessment and advice can only be given based on knowledge of your specific facts and taking into account the rapidly evolving legal landscape. We strongly recommend before acting on the above you consult with an employment attorney.
Last updated: March 20, 2020
Employee Leave
Can my employer force me to use PTO if I have to stay home due to symptoms of or testing positive for COVID-19?
Yes. Employers can require employees who exhibit coronavirus symptoms to stay home until they are symptom free, and employers could require that these workers wait the maximum incubation period for the virus (14 days) before returning to work. However, the law seems to be changing on this issue as time goes on, so we recommend you contact your employer’s HR Department before taking PTO.
What is the impact of the Families First Coronavirus Response Act on my paid sick leave and unpaid sick leave?
The Family First Act, signed into law March 18, 2020, expands paid sick leave and Family Medical Leave Act (unpaid sick leave) coverage for employees.
The Emergency Paid Sick Leave Act applies to all private employers with 1-499 employees. The employer MUST provide up to 80 hours of paid sick time for full-time employees and paid sick time equal to the hours each part-time employee works in the average two week period. The employee must be out sick because they’re subject to quarantine or isolation, are experiencing symptoms of COVID-19, or are caring for someone who is in quarantine or isolation from COVID-19 and/or have children in schools that have closed and the employee is not able to work from home.
For text of the new Emergency Paid Sick Leave in the Family First Act, go to https://www.congress.gov/bill/116th-congress/house-bill/6201/text
For a summary of the protections provided, go to: National Law Review.com
The Emergency Family and Medical Leave Expansion Act provides that the first 10 days of Emergency FMLA leave may be unpaid. Employees may choose (but cannot be forced) to substitute any accrued paid vacation leave, personal leave, or medical or sick leave (including paid leave under the Emergency Paid Sick Time Act) to which they are otherwise entitled for unpaid leave during this initial 10 days of Emergency FMLA. Thereafter, covered employers must provide eligible employees with up to ten (10) weeks of Emergency FMLA leave, paid at two-thirds of the employees’ regular rate of pay, up to $200 per day and $10,000 total. Under certain circumstances, an employer who is a party to a multiemployer collective bargaining agreement may fulfill its obligations to provide paid Emergency FMLA by making an equivalent contribution to the plan fund.
This new Section on Emergency FMLA, like the Emergency Paid Sick Leave Act, only applies to private employers with fewer than 500 employees. Emergency FMLA is available only to those employees who have worked at their employers for at least 30 days at the time of their leave request. Mirroring usual reinstatement rights elsewhere in the FMLA, employers with between 25 and 500 employees must restore employees returning from Emergency FMLA to their same job or an equivalent position if the employee’s position is no longer available. However, an employer with fewer than 25 employees may not be required to return an employee taking Emergency FMLA to work if: (1) the employee’s job no longer exists due to economic conditions or changes in operational conditions caused by the public health emergency during the Emergency FMLA period; and (2) the employer has made reasonable effort to find the same or equivalent position for the employee. In such a case, the employer must contact the employee if an equivalent position becomes available within one year of the date on which the employee’s Emergency FMLA ends. The Act also exempts certain small employers from civil actions by employees otherwise allowed by the FMLA.
The DOL is expected to issue regulations in early April that may exempt businesses with fewer than 50 employees when providing Emergency Paid Sick Time or Emergency Paid FMLA would jeopardize the viability of the business.
Can my employer force me to go to work even though I feel it is unsafe due to unreasonable exposure to COVID-19?
Possibly not. The General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health (OSH) Act of 1970, 29 USC 654(a)(1), requires private employers to furnish to each worker “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” This is a federal law, and you can report violations of this Act to the Occupational Safety and Health Administration. Additionally, if you have a genuine concern that your work environment is unsafe then you should make a written communication to your employer regarding your concerns and request the ability to work remotely. If an employer does not grant your request, we also recommend making a complaint to the NCOSH communicating your concerns regarding before you stop working, and this will entitle you to protections under North Carolina’s Retaliatory Employment Discrimination Act. Additionally, a private employer may be in violation of Section 7 of the National Labor Relations Act which protects concerted activity by employees who refuse to work because of unsafe working conditions.
If I’m required to report to work, what protections are employers required to provide?
As mentioned above, the Occupational Safety and Health Act obligates employers to provide a safe workplace for their employees. The Occupational Safety and Health Administration (OSHA) recently published Guidance on Preparing Workplaces for COVID-19, outlining steps employers can take to help protect their workforce. OSHA has divided workplaces and work operations into four risk zones, according to the likelihood of employees’ occupational exposure during a pandemic. While this guidance does not create a new legal standard and is only meant to be advisory, it does identify risk zones that are useful in determining appropriate work practices and precautions.
For more information regarding this topic, got to https://www.osha.gov/Publications/OSHA3990.pdf
Healthcare/HIPAA Concerns
Can my employer require me to get tested for COVID-19 if I have symptoms?
Probably not. Employers cannot require employees to be tested for COVID-19 unless directed to do so by health authorities. Generally, employers may require medical testing if they have a work-related basis to do so. When an employee exhibits objective indications of a condition which could impact their ability to perform their job duties, the ADA may permit an employer to require a “fitness for duty” exam related to the essential functions of the position. Also, employers may require employees who are displaying symptoms, have traveled to affected areas, or were otherwise potentially exposed to stay home from work until the risk of transfer is eliminated.
Additionally, employers may establish a voluntary disclosure process for employees affected or exposed to COVID-19 and provide a confidential resource for employees to contact if they wish to disclose personal health information. Employers may only require disclosure if the employee poses a direct threat.
Can my employer tell other employees that I have tested positive for COVID-19?
An infected employee should not be identified due to medical privacy considerations under the Health Insurance Portability and Accountability Act (HIPAA), as well as under protections guaranteed by the ADA , the FMLA, and other laws. Confidential medical information about the employee should not be shared. However, an employer may send out a generalized message to inform the workforce that there has been a reported case of COVID-19, and identify steps being taken to address the issue, along with retraining on its infection control practices, including handwashing and sanitizing workplace areas.
However, healthcare providers are required to notify federal, state, and local health authorities of the diagnosis, and those authorities may provide additional guidance and requirements, including further notification, on-site medical questioning, or examinations. If an organization has not been contacted, the employer may initiate contact and seek further guidance.
How much information may an employer request from an employee who calls in sick, in order to protect the rest of its workforce during a Coronavirus-like event?
Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, ADA-covered employers (private employers with 15+ employees and all state and local government employers) may ask if employees are experiencing the symptoms of the pandemic virus, including fever, chills, cough, shortness of breath, or sore throat without violating the ADA. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
Americans with Disabilities Act (“ADA”)
Is testing positive for COVID-19 a disability under the ADA?
The CDC has declared that the COVID-19 pandemic meets the “direct threat” standard under the ADA. As a result, individuals are not protected by the nondiscrimination provisions of the ADA if they have COVID-19. However, if the CDC and state/local public health authorities revise their assessment of the spread and severity of COVID-19, this could affect whether COVID-19 is still considered a “direct threat,” since whether a particular outbreak rises to the level of a “direct threat” depends on the severity of the illness.
However, the Families First Coronavirus Response Act provides that private sector employers with fewer than 500 workers (and governmental entities) will have to provide employees who cannot work or telework with paid sick time off if the employee: (1) contracts the virus, (2) if told to self self quarantine by their health care providers,(3) if the employee exhibits symptoms or believes that have contracted the virus, or (4) if the employee is caring for someone falls under (1) or (2).
When may an ADA-covered employer take the body temperature of employees during a Coronavirus-like event?
Generally, measuring an employee’s body temperature is a medical examination. 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.
When employees return to work, does the ADA allow employers to require doctors’ notes certifying their fitness for duty?
Yes. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic influenza were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees. As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus and/or has completed the required quarantine period.
Remote Work/ Employee Travel
Can my employer insist that I not travel to certain countries?
Subject to the particulars of your employment contract, the employer cannot control the employee’s travel, but the employer may insist you work from home if you have traveled to those countries and pose a “direct threat” to the health and safety of others.
Can my employer require me to stay home if I have symptoms of or test positive for COVID-19?
Yes. The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace. The ADA does not interfere with employers following this advice.
Can employees refuse to travel as part of their job duties?
Employees who object on behalf of others or act in groups could be covered by the NLRA’s protection of concerted protected activity. You will want to proceed with caution and consult with your attorney before taking any steps in this regard. Moreover, under the federal OSH Act, employees can only refuse to work when a realistic threat is present.
Therefore, if employees refuse your instruction to travel for business to any other country for fear of catching the COVID-19 coronavirus, try to work out an amicable resolution. For example, the employer and the employee can check and discuss the CDC (avoid Nonessential travel), State Department (Do Not Travel to China), and DHS Travel Advisories, which provide guidance on China Travel.
The CDC is also advising that some individuals may be more at risk of infection than others in the general population. Thus, follow the CDC direction on pregnant employees or on related reproductive issues, and do not make decisions without medical support. Moreover, actions by other countries, especially in Asia, may cause employee concerns, and absolute warnings and restrictions like those on China may not exist.
Resources:
OSHA – Guidance on Preparing Workplaces for COVID-19