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Noble Law COVID-19 (Coronavirus) Task Force

EMPLOYEE FAQ

The information provided within this FAQ does not constitute legal advice. Appropriate legal assessment and advice can only be given based on knowledge of your specific facts applied to the rapidly evolving legal landscape of employment law. We strongly recommend you consult with an employment attorney before acting on the below.

Last updated: May 13, 2021

TOPICS COVERED

Employee Leave

Healthcare/HIPAA Concerns

Americans with Disabilities Act (“ADA”)

Remote Work/ Employee Travel

Employee Leave

What is the status of additional paid and unpaid sick leave related to the COVID-19 pandemic?

On March 18, 2020, the Families First Coronavirus Response Act (“FFCRA”) became law and required many employers to grant eligible employees paid and unpaid leave related to the COVID-19 pandemic.  However, the FFCRA’s obligation to provide this additional COVID-related leave was originally only effective only through December 31, 2020 until the American Rescue Plan Act of 2021 (“ARPA”) was signed into law which extended and expanded the coverage under the FFCRA.  Specifically, ARPA expanded the paid sick leave portion of the FFCRA by creating a new annual allotment of up to 80 hours per employee of qualifying paid sick leave, excluding the first quarter of 2021.  It also expanded the reasons that an employee can qualify for paid sick leave to include: 1) seeking or awaiting the results of a diagnostic test for, or a medical diagnosis of, COVID-19 and such employee has been exposed to COVID-19 or the employee’s employer has requested such test or diagnosis; 2) obtaining immunization related to COVID-19; and 3) recovering from injury, disability, illness, or other condition related to a COVID-19 immunization.

In addition, the ARPA expands the emergency family leave portion of the FFCRA by expanding the qualifying reasons for emergency family leave to include the reasons for paid sick leave (as expanded by the ARPA), increasing the per-employee aggregate tax credit cap for emergency family leave from $10,000 to $12,000 and eliminating the requirement for the first 10 days of emergency family leave to be unpaid. The Wage and Hour Division of the U.S. Department of Labor will enforce the paid sick leave and expanded family and medical leave provisions of the FFCRA for leave taken or requested from April 1, 2020 through September 30, 2021. In the case that paid leave was not provided, the Wage and Hour Division will uphold complaints made within two years of the date of violation (or three years, if the violation is willful). There may also be a private right of action.

The ARPA provides that beginning April 1, 2021 through September 30, 2021, COBRA  premium assistance availability for qualified beneficiaries.  The premium assistance is equal to one hundred percent of the premiums plus administrative fees.  COBRA premium assistance is not available to individuals who are eligible for other group health plan coverage.  Employers will be reimbursed by the federal government for the premium assistance through a credit or refund of payroll taxes.

Two additional laws used tax credits to incentivize employers to grant additional COVID-related leave beyond December 31, 2020.  The Consolidated Appropriations Act extended to March 31, 2021 tax credits for employers that voluntarily provide employees with paid sick leave and expanded family and medical leave.  The ARPA extended these tax credits through September 30, 2021.  There may be consequences for employers that accept the tax credits but refuse to honor their voluntary grant of additional leave corresponding to said credits.

NEW YORK

On March 18, 2020, New York State enacted legislation authorizing sick leave for employees subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19. The law provides paid and unpaid sick leave with access to expanded paid family leave and temporary disability depending on the size of the employer. All employees, regardless of the size of their employer, are entitled to job protection upon return from leave.  The legislation was amended on January 20, 2021, which limited the number of times an employee could use the New York COVID-19 Paid Leave Act for quarantine purpose to three, with the second and third use of said Act for quarantine purposes requiring the employee to first undergo a COVID-19 test.

 

Can my employer force me to go to work even though I feel it is unsafe due to unreasonable exposure to COVID-19?

Although at-will employment often means going into work, even when you consider the conditions less than ideal, there may be consequences for an employer’s lack of preparedness in controlling for elevated occupational exposure risk, even if it does not violate an existing OSHA standard or regulation.

In May 2020, OSHA reminded employers that there may be a general duty clause violation if the employer recognized a hazard that was causing or likely to cause death or serious physical harm, there was a feasible and useful method to correct the hazard, and the employer failed to keep the workplace free of a hazard to which employees were exposed.

Elevated occupational exposure risk could be encountered in workplaces that are considered to have job duties with high risk of exposures to COVID-19, such as hospitals treating suspected and/or confirmed COVID-19 patients, nursing homes, emergency medical centers, emergency response facilities, settings where home care or hospice care are provided, settings that handle human remains, biomedical laboratories, including clinical laboratories, and medical transport.

This could also be true of medium exposure risk jobs, which include those in frequent and/or close contact (within 6 feet) with people who may be (but are not necessarily known to be) infected with SARS-CoV-2. Workers in this risk group may have frequent contact with travelers returning from international locations with widespread COVID-19 transmission. In areas where there is ongoing community transmission, workers in this category include, but are not limited to, those who have frequent and/or close contact with the general public or coworkers. These are workplaces such as schools, high-population-density work environments – like meat and poultry processing – and some high-volume retail settings.

Employers must make timely reports to OSHA in the case of serious events, such as in-patient hospitalizations and fatalities, that may be work-related.  Workers requesting inspections, complaining of COVID-19 exposure, or reporting illnesses may be covered under one or more whistleblower statutes.  Employers must inform these workers of their protections from retaliation and to refer them to www.whistleblowers.gov for more information.

 

If I’m required to report to work, what protections are employers required to provide?

An employee not provided with adequate personal protective equipment when dealing with COVID-19-positive individuals may file a complaint with OSHA or North Carolina Department of Labor’s Occupational Safety and Health Division (“NC OSH”).  If an employer does not separate a COVID-19-positive employee from other employee, OSHA and NC OSH could potentially cite the employer under the OSH general duty clause for failing to provide a workplace that is safe and free from recognized hazards.

NEW YORK

As of February 25, 2021, per the New York State Health Regulation §66-3.2 (“NY Health Regulation”), employees in the workplace shall be provided and required to wear a mask or face-covering when in direct contact with customers or members of the public, or when unable to maintain at least six feet distance between themselves and any other persons, by their employer and at their employer’s expense. Food service employees must wear a mask or a face-covering at all times while at their place of work. Additionally, business operators and building owners are required to refuse entry to any person who fails to comply with the NY Health Regulation’s requirement that people wear face-coverings over their nose and mouth when they are within six feet of others in a public place. These business operators and building owners must require or compel such persons’ removal, unless there is a disability or other exception under federal, state or local law.

NORTH CAROLINA

As per North Carolina’s Executive Order 195, effective February 26, 2021 through March 26, 2021, face coverings must be worn indoors if anyone else is in that space that is not a member of the same household. Executive Orders like this can be enforced by state and local law enforcement, which would also be true of any then-existing Executive Orders mandating occupancy limits and social distancing.

If an employer is not providing a safe workplace, free from recognized serious hazards, and then fires or retaliates against an employee for bringing it to the employer’s attention, the employee can file a retaliation complaint with NCDOL’s Retaliatory Employment Discrimination Bureau (REDB) under the state’s Retaliatory Employment Discrimination Act (REDA).

In addition to OSHA rules, North Carolina’s OSHA-approved State Plan covers most private sector workers and all state and local government workers, while New York’s OSHA-approved State Plan covers only state and local government workers.

As per North Carolina Department of Labor’s Occupational Safety and Health Division (NC OSH), if someone at a jobsite was in direct contact with others within the 14 days prior to testing positive for COVID-19, an employer should notify all affected employees, while also respecting employee privacy and confidentiality rights.

The employer should also contact the local health department and the CDC, as well as sanitize the job site. NC OSH encourages businesses to send sick employees home and ensure they stay home until they are no longer infectious. As of May 2020, this has been required of certain business, like retail, by North Carolina executive order, provisions in which was enforceable by local and state law enforcement.

Healthcare/HIPAA Concerns

Can my employer require me to get tested for COVID-19 if I have symptoms?

Yes. The EEOC has determined that COVID-19 is a “direct threat” to employees and co-workers and that, as such, testing requirements for those exhibiting symptoms is not a violation of the ADA. Of course, employers should uniformly apply this standard to all employees.

NEW YORK

Your employer cannot fire you, send you home, or tell you not to come to work because they think you may have been exposed to the coronavirus based solely on your race, national origin, or disability.  Harassment and discrimination on the basis of race, national origin, age, and disability (including having COVID-19 or another serious illness) is illegal under the New York City Human Rights Law.

 

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.

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.

NORTH CAROLINA

For example, in North Carolina, if someone at a jobsite was in direct contact with others within the 14 days prior to testing positive for COVID-19, an employer should notify all affected employees, while also respecting employee privacy and confidentiality rights. The employer should also contact the local health department and the CDC and sanitize the jobsite. NC OSH encourages business to send home sick employees and ensure they stay home until they are no longer infectious. (As of May 2020, this has been required of certain business, like retail, by North Carolina executive order, provisions in which was enforceable by local and state law enforcement.)

 

How much information may an employer request from an employee who calls in sick to protect the rest of its workforce during COVID-19?

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 more than 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.

According to OSHA’s Enforcement Guidance Memo, since COVID-19 is a recordable illness for most employers, most employers have the obligation to immediately investigate whether any COVID-19 cases among employees are work-related.

Given the nature of COVID, OSHA used its Enforcement Memorandum to clarify an employer’s analysis of work-relatedness in the context of COVID-19.  OHSA’s requirements for deciding whether an employer made a reasonable determination of whether a case of COVID-19 was work-related include asking the employee how they believe they contracted the COVID-19 illness, discussing activities both in and out of the workplace that may have led to contracting the virus, and reviewing the employee’s work environment for potential SARS-CoV-2 exposure, especially in light of any other instances of workers in that environment contracting COVID-19 illness.

Certain types of evidence weighing in favor of a work-related spread include when several cases develop among workers who work closely together, if the illness is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19, or if the employee’s job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.

Because this is an illness, if an employee voluntarily requests that his or her name not be entered on the OSHA Form 300 log, the employer must comply.

As per OSHA’s Enforcement Plan Memo, employers must report potentially work-related serious events, such as in-patient hospitalizations and fatalities, to OSHA in a timely manner. Workers requesting inspections, complaining of COVID-19 exposure, or reporting illnesses may be covered under one or more whistleblower statutes. The Enforcement Guidance commands employers to inform these workers of their protections from retaliation and to refer them to http://www.whistleblowers.gov for more information. OSHA will forward complaint information deemed appropriate to federal partners with concurrent interests.

Americans with Disabilities Act (“ADA”)

What rights do I have if I am suspected of having or have tested positive for COVID-19?

NEW YORK

Your employer cannot fire you, send you home, or tell you not to come to work because they think you may have been exposed to the coronavirus based solely on your race, national origin, or disability. Harassment and discrimination on the basis of race, national origin, age, and disability (including having COVID-19 or another serious illness) is illegal under the New York City Human Rights Law.

The CDC has declared that the COVID-19 (coronavirus) pandemic meets the “direct threat” standard under the ADA. As a result, individuals are not protected by the standard nondiscrimination provisions of the ADA if they have COVID-19 (coronavirus).  However, if the CDC and state/local public health authorities revise their assessment of the spread and severity of COVID-19 (coronavirus), this could affect whether COVID-19 (coronavirus) is still considered a “direct threat,” therefore reestablishing ADA protections.

 

Can my employer take my temperature?

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 (coronavirus) 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.

 

Can an employer ask an employee or an applicant if they have received the COVID-19 vaccine or require employees to be vaccinated?

The ADA allows an employer to have a qualification standard that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.”  However, if a safety-based qualification standard, such as a vaccination requirement, screens out or tends to screen out an individual with a disability, the employer must show that an unvaccinated employee would pose a direct threat due to 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.”  29 C.F.R. 1630.2(r). Individuals who cannot be vaccinated because of a medical condition, should seek a reasonable accommodation from the employer.

 

Can an employee object to a vaccination requirement based on religious belief?

Yes.  Once an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from receiving the vaccination, the employer must provide a reasonable accommodation for the religious belief, practice, or observance unless it would pose an undue hardship under Title VII of the Civil Rights Act.  In times of a pandemic, whether accommodating a religious belief against vaccination would pose an undue hardship would be determined on a case-by-case basis.  Ordinarily, an employer cannot question the sincerity of an employee’s religious belief.  However, if an employee requests a religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.

 

What happens if an employer cannot accommodate an employee who cannot get vaccinated because of a disability or a sincerely held religious belief or practice?

If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace.

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 personal 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 in the workplace.

 

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. Consistent with the CDC guidelines, an employer may require an employee to stay home if the employee has symptoms of COVID-19 or has tested COVID-19.  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 an employee refuses instruction to travel for business to any other country for fear of catching the COVID-19, try to work out an amicable resolution. For example, the employer and the employee can check and discuss the CDC, State Department, and DHS Travel Advisories, which provide guidance on high-risk and non-essential 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.

CONTACT US

The Noble Law offers consultations and legal advice for employment issues at our Triangle and Charlotte offices, as well as video conferencing for remote clients.

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