As we all address the COVID-19 pandemic and its economic impacts, lawyers hear questions time and again about how to treat sick employees and sick leave. Most employers today have sick leave policies because of legal requirements imposed by federal, state, or local law. And, most employers know to try to reasonably accommodate employees who are physically impaired. But, how do these rules apply in the current pandemic when available sick leave may be insufficient, and impairment from COVID-19 infections is not always obvious?
Here are some ideas and considerations.
The Current Status of Sick Leave Law
Exempt employees – generally, white-collar personnel and professionals who are paid on a salary basis — must be paid for any week in which they perform any work. If they can work (the business is open) and they take time off for sickness, their sick leave, if any, under an employee benefits plan, can be charged in most circumstances.
Nonexempt employees paid hourly generally are not paid if they don’t work. If the non-exempt employee does not have paid time off or sick leave available, there is no legal obligation to pay the employee who is not working because of the pandemic.
An employer can always do more than it is required to do by statute and regulation. It can commit itself by contract (individual contracts or collective bargaining agreements) or sometimes in personnel policies to pay sick leave not otherwise mandated. An employer also can voluntarily do something beyond statutory or contractual requirements, whether altruistically or to avoid the public relations nightmare of not stepping up in an emergency situation.
Is there a Requirement for Emergency Sick Leave During the COVID-19 Pandemic?
Some states, such as Colorado, already have enacted limited emergency sick leave requirements in view of the COVID-19 epidemic. Other states and localities will likely follow.
Most importantly, the United States House of Representatives overwhelmingly passed The Families First Coronavirus Response Act, or H.R. 6201, on Saturday, March 14, 2020. President Trump tweeted his support, and the bill is now in the Senate.
H.R. 6201 contains, among other things, provisions requiring that employers with less than 500 employees provide workers with two weeks of paid emergency sick leave beyond currently provided leave. Family and Medical Leave Act (FMLA) coverage are also expanded. The legislation would provide employers with a refundable tax credit to offset the cost of providing a worker with the paid medical leave, and there are caps in the bill for both the amount of wage relief and tax credits.
The precise parameters and requirements are still being discussed, and we’ll keep you updated as the Bill goes through the legislative process.
What About Controlling the Work Environment?
If an employee is sick at work, what do you do?
The employer can always send an employee home if the employee is obviously ill. But, if an employee does not appear sick, then what? And, what about workplace rules designed to preclude the spread of infections.
There are two primary sources for answering these types of questions: EEOC and DOL.
Several years ago, the EEOC issued a release during an influenza epidemic addressing many of the same issues we are now addressing. Here are some questions and answers relevant to our current situation:
* May an [Americans with Disabilities Act] ADA-covered employer send employees home if they display influenza-like symptoms during a pandemic?
Yes. The CDC states that employees who become ill with symptoms of influenza-like illness at work during a pandemic should leave the workplace. Advising such workers to go home is not a disability-related action if the illness is akin to seasonal influenza or the 2009 spring/summer H1N1 virus. Additionally, the action would be permitted under the ADA if the illness were serious enough to pose a direct threat.
* During a pandemic, how much information may an ADA-covered employer request from employees who report feeling ill at work or who call in sick?
ADA-covered employers may ask such employees if they are experiencing influenza-like symptoms, such as fever or chills and a cough or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
If pandemic influenza is like seasonal influenza or spring/summer 2009 H1N1, these inquiries are not disability-related. If pandemic influenza becomes severe, the inquiries, even if disability-related, are justified by a reasonable belief based on objective evidence that the severe form of pandemic influenza poses a direct threat.
* During a pandemic, may an ADA-covered employer take its employees’ temperatures to determine whether they have a fever?
Generally, measuring an employee’s body temperature is a medical examination. If pandemic influenza symptoms become more severe than the seasonal flu or the H1N1 virus in the spring/summer of 2009, or if pandemic influenza becomes widespread in the community as assessed by state or local health authorities or the CDC, then employers may measure employees’ body temperature. However, employers should be aware that some people with influenza, including the 2009 H1N1 virus, do not have a fever.
* When an employee returns from travel during a pandemic, must an employer wait until the employee develops influenza symptoms to ask questions about exposure to pandemic influenza during the trip?
No. These would not be disability-related inquiries. If the CDC or state or local public health officials recommend that people who visit specified locations remain at home for several days until it is clear they do not have pandemic influenza symptoms, an employer may ask whether employees are returning from these locations, even if the travel was personal.
* During a pandemic, may an ADA-covered employer ask employees who do not have influenza symptoms to disclose whether they have a medical condition that the CDC says could make them especially vulnerable to influenza complications?
No. If pandemic influenza is like seasonal influenza or the H1N1 virus in the spring/summer of 2009, making disability-related inquiries or requiring medical examinations of employees without symptoms is prohibited by the ADA. However, under these conditions, employers should allow employees who experience flu-like symptoms to stay at home, which will benefit all employees including those who may be at increased risk of developing complications.
If an employee voluntarily discloses (without a disability-related inquiry) that he/she has a specific medical condition or disability that puts him or her at increased risk of influenza complications, the employer must keep this information confidential. The employer may ask him/her to describe the type of assistance he/she thinks will be needed (e.g. telework or leave for a medical appointment). Employers should not assume that all disabilities increase the risk of influenza complications. Many disabilities do not increase this risk (e.g. vision or mobility disabilities).
If an influenza pandemic becomes more severe or serious according to the assessment of local, state or federal public health officials, ADA-covered employers may have sufficient objective information from public health advisories to reasonably conclude that employees will face a direct threat if they contract pandemic influenza. Only in this circumstance may ADA-covered employers make disability-related inquiries or require medical examinations of asymptomatic employees to identify those at higher risk of influenza complications.
* May an employer encourage employees to telework (i.e., work from an alternative location such as home) as an infection-control strategy during a pandemic?
Yes. Telework is an effective infection-control strategy that is also familiar to ADA-covered employers as a reasonable accommodation.
In addition, employees with disabilities that put them at high risk for complications of pandemic influenza may request telework as a reasonable accommodation to reduce their chances of infection during a pandemic.
* During a pandemic, may an employer require its employees to adopt infection-control practices, such as regular hand washing, at the workplace?
Yes. Requiring infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal, does not implicate the ADA.
* During a pandemic, may an employer require its employees to wear personal protective equipment (e.g., face masks, gloves, or gowns) designed to reduce the transmission of pandemic infection?
Yes. An employer may require employees to wear personal protective equipment during a pandemic. However, where an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves, or gowns designed for individuals who use wheelchairs), the employer should provide these, absent undue hardship.
More recently, the Department of Labor updated a release discussing Family Medical Leave Act (FMLA) and Americans with Disabilities Act (ADA) related issues, some specifically geared to COVID-19. Here are some of the more relevant questions and answers there:
* Must an employer grant leave to an employee who is sick or who is caring for a family member that is sick?
An employee who is sick or whose family members are sick may be entitled to leave under the FMLA under certain circumstances. The FMLA entitles eligible employees of covered employers to take up to 12 weeks of unpaid, job-protected leave in a designated 12-month leave year for specified family and medical reasons. This may include the flu where complications arise that create a “serious health condition” as defined by the FMLA. Employees on FMLA leave are entitled to the continuation of group health insurance coverage under the same conditions as coverage would have been provided if the employee had been continuously employed during the leave period.
Workers who are ill with pandemic influenza or have a family member with influenza are urged to stay home to minimize the spread of the pandemic. Employers are encouraged to support these and other community mitigation strategies and should consider flexible leave policies for their employees.
* May employers send employees home if they show symptoms of pandemic influenza? Can the employees be required to take sick leave? Do they have to be paid? May employers prevent employees from coming to work?
It is important to prepare a plan of action specific to your workplace, given that a pandemic influenza outbreak could affect many employees. This plan or policy could permit you to send employees home, but the plan and the employment decisions must comply with the laws prohibiting discrimination in the workplace on the basis of race, sex, age (40 and over), color, religion, national origin, disability, or veteran status. It would also be prudent to notify employees (and if applicable, their bargaining unit representatives) about decisions made under this plan or policy at the earliest feasible time.
Your company policies on sick leave, and any applicable employment contracts or collective bargaining agreements would determine whether you should provide paid leave to employees who are not at work. If the leave qualifies as FMLA-protected leave, the statute allows the employee to elect or the employer to require the substitution of paid sick and paid vacation/personal leave in some circumstances. (See the U.S. Department of Labor Wage and Hour Division for additional information or call 1-866-487-9243 if you have any questions.)
Remember when making these decisions to exclude employees from the workplace, you cannot discriminate on the basis of race, sex, age (40 and over), color, religion, national origin, disability, union membership or veteran status. However, you may exclude an employee with a disability from the workplace if you:
- obtain objective evidence that the employee poses a direct threat (i.e. significant risk of substantial harm); and
- determine that there is no available reasonable accommodation (that would not pose an undue hardship) to eliminate the direct threat.
(See the U.S. Equal Employment Opportunity Commission’s Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act for additional information.)
* May an employer require an employee who is out sick with pandemic influenza to provide a doctor’s note, submit to a medical exam, or remain symptom-free for a specified amount of time before returning to work?
Yes. However, employers should consider that during a pandemic, healthcare resources may be overwhelmed and it may be difficult for employees to get appointments with doctors or other health care providers to verify they are well or no longer contagious.
During a pandemic health crisis, under the Americans with Disabilities Act (ADA), an employer would be allowed to require a doctor’s note, a medical examination, or a time period during which the employee has been symptom-free, before allowing the employee to return to work. Specifically, an employer may require the above actions of an employee where it has a reasonable belief – based on objective evidence – that the employee’s present medical condition would
- impair his/her ability to perform essential job functions (i.e., fundamental job duties) with or without reasonable accommodation, or,
- pose a direct threat(i.e., significant risk of substantial harm that cannot be reduced or eliminated by reasonable accommodation) to safety in the workplace.
In situations in which an employee’s leave is covered by the FMLA, the employer may have a uniformly-applied policy or practice that requires all similarly-situated employees to obtain and present certification from the employee’s health care provider that the employee is able to resume work. Employers are required to notify employees in advance if the employer will require a fitness-for-duty certification to return to work. If state or local law or the terms of a collective bargaining agreement govern an employee’s return to work, those provisions shall be applied. Employers should be aware that fitness-for-duty certifications may be difficult to obtain during a pandemic.
* Some employees may not be able to come to work because they have to take care of sick family members. May an employer lay them off?
It depends. If an employee is covered and eligible under the FMLA and is needed to care for a spouse, daughter, son, or parent who has a serious health condition, then the employee is entitled to up to 12 weeks of job-protected, unpaid leave during any 12-month period. Some states may have similar family leave laws. In those situations, covered employers must comply with the federal or state provision that provides the greater benefit to their employees. (See the U.S. Department of Labor, Wage and Hour Division for additional information or call 1-866-487-9243 if you have questions.)
In lieu of laying off employees in this situation, we would encourage you to consider other options such as telecommuting and to prepare a plan of action specific to your workplace.
Remember, the facts of every situation will determine the legal requirements, and slight nuances can change the application of the legal requirements. If you need help, ask your lawyer before acting. During a pandemic, the maxim that an ounce of prevention is worth a pound of cure applies to both quarantines and social distancing, as well as legal issues.
If you have questions on this topic, please contact Ed Tolchin at firstname.lastname@example.org or .
For more legal information in regard to the Novel COVID-19 outbreak, please check out our COVID-19 resource page here »
ABOUT EDWARD TOLCHIN
Ed Tolchin is a Principal in the firm’s Government Contracting practice group. Mr. Tolchin’s practice is focused on government contracting, business litigation and transaction, and technology matters, including blockchain enterprise solutions.
In government contracting issues, Mr. Tolchin represents prime and subcontractors in contract negotiation and formation matters and in disputes involving both government and commercial business issues. He has been involved in procurement cases before many of the federal and state boards of contract appeal, Government Accountability Office, Small Business Administration, United States Court of Federal Claims, Court of Appeals for the Federal Circuit and other federal and state courts across the United States.
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