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COVID-19 (Coronavirus): FAQ’s for Employers

Mon Mar. 9th, 2020 PTWWW Legal Alert

Please note, the below provides some general answers to some general questions. A lot of matters will involve fact specific inquiries. Consultation of counsel is recommended prior to implementing any policy or practice that could adversely affect someone’s employment. Please contact us directly if you have any questions or concerns.

Can an employee use California Paid Sick Leave for a COVID-19 illness?

Yes. If the employee has paid sick leave available, the employer must provide such leave and compensate the employee under California paid sick leave laws. Paid sick leave can be used for absences due to illness, the diagnosis, care or treatment of an existing health condition or preventative care for the employee or the employee’s family member.
Preventative care may include self-quarantine as a result of potential exposure to
COVID-19 if quarantine is recommended by civil authorities. In addition, there may be other situations where an employee may exercise their right to take paid sick leave, or an employer may allow paid sick leave for preventative care. For example, where there has been exposure to COVID-19 or where the worker has traveled to a high risk area.

If an employee exhausts sick leave, can other paid leave be used?

Yes. If an employee does not qualify to use paid sick leave, or has exhausted sick leave, other leave may be available. If there is a vacation or paid time off policy, an employee may choose to take such leave and be compensated provided that the terms of the vacation or paid time off policy allows for leave in this circumstance.

Can an employer require a worker who is quarantined to exhaust paid sick leave?

No. The employer cannot require that the worker use paid sick leave; that is the worker’s choice. If the worker decides to use paid sick leave, the employer can require they take a minimum of two hours of paid sick leave per day. The determination of how much paid sick leave will be used per workday is up to the employee.

Can an employer require a worker to provide information about recent travel to countries considered to be high-risk for exposure to the COVID-19?

Yes. Employers can request that employees inform them if they are planning travel or have traveled to countries considered by the CDC to be high-risk areas for exposure to the Coronavirus. However, employees have a right to medical privacy, so the employer cannot inquire into areas of medical privacy.

What should an employer do if an employee does not show up to work because the employee is afraid of infection? 

This requires a fact specific inquiry. Per Section 13(a) of the Occupational Safety and Health Act (OSHA), employees are only entitled to refuse to work if they believe they are in immediate or imminent danger (i.e., an employee must believe that death or serious physical harm could occur within a short time, for example, before OSHA could investigate the problem).  As an example, if an employer were to require that an employee travel overseas to China or Italy or some other heavily infected area, that could rise to this threshold. However, most work conditions would not rise to the requisite threshold.
Note, under federal law, specifically Section 7 of the National Labor Relations Act, employees are allowed to “[talk] with one or more employees about working conditions,” “[participate] in a concerted refusal to work in unsafe conditions,” and “[join] with co-workers to talk to the media about problems in your workplace.” Employees are generally protected against discipline or discharge for engaging in such activity.

What should an employer do if an employee tests positive for COVID-19?

The employer should send home employees who worked with or around the infected employee and ask them to stay at home for 14 days. Upon the infected employee’s departure from the job site, ask the employee to provide names of individuals with whom the employee worked or around (3-6 feet) so that the employer can speak to those employees regarding a quarantine. Be mindful of confidentiality laws so that names of employees sent home or infected are not disseminated. Depending on the type of work space, it may be prudent to have a professional company perform a thorough deep clean of the workplace. If the employer is aware that the employee interacted with third parties like customers and vendors, the employer should communicate with the third parties that came into close contact with the employee to let them know (without providing confidential information like the employee’s identity).

What should an employer do if an employee states that the employee came in contact with someone who had a presumptive positive case of COVID-19?

See above response. Assume the suspected case is a confirmed case for purposes of sending home potentially infected employees. Communicate with affected workers to let them know that the employee is asymptomatic for the virus but that you are acting out of an abundance of caution.

Is an employee entitled to compensation for reporting to work and being sent home?

Yes. Generally, if an employee reports to their regularly scheduled shift but is required to work fewer hours or is sent home, the employee must be compensated for at least two hours or no more than four hours of reporting time pay.

Can an employer ask an employee to stay home or leave work if they exhibit symptoms of COVID-19 or the flu?

Yes. You are permitted to ask an employee to seek medical attention and get tested for COVID-19 and, under most circumstances, you can ask them to leave work.

Can an employer take an employee’s temperature at work to see if the employee has a fever?

It depends. 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. 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.

Can an employer provide employees information about COVID-19?

Yes. Information is available at no cost on the Center for Disease Control’s website.

Can an employer restrict employees from traveling to China?

Yes, for business purposes. Employers may also consider requesting that employees inform them if they are traveling for personal reasons so that the employer is aware of employees who are going to those areas and may be exposed to the disease. Employees who travel to China need to be informed that they may be quarantined upon their return.

Does Family and Medical Leave Act (FMLA) leave apply for employees or immediate family members who may contract COVID-19?

Yes. Assuming that the FMLA applies to the employer, Coronavirus would qualify as a “serious health condition” under FMLA, allowing an employee to take FMLA leave if either the employee or an immediate family member contracts the disease. The employee would be entitled to job reinstatement as well. California law may provide additional leave benefits.

Would an employer need to pay workers’ compensation for employees who contract COVID-19?

Possibly, if the employees contracted the disease in the course of their employment.This would apply more to health care workers. If an employee incidentally contracts the disease from a co-worker, there likely will be no workers’ compensation liability.

Does an employer need to pay employees who go on leave during a quarantine period or because they have contracted COVID-19?

Possibly. Employers may have to pay the employee if the employee is subject to a contract or collective bargaining agreement that requires pay when employees go on work-required leave.
In the absence of a contract, hourly employees work at-will and are not guaranteed wages or hours. In other words, these employees do not need to be paid. Exempt employees do not have to be paid if they are on leave for an entire workweek. However, if exempt workers work for part of the workweek, they would have to be paid for the entire week.