Coronavirus FAQs

New California Supplemental COVID-19 Sick Leave

Effective September 9, 2020 – New California Supplemental COVID-19 Sick Leave

Applicable Employers:

  • ALL healthcare providers
  • ALL employers with 500+ employees

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:

  • All health care providers and first responders whose employers elected to exclude them from the Families First Coronavirus Response Act (FFCRA) leave requirements, regardless of the number of employees.
  • All employers with 500 or more employees in the United States must provide this benefit to their California employees.

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.

Tell me all about COVID testing for my employees!

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:

  • Select the right test
  • Document the process
  • Obtain written authorization 
  • Ensure confidentiality 
  • Determine how a positive test will be handled

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: 

  1. Figure out where testing can happen in your area and how it works. 
  2. Pick one or two labs with good reputations.
  3. Establish a working relationship. 
  4. When your employees are seen there, the bill should be sent to your office.
  5. Decide how employees will report their time to you (paper timesheet, digital timeclock.)

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. 

My employee is taking a vacation, do they have to quarantine after?

(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:
  • Does your state/county/city have travel restrictions or isolation orders in place?
  • Where are they going? What are the COVID cases like in that area?
  • How are they getting there (flying, driving, public transportation)?
  • Who are they spending time with?
  • How careful are they, in terms of masks, social distancing, etc.?
  • How careful have their friends & family been?

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.

Helpful links:

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

How do I handle sickness now that we are back to work?

Please review our new Sickness How-To Guide.

My employee is scared to come back to work, or my employee is in a high-risk category, what do I do?

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.

What paperwork is needed to bring an employee back to work?

This depends on the terms, conditions, and paperwork you used when the employee stopped working. Different scenarios call for different procedures.

Find your particular situation and the necessary paperwork on this grid:

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 Changes

and 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 Changes

and 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 Changes

and 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.

** The Status Benefit Change Notice is in the Forms area of the HR Director program.

Information about PPP Loans

Update: 5/5/2020

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.

I don’t have enough available work to bring all of my employees back at full capacity. How do I decide who gets the hours?

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.

My employee doesn't want to come back to work due to receiving higher unemployment wages than regular wages. What should I do?

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.

Should I have all of my employees sign a waiver of liability related to COVID-19 before coming back to work?

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.

Families First Coronavirus Response Act (FFCRA): Sick Leave & Paid Family Leave (HR6201)

Update 7/27/2020:

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.

 

 

Update 5/20/2020:

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!

 

 

Update 5/5/2020:

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. 

Facts:

  • Yes, there is a possible exemption for employers who have fewer than 50 employees.
  • This exemption is only applicable to qualifying reason #5…when the reason for needing paid sick or family leave is due to “child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reason.” Paid sick or family leave for other reasons is still applicable at all times.
  • The exemption is not automatic. Unlike other laws, the exemption is available and can possibly be applied, but it is not a given.
  • No other exemption exists.

Do you qualify for an exemption? Here’s the criteria: 

  • When providing sick or family leave would jeopardize the viability of the small business as a going concern.
  • A small business may claim this exemption if an authorized officer of the business has determined that:
    • The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;  
    • The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or  
    • There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.

 A few things to consider:

  • The FFCRA is in effect from April 1, 2020 to December 31, 2020. While you might be able to claim exemption now, that may not always be the case once you are back up and running later this year.
  • If you are currently closed and have all employees on layoff status, meaning they’re not working any hours at all, FFCRA is currently not applicable. It will only be an issue later once your employees begin working again, whether full or partial schedules.
    • Once you resume normal operations, is it really possible that providing paid sick or family leave would “jeopardize the viability” of your business?
  • You are reimbursed for any paid sick or family leave expenses you incur.
  • Claiming exemption can cause liability. An employee can file a claim against you and challenge your assertion. The Department of Labor has been pretty clear that the burden of proof will be on the employer. Do you really want that liability? Is 80 hours of sick leave or $200.00 a day for family leave, which is completely reimbursed to you, really worth it in the long run?

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:

Part 1 of the webinar.

Part 2 of the webinar.

One requirement of all employers as part of HR6201 is displaying and/or distributing the following poster to the employees. Here is a special FAQ just on the poster.

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.

Quick Facts:

  • Became effective April 1st 2020
  • Expires December 31, 2020
  • It is designed to provide interim temporary relief, not long-term help
  • It has two principal components: 1) sick leave and 2) family leave

To qualify for Sick Leave the employee must be:

  1. Subject to federal, state, or local quarantine, or
  2. Advised by a healthcare provider to self-quarantine, or
  3. Experiencing symptoms and seeking diagnosis, or
  4. Caring for an individual who is subject to federal, state, or local quarantine, or
  5. Caring for son(s) or daughter(s) if school/child care facility is closed or child care provider unavailable, or
  6. Experiencing any other “substantially” similar condition specified by HHS in consultation with the Treasury Department or Department of Labor

** 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 Information

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:

Part 1 of the webinar.

Part 2 of the webinar.

Closing the office or cutting back to emergency-treatment only

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.

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.

Temporary Layoff Letter

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.

My business has to close and/or reduce hours. Do we have to pay employees?

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.

Exempt employees:

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

Non-exempt employees:

Pay may be docked for any and all non-work time.

If we close the business temporarily, can employees file for unemployment insurance?

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.

How does health insurance work if we close the business temporarily?

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.

Can the use of paid time off benefits (vacation, PTO, sick time) be used when an employee is off work?

In general, yes, employees may substitute any paid time off benefits for unpaid time, as applicable for each employee.

If employees have available Sick Leave, PTO, or Vacation, are we required to let employees use that time if they are off?

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.

Can the employer use paid time off benefits (vacation, PTO, sick time) when an employee is off work due to COVID-19, whether initiated by the employee or the employer?

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.

What if an employee comes to work sick? Can employees be sent home? Do I have to pay them for the day?

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.

What if the local schools close and my employees claim that they need to take time off because of a lack of childcare?

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.

Can employees refuse to come to work?

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.

Can I require a doctor’s note before a sick employee can return to work?

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.

Can I require a medical exam before a sick employee can return to work?

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.

Can I take an employee’s temperature at work to determine whether they might be infected?

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.

Can I count absences related to the Coronavirus against the employee’s attendance record and possibly terminate as a result?

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.

May I send an asymptomatic employee home for “self-quarantine” if the employee has been in close contact with a person who has Coronavirus?

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:

  • have close contact with,
  • sat on an aircraft within 6 feet (two airline seats) of, or
  • live in the same household as, are an intimate partner of, or are caring for at home, while consistently using recommended precautions [see here and here for home care and home isolation precautions],” for a symptomatic individual with laboratory-confirmed COVID-19.

CDC defines “symptomatic” as subjective or measured fever, cough, or difficulty breathing. CDC defines “close contact” as:

  1. 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 –

  1. 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.

My employee has recently traveled should I ask them to “self-quarantine” to protect our business?

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

Where can I find more information from the CDC?

Where can I find more information about the current CDC recommendations for employers?

Where can I find more information about the current CDC recommendations for healthcare-specific businesses?

Are there additional resources that I can check out?

Yes, there is the World Health Organization. Here is a link to their webpage specific to Coronavirus: https://www.who.int/emergencies/diseases/novel-coronavirus-2019

You may also want to check out information provided by OSHA. Here is a link to their webpage specific to Coronavirus: https://www.osha.gov/SLTC/covid-19/

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.