Note 1: the FFCRA amounts did not reset on January 1st. Meaning: employees do not have another 2 weeks (up to 80 hours) of FFCRA Sick Leave. If someone used up their FFCRA time in 2020, they cannot use any more FFCRA in 2021. See the FAQ below “What if I’m voluntarily continuing FFCRA and an employee already received some paid FFCRA leave in 2020?”
Note 2: the American Rescue Plan did, in fact, reset the FFCRA Sick Leave as of April 1st 2021. Meaning: employees who used up to 80 hours/2 weeks of FFCRA Sick Leave in 2020 or early 2021 will now have another set of 80 hours/2 weeks. The FFCRA Family Leave did not reset as of April 1st 2021, but there have been other changes, outlined below.
We are now dealing with two different time periods:
In addition, one big change is EFMLA eligibility: the 12 weeks of EFMLA can now be used for all 9 reasons, not just the school/daycare reason.
You should decide soon and make a formal announcement to your employees. Employees will likely hear about this from other sources, so it is best to set the record straight immediately so as to avoid confusion later.
If you’re going to offer EPSL or EFMLA or both, and you’re one of our clients, reach out to us for a new policy and new FFCRA forms. You will want to provide the new policy to your employees so that they understand what’s available to them. Then, if someone takes FFCRA leave, you will need to use the new forms in order to ensure you can document and receive your tax credits.
If you’re going to offer EPSL or EFMLA or both, be sure to administer it exactly as required. Though this is voluntary, all the rules apply for administration purposes.
For help on administering FFCRA, check out our FFCRA How-To Guide here.
In addition, be sure your employees know how time off will be handled if they have an issue related to COVID-19. This can include any of the following:
1. It may be unpaid.
2. It may be paid using any applicable benefit provided such as sick leave or vacation or paid time off.
3. It may be paid under other state law mandates such as New York’s COVID-19 Sick Leave, Colorado’s Public Health Emergency Leave, California’s COVID-19 Sick Leave, or other state/city rules that may apply to you.
4. It may be covered by unemployment insurance benefits.
You will follow the same protocols you always have for an employee who is missing work due to illness.
No. This would be considered protected health information and is strictly confidential. There are a number of federal and state laws that protect against the disclosure of employee medical information in the workplace. Disclosure of this information could result in liability.
Your employees could respond with something like: “Gosh, I’d really like to share that with you, but we have decided as a company to be absolutely committed to compliance and privacy, both for our patients and our employees, so that’s just not something I can share with you.”
The emphasis here is on “we” so the individual employee is not seen as the bad guy, and also emphasizing that there are government regulations that the practice needs to follow. The employee could change the subject by asking “How do you feel about the vaccine?” (Not asking “have you been vaccinated” but rather just asking an open-ended question about what the patient thinks.)
A similar question from a patient could be “I don’t want to see someone who hasn’t been vaccinated.” This is hard to address without indirectly revealing private information about your employees.
In this case, we would recommend a response along these lines: “We are committed to your health, and we are following all required and recommended procedures to keep you safe. We recognize that everyone has to make their own personal decisions for their own health and safety, and we understand and support your decision either way.”
We recommend that you make it simple, easy, free, and encouraged. But we recommend that you not make it truly required.
For more information about exactly why, see the subsequent FAQs.
We have learned that this is how some health departments are rolling out the vaccine. If this is the case for you, it is recommended that you inform your employees of the health department’s procedures so that they know it is available and how it will work. Also, share with them that participation is voluntary. Then ask them to inform you of their desire to be put on the list that will be shared with the health department. If appropriate, provide a deadline for getting back to you.
There is no need to keep the documentation once it’s provided to the health department, nor would you need to keep a list of who didn’t participate. If you do decide to keep this information, be sure it is kept in their confidential and secure medical file.
If the employees are choosing to get the vaccination on their own, you do not have to pay for the time it takes for them to receive it.
If you have chosen to require the vaccination, then, yes, you would pay for the time it takes to travel to and from the vaccination site as well as the time to receive the vaccination. Therefore, if it takes them 45 minutes to wait and be tested, then you’ll add 45 minutes of pay, at their hourly rate, to the next paycheck.
Handling these requests will depend on why someone is asking for the exception. If it is simply that they are an “anti-vaxxer” and don’t approve, or that they’re scared or apprehensive about taking it, or some other personal reason, then you simply need to determine if you will allow this exception or not. Keep in mind that fighting with someone on this issue may not be the best solution. This is why you should consider making the vaccine voluntary rather than mandatory.
On the other hand, if their reasoning is tied to a religious concern, a medical condition, or a disability, then you will need to go through what’s called a “good faith interactive process” in order to determine whether or not the person can be reasonably accommodated. This is because these types of concerns are protected by law and must be carefully managed. This process is fact intensive and is done on a case-by-case basis. It should also involve documentation throughout, which should be kept safe and confidential in case a lawsuit is filed against the employer.
We recommend you contact us to speak with an HR consultant in order to best determine how to manage your unique situations in order to prevent liability.
With or without the vaccine, employees may still end up affected by COVID-19 in some way. The vaccine is not 100% effective. Any time off needs as a result of COVID-19-related issues should be handled the same way as any other illness without regard to being vaccinated or not.
If someone is sick, they should stay home. For non-exempt employees, the time off would be unpaid unless the person has available time off benefits to use such as vacation, paid time off, or sick leave. For exempt employees, docking salary is somewhat complicated, so you should contact us before taking that step
Excessive absenteeism can still be part of your overall performance management of employees. Unless someone’s time off is protected by law, it can be counted against them and ultimately lead to possible termination. At this time, illnesses such as the flu, cold, and other ordinary illnesses are not protected unless you reside in an area that requires paid leave such as sick time. In that case, time used under these laws for ordinary illnesses would be protected.
As we know, COVID-19 has a significant range in terms of how it affects someone’s health. Everything from no symptoms to death. As the seriousness of COVID increases, so do likely the protections for the employee. For example, testing positive and staying home to quarantine as a precaution, likely no protections. Being hospitalized, definitely some protections. As such, employers should exercise caution before taking too drastic of measures when dealing with employees who are absent due to COVID-19 in order to avoid problems and liability.
In simple terms, yes, you can. Employers can have a policy making vaccinations a condition of employment.
At this time, nothing has changed in terms of PPE, OSHA, CDC, employee/patient/client screening, ADA recommendations, infection control, etc. Therefore, your in-office procedures should stay the same regardless of whether someone has been vaccinated or not. So, at the moment, it doesn’t matter whether an employee has received the vaccine or not. All of your normal procedures will be followed.
Down the road, as more people get vaccinated, there might be changes in recommendations from CDC, ADA, OSHA, and others. People who have been vaccinated may be allowed to behave differently in the workplace, but we are still a long way from that.
For non-exempt employees, no, the time off could be unpaid and treated like any other absence. Of course, nothing prevents you from paying for their time off as a nice gesture.
If the time off is unpaid, then if you provide sick leave or vacation or other paid time off, the individual could elect to use their available time, if applicable, to substitute for the unpaid time off.
If you have chosen to mandate this vaccine, you may consider paying for their time off without the use of other available benefits. The person would have been able to work were it not for your requirement, so it would seem only appropriate for the employer to pay the individual for their troubles in consideration of them complying with your rules.
The question of pay gets a little stickier as it relates to exempt employees. It may be best to contact us for additional support in this area if you want to dock someone’s salary for time off taken in this situation.
Yes. If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the Americans with Disabilities Act (ADA).
According to the Equal Employment Opportunity Commission (EEOC), there are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related. Simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry. However, subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be “job-related and consistent with business necessity.”
Given that our area of expertise is employment compliance, focused 100% on the employer-employee relationship, we do not know if this would be possible. It would not seem to be appropriate or even feasible to have such a requirement if you want to be successful, but you may need to seek advice from other sources who are more knowledgeable in this area before taking such a drastic step.
If you are a healthcare provider, this may be a possible avenue for you to take, but you should not do so without careful consideration of the risks. There are many laws that interact with administering the vaccine yourself and the risk for problems and liability is substantial. It would be more beneficial to let outside, third-party professionals handle this in order to keep your exposure to problems to a minimum.
If the employee is not sick with COVID, then you would follow your normal protocol for a sick employee.
If the employee is sick with COVID (or they have COVID symptoms and don’t know yet for sure whether it is COVID) then here are the wage payment options/categories:
Generally, the answer is Yes.
As long as there is a legitimate reason for the test (such as exposure to someone who is/was COVID positive) you can require the employee to get tested.
Note: this extra paid time is separate and on-top-of any other pay the employee is receiving. For example: if the employee is receiving 8 hours of FFCRA Sick Leave, they need to be paid the 45 minutes of testing time in addition to the FFCRA time.
Start by calling the health department and also following your own protocols for when an employee is symptomatic (isolating, wearing a mask, not working around others, leaving the office, etc.) Depending on the symptoms and the specifics, the health department may recommend or require you to close the office.
Even if the health department allows you to stay open, you may still have to close or at least cancel certain patients and procedures. You can also consider contacting your attorney, workers compensation carrier, general liability carrier, and malpractice carrier to discuss the pros and cons and implications of staying open vs closing.
Start by calling the health department and also following your own protocols for when an employee is symptomatic or positive (isolating, wearing a mask, not working around others, leaving the office, etc.) Depending on the symptoms and the specifics, the health department may recommend or require you to close the office.
Even if the health department allows you to stay open, you may still have to close or at least cancel certain patients and procedures. You can also consider contacting your attorney, workers compensation carrier, general liability carrier, and malpractice carrier to discuss the pros and cons and implications of staying open vs closing.
Here are the wage payment options/categories:
Note: if there is no work available for the employee due to an office closure, then the employee is not eligible for the FFCRA. The FFCRA is designed to be a wage replacement benefit, therefore if there are no wages to replace, then FFCRA is not applicable.
Possibly. This depends on the circumstances. Here are the wage payment options/categories:
In terms of what you “should” do, that is impossible to answer without all the information about who was exposed, when, where, for how long, in what context, with or without masks, when was the person positive, when were they contagious, when did the person find out, etc. You’ll want to contact your local health department and get their recommendations.
In addition to the health department, the employee’s treating physician, or their spouse/child/family member’s treating physician may have recommendations for working, not working, quarantining, etc. If this is the case, you’ll want to follow whatever the treating physician recommends.
As the employer, you always have the right to take an employee off the schedule. This is not the same as a “quarantine.” It is similar to when you take an employee off the schedule due to slow business needs.
If the employee is not working, here are the wage payment options/categories:
Here are the wage payment options/categories:
Here are the wage payment options/categories:
The answer to this would depend on your local health department and their recommendations, along with the particular circumstances, such as length of exposure, timing of when the employee was contagious, etc. We would defer to the health department’s recommendations or requirements.
The health department may have specific requirements for you to follow, but generally-speaking it is customary to inform the other employees or at least any other employees who had contact with the infected employee.
Note: when you inform others, do not use the employee’s name. You will keep the communication general and say something along the lines of “We have been notified that someone on the team has tested positive” or “Another employee who you have had contact with has tested positive” or “I have been notified that there has recently been exposure to COVID here at the office on or around [date].”
In a small office, everyone will know exactly who it is in about 2 seconds. But as the employer/office manager, you should not be giving out health information about specific employees.
There are many variables in this situation. If you haven’t already, contact your local health department and consider their advice.
Employers are not required to provide COVID testing for their employees.
Be sure to ask the health department about testing timing: some experts recommend waiting 4-5 days after exposure before testing. An employee who is tested the same day or the day after exposure will most likely test negative, even though they might be infected and show symptoms or a positive result later.
Be careful how you frame this with employees: avoid saying things like “You should get tested” or “You should go see your doctor” or “I think it would be a good idea to get tested.” These phrases can put you in “Medical Examination” territory and require you to pay for the cost of the test, and the employee’s time getting tested.
If you require, recommend, encourage, or emphasize testing, or if you say that an employee “should” get tested, then this can qualify as a Medical Examination and you would be required to pay for the full cost of the test, and also pay for the employee’s time going to the clinic and being tested. See the question “Can I require an employee to get a COVID test?”
Effective September 9, 2020 – New California Supplemental COVID-19 Sick Leave
On September 9, 2020, Governor Newsom signed AB 1867, a bill that requires covered employers to provide COVID-19 supplemental paid sick leave to their employees for certain qualifying reasons. This bill went into effect immediately.
A little history…
On April 16, Governor Gavin Newsom signed Executive Order N-51-20, creating a COVID-19 Supplemental Paid Sick Leave that requires employers, who are covered by Industrial Welfare Commission Wage Orders 3, 8, 13 and 14, Health & Safety Code section 113789 and have 500 or more employees, to provide up to two weeks (80 hours) of supplemental paid sick leave to food sector workers unable to work due to COVID-19.
AB 1867 broadly expands the paid sick leave coverage to the following:
Must be provided beginning no later than September 19, 2020.
COVID-19 Supplemental Paid Sick Leave remains in effect until December 31, 2020, the same date that the federal law that provides supplemental paid sick leave is set to expire. However, if the federal law is extended, then COVID-19 Supplemental Paid Sick Leave under California law will be extended to the same end date as the federal law. If the law expires while a worker is taking COVID-19 Supplemental Paid Sick Leave, the worker can finish taking the amount of leave they are entitled to receive.
The California Division of Labor Standards Enforcement (DLSE) has issued guidance on the new COVID-19 supplemental paid sick leave requirements. Click here for a link to their FAQs which answers employers’ common questions about coverage, eligibility, calculating leave amounts and pay, and how previously provided paid sick leave under local ordinances, for example, maybe credited toward the new law’s requirements.
The DLSE has also issued two model posters that employers may use to comply with the new law’s notice requirements. One for food sector workers, and a second for all other covered employers. Employers can download the posters and distribute as appropriate. Click here for the non-food sector poster.
Covered employers must display posters in a conspicuous place that informs employees about COVID-19 supplemental paid sick leave, but if an employer’s eligible workers don’t frequent a workplace, the employer may send the notice through electronic means (e.g., email).
Finally, employers outside of the food sector will need to update their wage statements to provide employees notice of the amount of COVID-19 supplemental paid sick leave available each pay period under the new law.
Here is some useful FAQ information from the Treasury Department.
Congratulations on being one of the lucky ones to receive PPP loan funding.
First and foremost, think of your PPP loan as just that—a loan, with very favorable terms. Use the funds with discretion and make sound business decisions. In particular, don’t get too caught up in the PPP forgiveness aspect and make bad staffing decisions that can haunt you moving forward.
Unlike any other business challenge you may have faced in the past, this one is unique because of all of the moving parts you have to simultaneously consider, like: grants; EIDL loans; PPP loans; PPP loan forgiveness; state and local mandates; CDC/OSHA/ADA guidelines, recommendations and requirements; scarcity of supplies (PPE’s); FFCRA compliance; unemployment wrinkles; employee availability (school & day care closures); and a plethora of other issues that we may now refer to as the “new normal” that we have to contend with. And above all else is the ongoing health and safety of your patients/customers and employees.
While your PPP loan is designed to be principally used for payroll, rent and utilities, it can be used for anything you want to use it for. The PPP loan forgiveness provisions, however, are only applicable when PPP funds are used for the approved expenses (with at least 75% going to payroll) during the 8-weeks from funding, and only if, by June 30th, your wages are back to at least 75% of what they were on February 15th, and your staffing level is equal to what it was on February 15th.
It does not make good business sense to use PPP funds and pay employees a full or partial wage to stay home and do nothing, just to meet the forgiveness provisions.
Employment to work on projects, call patients, and do online CE could be a good use of PPP funds, but this may risk adherence with the “emergencies-only” and certain shelter-in-place orders—again lots of interlaced moving parts.
Naturally, everyone is excited about the forgiveness possibility with PPP loans, and that is very enticing. However, the allure of forgiveness is not worth making an unintended mistake, or doing something that could lead to liability in another area.
We have made significant updates to our FFCRA How-To Guide based on the latest information from the Department of Labor. Please refer to the Guide for the latest information.
We have created a new FFCRA How-To Guide that will take you step-by-step through this process. It includes the information below. Please check it out!
There’s been a lot of talk about a “small business exemption” from the new Families First Coronavirus Response Act (FFCRA). Information is coming from a number of sources and causing confusion. We want to address some of those aspects and hopefully create some clarity for our clients.
Do you qualify for an exemption? Here’s the criteria:
A few things to consider:
If you decide to move forward with exemption, you should carefully and thoroughly document why your business meets the criteria set forth and keep it for at least four years. You do not send any materials to the Department of Labor.
Claiming Tax Credits:
The IRS has released details about claiming tax credits for the use of paid sick leave and paid family leave under HR6201. Here is the information.
The Department of Labor updated their FAQs about HR6201, the federal bill that passed recently.
This update provided additional information that is important and may be applicable to you. As always, don’t hesitate to reach out if you have questions regarding your unique situation.
On Friday April 3rd we did a webinar that touched on HR6201. Here are the recordings:
Note: it has become clear that defining your employees’ status moving forward is important.
Category 1: Employees Who Remain Employed and Working
These are employees who continue to work their normal schedule or a reduced schedule. They may be working from home or the office. The key distinction is they are still working, and, therefore, an employee. They are not laid off or terminated.
Category 2: Employees Who Are Not Working
They may be on a furlough (or temporary layoff) or a permanent layoff (employment has ended) due to certain economic conditions or because the work place is closed for a few weeks or a few months. These employees are not scheduled to work at all.
Please look over the updated DOL FAQs with the above categories in mind, particularly questions 18 – 28.
Generally speaking, the paid sick leave and paid family leave requirements of HR6201 apply to Category 1 employees only, and thus do not apply to Category 2 employees.
To qualify for Sick Leave the employee must be:
** These are the only qualifying criteria for this sick leave, no other condition, circumstance or situation qualifies for this particular sick leave benefit.
** The maximum amount of sick leave is 80 hours for a person working 40 hours per week; otherwise prorated based on average work hours.
** Sick leave pay is = normal wages up to $511 per day for numbers 1-3 above
** Sick leave pay is = 2/3 wages up to $200 per day for numbers 4-6 above
Paid Family Leave:
Employees must have worked 30 days with the employer to qualify.
** The family leave requirement only applies to criteria 5 and 6 above
** If qualified, an employee can receive up to 12 weeks of leave
** The first two weeks are unpaid
** The remaining 10 weeks’ pay is = 2/3rds normal wages up to $200 per day [$10,000 in the aggregate.]
For now, we are recommending that offices do what is best for them, their employees, and their patients right now in this moment. If the best thing is for you to take care of emergency patients, continue to do that. If it’s best to close your practice entirely and temporarily lay off your employees, then go ahead and do that.
If you need to lay off employees temporarily, please use our form here: [link]
The CARES Act contains provisions that are mostly outside the HR compliance scope. The bulk of the provisions that affect our clients have to do with expanded unemployment benefits (handled by your state unemployment department) and small business loans (coordinated through the Small Business Administration.)
We did a webinar on Friday April 3rd that touches on the CARES Act. You can view it here:
One of the main reasons that employers may want to refrain from disciplining employees under these circumstances is the large number of employees whose attendance records will be adversely impacted. Having a large percentage of the workforce subject to termination because of attendance issues would be extremely disruptive to an employer’s continued business operations and would have a negative effect on employee relations. Additionally, applying discipline for taking time away from work because of Coronavirus might encourage employees who already have attendance issues not to reveal their Coronavirus symptoms rather than risk termination.
There are many laws that can come into play in this kind of situation, so caution should be exercised when deciding whether or not to terminate an employee.
While an employer can certainly exercise his/her prerogative to terminate an employee, it may result in significant liability due to the certain protections. If the employer did terminate employment, it must be based on a legitimate and non-discriminatory reason in which business necessity could be proven.
Only if the employee falls into certain CDC risk categories (as explained in the answer above). Among the considerations for these risk categories is travel to certain areas with “widespread sustained” transmission (i.e., covered by a CDC Level 3 Travel Health Notice). As of March 8, 2020, those areas include China, Iran, South Korea, and Italy. There currently are no travel advisories related to travel inside the United States, but employers can closely monitor updates from the CDC and state and local public health authorities. The CDC has advised that determinations should not be made based on race or country of origin.
Here is a link for more information about travel from the CDC: https://www.cdc.gov/coronavirus/2019-ncov/travelers/index.html
Yes, if the asymptomatic employee fits within certain categories established by the CDC’s guidance (last updated on March 7, 2020), which categorizes employees based on (a) symptoms (i.e., symptomatic or asymptomatic) and (b) risk (i.e., High, Medium, Low, or No Identifiable, which takes into account both (1) travel destinations and (2) level and type of contact with symptomatic individuals).
Under the CDC guidance, employees who are asymptomatic may be excluded from the workplace, if they:
a) being within approximately 6 feet (2 meters) of a COVID-19 case for a prolonged period of time; close contact can occur while caring for, living with, visiting, or sharing a healthcare waiting area or room with a COVID-19 case
– or –
b) having direct contact with infectious secretions of a COVID-19 case (e.g., being coughed on).
There are different standards and CDC guidance for healthcare employees. Please use the link above under “Helpful Resources” to learn more.
The Americans with Disabilities Act (ADA) places restrictions on the inquiries that an employer can make into an employee’s medical status, and the Equal Employment Opportunity Commission (EEOC) considers taking an employee’s temperature to be a “medical examination” under the ADA. See above regarding the restrictions on medical exams.
Taking an employee’s temperature may be unlawful if is not job-related and consistent with business necessity. The inquiry and evaluation into whether taking a temperature is job-related and consistent with business necessity is fact-specific and will vary among employers and situations. You should exercise caution before relying on media reports in an attempt to justify the taking of temperatures of your employees without objective evidence that there is an actual threat to your business. Moreover, as a practical matter, an employee may be infected with the COVID-19 coronavirus without exhibiting recognized symptoms such as a fever, so temperature checks may not be the most effective method for protecting your workforce.
This is a very unprecedented event that will affect thousands of people in the area. Any childcare facilities that remain open will be inundated and quickly overwhelmed. This will likely impact all employers in the area in one way or another. In light of this, a certain amount of patience, support, and understanding is likely warranted from employers. You can encourage employees to seek childcare options, so the business is minimally affected. However, taking disciplinary action against an employee because of this may not be the best strategy.
Also, if you are governed by a mandatory sick leave rule or family leave benefit, remember that caring for one’s children may be protected usage for sick leave or family leave. Therefore, these situations need to be handled carefully.
Nothing prevents an employer from sending an employee home who is sick at any time. Pay requirements will differ between exempt and non-exempt employees.
Non-exempt employees only have to be paid for time actually worked. Thus, if a non-exempt employee only worked 6 hours and was then sent home, then only 6 hours of pay is required. The one caveat to this is if a state requires “reporting time pay.”
Currently these states are: California, New Hampshire, New Jersey, New York, Rhode Island, and Massachusetts. In these states, additional pay may be required depending on when the employee is sent home. Please read the “Reporting Time Pay” policy in your policy manual for more information.
Exempt employees must be paid for the full day even if they are sent home early.
As COVID cases rise and people socialize, you are likely to be confronted with a situation in which having your employees get tested seems like the right path to take. Before going down this path, know this:
Employers do not have an automatic right to require COVID testing.
Employers cannot require anti-body tests.
COVID testing is not something employers can take lightly or without proper planning. Employers cannot simply, on a whim, tell/require employees to get tested. This must be done judiciously.
If an employer will require COVID testing for any employee, the employer must ensure that the testing procedure is legally compliant, reliable, and effective. In part, employers must:
When a situation presents itself in which COVID exposure or business/practice safety is a concern, do not jump to immediately requiring a test. COVID-19 testing is not 100 percent reliable. It is possible for an employee who is infected with the virus to test negative, and for an employee who does not have the virus to test positive. COVID-19 testing should not provide employers with a false sense of security; even if all employees in the workplace have tested negative for COVID-19, maintaining physical distancing and proper hand hygiene, wearing face coverings and personal protective equipment, and following the CDC’s cleaning and sanitation protocols are the best methods for preventing COVID-19 in the workplace.
If exposure is a concern, keeping the employee home for a period of time, monitoring symptoms, and having the employee manage their own healthcare needs (seeing a MD, getting tested, etc.) is likely the best choice.
If/when you do require a COVID test, then following must be considered:
Who pays for the COVID test?
As always, “it depends.”
If the employee initiates the test entirely on their own, or their treating physician orders it, or the employee is instructed to get tested by the health department, then the employer is off the hook.
If you, as the employer, require a COVID test, then you have to pay 1) for any out of pocket cost associated with getting the test (see below regarding health insurance), and 2) the employee’s hourly wages while traveling to the clinic, waiting in line, being tested, and returning.
Language is important: if you say someone “should” get tested, or you “encourage” them, or you say “it would be a good idea,” or if you make a negative test result a requirement for returning to work, this is the same as you “requiring” the test.
Be proactive about testing: Do your research now:
If you are requiring the test, and your office provides a group health insurance plan, and employees just have a copay for COVID testing, you would be responsible for the copay and not the entire test.
If you are requiring the test, and your office does not provide health insurance, then employees should not be using their personal health insurance for the COVID test. Your office should be paying for 100% of the cost.
Check out our Handling Employee Sickness Guide for help and guidance.
Don’t hesitate to reach out if you have questions regarding your unique situation. We are back to normal response times for calls and requests.
(This information is primarily for domestic travel. For international travel, please see the CDC guidance at the end of this question.)
Fundamentally, this is a tricky situation because employers are not responsible for the legal activities performed by employees during their off-hours. When an employee is clocked in, they are the employer’s responsibility. Once they clock out, it is difficult if not impossible for the employer to micro-manage everything they do.
There is not a one-size-fits all approach to these situations. There are so many variables:
These are not questions that you typically ask an employee when they request time off. Even in the post-COVID landscape, asking these types of questions may not be a good idea.
In terms of assessing the risks and charting a path forward, however, these are exactly the questions that need to be answered. The question is whether this responsibility falls on the employer, or the local health department, or someone else? At the moment, this is not clear. Stopping this pandemic depends, in part, on the individual choices made by everyone; we are all in each other’s hands, so to speak.
Here are some things to keep in mind:
You are absolutely allowed to tell an employee to avoid work for 14 days after they return. It is within your rights as an employer to adjust the schedule depending on the facts of the situation.
You are allowed to create policies based on circumstances, such as a mandatory quarantine for 14 days if someone travels out of state, or if they travel to a known “hot spot.”
Obviously, this can be very disruptive to business operations.
If the question is “should” you tell employees to quarantine for 14 days, that’s a question we really can’t answer, due to all the many variables above. If you haven’t already, we would recommend contacting your local health department and see what they have to say, given the particular circumstances.
Vacations are not a guaranteed benefit, meaning the office is not required by law to approve vacation time. If an employee is traveling, or is traveling to a certain place, you can have a policy to simply deny their request.
Keep in mind that traveling is not necessarily more dangerous than staying in town. An employee could “travel” for their vacation, but do it in a personal vehicle, with little to no interaction with others, go camping outdoors, and remain socially distant. Another employee could remain in town and attend an indoor party with dozens of strangers, none of whom are wearing masks.
If you have a blanket policy of denying any and all vacation requests that involve travel, this can have the consequence of employees lying about where they are going.
We recommend having regular check-ins with your employees, reminding them about being safe and responsible outside of work. You cannot truly control or dictate exactly what they do during their off-hours. And yet, you can remind them of your commitment to safety, to keeping the other employees and the patients/customers safe. It’s also worth remembering that this pandemic will pass eventually, and these restrictions are only temporary.
A common question is: “Can I or should I require that they get tested before returning to work?”
Here are two important notes regarding testing:
1. Timing: keep in mind the timing of when someone might have been exposed, when they have a viral load that can be detected, and the timing of when the test is performed. Just because an employee tests negative the day they arrive back from vacation, does not mean they are truly “clear.” If they caught the virus during the final days of their vacation, a test when they get back may not actually work.
2. Costs: if the employee elects on their own to get tested, then that is fine. If the practice requires a test, or says that someone “should” get tested, or allows someone to return to work sooner than 14 days if they get tested, then the office needs to pay for the cost of the test and the employee’s time going to the clinic and being tested.
Lastly, always keep in mind who the pandemic experts are: the local and state health departments, the CDC, and similar agencies. When it comes to stopping the pandemic and the best actions to take, these agencies should always be consulted. They cannot eliminate all risk, they are doing the best they can, and they know much more about this issue than the rest of us.
CDC Guidance on Travel Within the US: https://www.cdc.gov/coronavirus/2019-ncov/travelers/travel-in-the-us.html
CDC Guidance on International Travel: https://www.cdc.gov/coronavirus/2019-ncov/travelers/after-travel-precautions.html
Our current position on having employees sign some type of COVID-19 liability waiver is: we question the value of these waivers and we question how much protection they would provide.
What you need to focus on is ensuring workplace safety and following the latest CDC, OSHA, public health, and ADA guidelines and protocols. The best way to protect yourself is to proactively engage all employees in being involved with and requiring them to take all precautions through training, orientation, and reminders.
Peace of mind will come from knowing you are doing all of those things right; not from a signed form or letter.
If it can be shown/proven that you were negligent, remiss or ignored taking all of the necessary steps/precautions to ensure a safe work environment (or essentially were using the waiver as a “get-out-of-jail” card to not do those things), then a signed letter or waiver is not going to help.
It’s also worth considering the message you send by having all employees sign a document like this, especially if other employers are not.
From an HR perspective, COVID-19 carries similar risks as other diseases that might be contracted in the workplace and liability waivers have not been viewed as valuable or beneficial.
If you are (or have been) taking all of the necessary steps, and an employee contracted COVID-19, it would be hard to make the case that you were negligent or personally responsible for the transmission.
Additional resources can be your worker’s compensation and liability insurance carriers.
In addition to the information below, please review our Reinstatement Guide.
On one hand, we can all appreciate the dilemma that these employees are in. We certainly don’t want them to start working the limited hours that are available and lose their unemployment benefits, resulting in a huge drop in their overall income. Especially if it is unclear when they will be able to get back up to full capacity work.
On the other hand, the special $600 unemployment benefit will not last forever—it ends July 31st—nor will regular unemployment benefits. Employees can roll the dice on the future and turn down employment at your office, hoping to earn unemployment benefits for some number of weeks or months, and then return to the workforce. However, when that time comes their employment opportunities may not be as plentiful as they think. This is their dilemma to navigate, not your problem to solve.
Consider working with your employees to solve the problem. As long as the $600 ‘kicker’ is in place, the goal is having your employees receive weekly compensation from you that doesn’t exceed their weekly unemployment. Therefore, they work for you (benefiting them and you); they still qualify for unemployment; and they still receive the extra $600.
Perhaps you can spread the hours among several employees so that each person is working, yet is still eligible for unemployment benefits.
When you need someone back at full capacity, they should recognize the opportunity and return to work, even if this means a slight drop in their total compensation. If they refuse, then they are effectively resigning their position.
Similar to raises and promotions, this process carries the risk of favoritism, as well as discrimination claims.
You’ll want to make sure that you have objective, clear, documented reasons for who returns to work and who receives the hours. One example is seniority: employees with the most seniority receive the most hours. Other examples could include employees who are cross-trained in certain areas, individuals with special licenses/certifications, or full-time employees returning to work before part-time employees.
As always, you want to avoid decisions (and the appearance of decisions) based on protected classes, such as age, race, sex, religion, color, national origin, pregnancy status, etc.
|Did you do a…..?||Meaning:||Are you changing their employment details?||Necessary Form(s):|
|“Furlough”||The person stayed “employed” with you, they stayed on payroll, you did not end their employment||No. They will have their original hire date, same wage, same employee classification, same benefits.||Reinstatement Recall Letter Basic|
|Yes. Their wage is changing, their benefits are changing, etc.||Reinstatement Recall Letter For Job Changesand the “Status or Benefit Change Notice” **|
|“Temporary Layoff”||The person stayed “employed” with you, they stayed on payroll, you did not end their employment||No. They will have their original hire date, same wage, same employee classification, same benefits.||Reinstatement Recall Letter Basic|
|Yes. Their wage is changing, their benefits are changing, etc.||Reinstatement Recall Letter For Job Changesand the “Status or Benefit Change Notice” **|
|“Temporary Layoff”||The person did not stay employed with you. You ended their employment fully, paid out applicable benefits, ended insurance payments, and issued a final paycheck appropriately||No. They will have their original hire date, same wage, same employee classification, same benefits.||Reinstatement Recall Letter For Job Changes|
|Yes. They will have a new hire/rehire date, their wage is changing, their benefits are changing, etc.||Reinstatement Recall Letter For Job Changesand the “Status or Benefit Change Notice” **|
|Full Layoff/Termination||The person did not stay employed with you. You ended their employment fully, paid out applicable benefits, ended insurance payments, and issued a final paycheck appropriately||Yes. They will have a new hire/rehire date, their wage is changing, their benefits are changing, etc.||Full new-hire paperwork, as if they were a new employee.|
In addition to the information below, please review our new Reinstatement Guide.
First, engage in a dialogue with the employee about their reasons. Are they worried about contracting the virus from a co-worker? Or a patient/customer? Do they have someone in their household who is high-risk? Find out what could be done to alleviate their concerns. Would additional PPE make a difference? Or more space between workstations?
Second, make sure that your office is following the latest OSHA, CDC, ADA, and public health recommendations and requirements. You may need to update some of your SOPs and make physical changes to your office.
If you have done everything above, and an employee is absolutely unwilling to return to work regardless of any and all accommodations, then this may need to be treated as a leave of absence or voluntary resignation depending on your state. Due to the potential ramifications of this, we would recommend speaking with one of our HR Specialists before taking your final action.
Also, be careful about making safety decisions for your employees. This is usually done with good intentions to protect your team. However, this can easily lead to a discrimination claim. For example, if you have 4 employees under the age of 40, and one employee in her 60’s. While you gradually increase the business level back to normal, you tell the older employee to stay home and stay safe, while allowing the younger employees to return to work. This can result in an age discrimination claim.
If an employee is high-risk or doesn’t want to work for some reason, we strongly recommend speaking with and HR Specialist before ending employment or taking a strong stance against the employee.
The American Dental Association (ADA) as well as many state dental associations have recommended that dental practices close for non-emergency procedures. This has prompted many questions. All of the information below also applies if you cut back your work hours significantly, but are technically still “open.”
For our non-dental clients, the information below applies to you as well if you have been ordered to close, or if you choose to close, or some entity recommends that you close.
If you haven’t already, please review our Coronavirus FAQs which are constantly being updated as this unfolds.
If the business needs to close entirely, or limit the work hours, you are not required to pay non-exempt employees for the time they are out. If you choose to pay people for some or all of the time off, as a special bonus, you absolutely can. For the payment of wages to exempt employees, please see our FAQs.
Using PTO/Sick Leave/Vacation:
In a closure or limited-hours-situation, if employees have PTO/Sick/Vacation available, please refer to our Coronavirus FAQs about the usage of these benefits. It depends on your state and your particular situation.
Unemployment & Laying Off Employees:
Employees are able to file for unemployment during any business closure or time of reduced scheduling.
If you are temporarily laying off employees, and they will be doing absolutely no work at all, we recommend using our Temporary Layoff Letter.
If employees are still working on an on-call basis only, you can use the temporary layoff letter and state that in the document.
If employees are still working, doing projects, online training/CE, and other duties, then they are not laid off. You can use our Status/Benefit Change Notice form to document the drop in work hours and the change in duties.
Every state is different in how their unemployment department works. Some states take into account vacation/PTO/sick pay, others do not. Some have a waiting period and some do not. If you or your employees have specific questions about unemployment, please contact your department directly for the most accurate and up-to-date information.
Let your employees know the situation and that you will be cutting back on hours or closing altogether. Encourage them to apply for unemployment. Depending on your state and your benefits, as well as your financial position, you can determine whether PTO/Sick/Vacation can be used. See our other FAQs on this topic.
If you are not seeing patients or customers, you can consider having employees work on projects or other tasks. Of course, this depends on your financial position, given that you will not be producing revenue during this time.
Federal Stimulus Package:
There has been a lot of talk in the past couple days about a federal stimulus package that includes paid sick leave and paid family leave. The House passed a bill, and the president has sought stimulus funding as well. However, none of this has been finalized and everything is subject to change.
Until an actual bill has been approved by the House, Senate, and signed by the President, there is nothing for anyone to do. Speculation and rumors are not helpful. Until something is finalized, any income for employees will have to come from wages, paid time off benefits (PTO/Vacation/Sick Leave), or from unemployment benefits.
If the employer believes it is in their best interest to close the business, for any reason, but particularly for something like a Coronavirus/influenza outbreak, then they have the right to take that action. Similarly, if the business is required to be closed by some agency or entity, the following also applies.
Whether or not the employees are paid while off work will depend on their exempt/non-exempt status.
If the absence is initiated by the employee (including for his or her own illness or that of someone for whom he or she is caring), the employer may dock the exempt employee for full-day absences only, provided no work of any kind is done during the course of the day, even from home, like checking and answering emails.
If the absence is initiated by the employer (e.g., the employee must stay home for a mandatory quarantine period, even though he or she is asymptomatic and willing to come to work, business closure), the employer may dock the exempt employee only for full seven-day absences that coincide with the employer’s pay week so long as no work is performed during that entire absence.
Pay may be docked for any and all non-work time.
Yes. Given the circumstances, the individual will likely be eligible for benefits. There is always a waiting period before benefits will be paid out, however. If an employee has not otherwise satisfied the required waiting period, then this will need to occur first and payout will begin. Waiting periods vary from state to state and are generally 1-2 weeks.
We recommend that you start by contacting your carrier about this. The answer to this question depends on how many employees you have, the way your particular plan is written, what your eligibility criteria is, how long your closure lasts, your particular state leave of absence laws, and may depend on the outcome of the stimulus package (see the FAQ above on the Federal Stimulus.)
If you are only closed for a couple weeks, nothing will change or be adjusted. If the closure is longer, there may be some implications based on the variables above.
In general, yes, employees may substitute any paid time off benefits for unpaid time, as applicable for each employee.
This could be as a result of them choosing to be off or because we mandate them to be off due to business closure. We are concerned about the financial impact given that we won’t have revenue coming in.
Generally speaking, you are not required to pay out these benefits to employees in these circumstances. More than likely, employees will request at least a partial usage/payment depending on the timing. You may want to review your policy manual in case there is specific language one way or the other.
Given the extreme nature of the current situation, we would recommend not taking a hard stance, and being as flexible as possible. If you can work with employees and pay them for some or all of the time, without it having a detrimental impact on the business financials, that would be ideal.
If you are governed by a city, county, or state with mandatory sick leave or other paid leave rule, then you may be required to payout those benefits even if it is your preference to not, depending on the circumstance that led to the employee being off. For example, an employee who is sick and stays home would have the right to use sick leave benefits. Whereas an employee who stays home just because it is their preference would likely not qualify.
In all states and cities or counties that do not have mandated sick leave laws, yes, employees can be required to use these benefits during periods of non-work.
In states and cities or counties that have mandated sick leave laws, the use of sick time may not be mandated if the absence does not qualify for sick leave usage. However, employees could choose to use sick time voluntarily. If the reason for the absence qualifies under the sick leave rule, then it is allowable for the employer to require the use of available sick time.
The Occupational Safety and Health Act contains a “General Duty” clause which requires employers to provide a workplace free from recognized hazards that are likely to cause serious harm or death. Also included within this clause is the ability for employees to refuse to work if certain conditions apply.
The circumstances in which an employee can refuse to work are limited. Employees may refuse to work only if all of the following apply (a) they reasonably believe that doing the work would put them in serious and imminent danger; (b) they have asked their employer to fix the hazard; (c) there is no time to call the Department of Labor’s OSHA Administration; and (d) there is no other way to do the job safely. It is important to note that an employee is not protected for simply walking off the job.
In general, if an employee refuses to work because s/he believes in “good faith” that s/he is in imminent danger, it is his/her protected right to do so. “Good faith” means that the worker had reasonable grounds to believe imminent danger existed, even if that danger isn’t found to exist.
Although it is entirely possible for an employer to impose disciplinary measures to an employee for refusing to come work, taking that action may be ill-advised given the protections employees have. As a matter of practicality, it may be best for everyone involved if the employer allows for some flexibility during an influenza outbreak such as the Coronavirus.
Each situation will need to be handled on a case-by-case basis. For example, employees refusing to come to work because another co-worker had close contact with a family member who was sick with the Coronavirus may have a “good faith” belief that danger exists. On the other hand, simply refusing to work because the Coronavirus had materialized in the same city probably does not qualify.
A doctor’s note should not be a prerequisite for returning to work, according to the CDC.
This is in part because this requirement would place a high burden on the healthcare system, and healthcare provider offices and medical facilities may not be able to provide documentation in a timely fashion.
Though the CDC’s guidance urges against requiring a return-to-work note, if the employee’s illness is a “serious health condition” under the FMLA (applicable to employers with 50+ employees within a 75-mile radius), the employer would be able to require a return-to-work note if the employer complies with the FMLA’s guidelines for requiring such documentation, including, among others, notifying the employee in the initial determination that fitness-for-duty notes will be required and consistently applying the requirement to all FMLA leaves.
The Americans with Disabilities Act (ADA) strictly limits when an employer can request an employee to submit to a medical exam. The ADA prohibits employers from requiring medical examinations and making disability-related inquiries unless (1) the employer can show that the inquiry or exam is job-related and consistent with business necessity, or (2) the employer has a reasonable belief that the employee poses a “direct threat” to the health or safety of the individual or others that cannot otherwise be eliminated or reduced by reasonable accommodation.
In this circumstance, if the employer believed the employee posed a “direct threat” to the workplace because of the medical condition, then a submission to a medical exam may be legal. In assessing whether an employee poses a “direct threat,” the employer must base that judgment on the most current medical knowledge and/or best objective evidence.
The employer may specify the healthcare professional that the employer chooses, but the healthcare professional should have expertise in the employee’s medical condition. Moreover, the employer must pay the cost of the medical exam. If the employee is covered by the employer’s health insurance, then the employer need only pay for any out-of-pocket cost not paid by the health insurance plan.
Yes, there is the World Health Organization. Here is a link to their webpage specific to Coronavirus.
You may also want to check out information provided by OSHA. Here is a link to their webpage specific to Coronavirus.
Click here to download and read OSHA’s pamphlet on preparing workplaces.
Click here to download a quick guide from the CDC and use it to post in the workplace or handout to employees.
Employers also should consider reviewing pertinent guidance from state and local public health authorities on appropriate responses to exposure risks, especially as situations change. Click here for resources by jurisdiction.