COVID-19: Employer FAQs

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COVID-19 Resource Hub

To assist employers navigating these difficult and unprecedented times, below are some frequently asked questions and answers. These FAQs provide general guidance only and are not intended to serve as legal advice. Our answers also may differ depending on your specific employment policies, the nature of your workplace, and the status of ever-evolving state and federal guidance. For up-to-date legal advice related to COVID-19 in the workplace, please contact one of our Labor & Employment attorneys.

 

Q: Do we have to continue to pay employees if we temporarily close?

A:

 

It depends. Employers have to pay hourly nonexempt employees only for the hours they work. Exempt employees have to be paid for any workweek in which they perform work (even if it is minimal). If an employer wants to avoid payment obligations, the employer should instruct employees not to perform any work during the closure.

It is up to the employer and the employer’s policy whether to allow employees to use accrued vacation or paid time off during the closure. Employees in states with paid sick leave laws (including Washington, Oregon, and California) should consult their attorney regarding employees’ ability to use accrued paid sick leave during a COVID-19-related business closure (employees will likely be able to use it).

Employees who are off work due to a temporary shut-down may be able to collect unemployment insurance, depending on state law (and are able to do so in Washington, Oregon, and California). Employers also need to consider how the temporary shut-down or closure will affect health insurance benefits and whether it will be a qualifying event under the Consolidated Omnibus Budget Reconciliation Act (COBRA).

 

Q: What if the government forces us to close?

A:

 

For an employer that does not plan to lay employees off, in the case of a government-forced closure, you should tell employees that the government has ordered the company to close due to COVID-19-related concerns. You may inform employees that they will receive their paychecks on the next regularly scheduled payday (with nonexempt employees being paid only for the hours they have worked and exempt employees being paid for the last workweek in which they have worked). You can tell employees that if they have paid time off they may use it going forward, otherwise they will cease to be paid. Employees may also be informed of their likely ability to collect unemployment insurance based on a loss of hours. However, unemployment benefits decisions are ultimately made by state employment departments, so do not promise employees they will receive unemployment benefits.

Any employees who are laid off should receive the same notice that the government has ordered the company to close due to COVID-19-related concerns. Subject to limited exceptions that you should discuss with your attorney, employees should receive their final paychecks no later than the next business day after the layoff. If your company has a policy or practice of paying terminated employees for their accrued vacation, sick, or other paid time off upon termination, those amounts should be included in the final paycheck. (If you do not pay out accrued balances, be aware that some state sick leave laws will require you to reinstate those amounts if an employee is rehired within a certain period of time.) You should also notify employees who are laid off about unemployment benefits.

Employers also need to consider how the temporary shutdown or layoff affects employee health insurance benefits.

 

Q: Can we require an employee traveling back from a high-risk area or who has been exposed to a person with COVID-19 to stay home?

A:

 

Yes, employers can tell employees returning from an affected area or who have been exposed to a person with the disease to stay home (or send them home). In doing so, be sure there is a factual basis for the decision to exclude employees from the workplace and that you are not discriminating against them because of their national origin or race.

If you decide to send someone home, you generally do not have to pay him or her, subject to the limitations discussed above (for example, the requirement that exempt employees receive a full day’s pay even if they work only a portion of the day) and below (if the employee otherwise qualifies for paid time off under state or federal law or employer policy). Employers may, however, choose to do so.

 

Q: Can we send employees home if they appear sick or are showing signs of the illness? Can we require a release before they return to work?

A:

 

Yes, you can send employees home who appear to be sick or show signs of illness and inform them that they cannot return to work until they have been symptom-free for a certain period of time or are cleared by their medical provider.

You can also require a doctor’s release before an employee returns to work. Given the current burden on the healthcare system, however, there may be practical issues with requiring a doctor’s note, and you may need to be flexible about that requirement. Telling the employee to stay home for 14 days is one alternative.

 

Q: I have an employee asking for the next two weeks off work because their child’s school is closed. Do I have to provide them with time off even if they are not the primary caregiver and no one is sick?

A:

 

Yes. The time off will be covered under the federal Families First Coronavirus Response Act (“FFCRA”), which took effect on April 1, 2020. A summary of the FFCRA is available here and there are additional related FAQs below.

Additionally, state law applies. Most state sick leave laws provide that employees have the right to use accrued sick time for a closure of their children’s schools or places of care by order of a public official due to a public health emergency. Moreover, Oregon’s Bureau of Labor and Industries has expanded eligibility under the Oregon Family Leave Act (“OFLA”) for parents who are unable to work because their child’s school or daycare is closed due to COVID-19. Those parents are now eligible for a protected, unpaid leave of absence under OFLA.

As a practical matter, for employers covered by both OFLA and the new FFCRA that provides for paid family leave, the unpaid OFLA leave and the paid Family and Medical Leave Act (“FMLA”) leave would run concurrently in most circumstances.

 

Q: One of our employees just tested positive for COVID-19. Do we have an obligation to inform other employees? What should we tell them?

A:

 

Yes, typically. Employers have a duty to provide employees with a safe and healthy workplace that is free from recognized serious hazards, a duty that needs to be balanced with the privacy rights of the employee who has been diagnosed. In this situation, an employer should inform employees who may have been exposed that someone they work with has tested positive, without exposing the identity of the particular employee (e.g., an employee on floor X has tested positive, or an employee who works Y shift has tested positive). Employees should also be notified of the steps you are taking to keep the workplace safe (such as cleaning, allowing remote work, and facilitating social distancing). Employers may also ask the affected employee to name the individuals with whom he or she has worked closely in the past few weeks, and have a more targeted conversation with those individuals.

 

Q: Can we take an employee’s temperature if we think the employee has a fever?

A:

 

During the current COVID-19 crisis, yes, pursuant to recent EEOC guidance. Keep in mind, however, that not all individuals infected with COVID-19 have a fever, or even show any symptoms at all. Testing should be done on a non-discriminatory basis by a designated individual or group of individuals, keeping in mind employee privacy concerns. (In other words, line supervisors should not be doing the temperature checks.) If an employee is showing symptoms, you may of course send the employee home.

 

Q: We have several employees who are older or who are not in the best health who might be considered “high risk.” Can we send those employees home until the COVID-19 situation improves?

A:

 

Tread carefully. While we all want to keep our employees safe, the prohibitions against age discrimination and disability discrimination still apply. While it’s fine to suggest that employees whom the Centers for Disease Control and Prevention has identified as “high-risk” take leave or work from home, you cannot require them to do so if that would mean treating them differently from other employees outside of their protected class. “High-risk” employees may also be eligible for emergency paid sick leave under the FFCRA if their health care provider advises them to self-quarantine due to concerns related to COVID-19.

 

Q: Can employees refuse to come to work because they are scared of getting sick?

A:

 

Assuming the employee doesn’t qualify for sick leave, FMLA, or some other sort of protected leave, an employee is only generally entitled to refuse to come to work if the employee reasonably believes he or she is in imminent danger, as defined by the Occupational Safety and Health Administration (“OSHA”), and has asked you to eliminate the danger and you have refused to do so. The threat must be imminent, meaning that an employee believes that death or serious harm could immediately occur before OSHA would have time to investigate the problem. Absent unusual circumstances, most workplaces will not meet this threshold. This means that employees who refuse to come to work but who are not eligible for any type of protected leave under law or your policy may be subject to discipline, including termination.

Tread carefully, however, particularly with respect to employees who might be considered “high risk” due to pregnancy or a chronic health condition (such as diabetes or cardiovascular or respiratory issues), particularly if the employee provides a doctor’s note recommending that the employee stay home during this time. Allowing the employee to work remotely or to take unpaid leave may be required as a reasonable accommodation under the Americans with Disabilities Act (“ADA”), the Pregnancy Discrimination Act, or applicable state law. Employers also need to assess whether such employees are eligible for emergency paid sick leave under the FFCRA.

 

Q: We are not currently allowing employees to work from home. However, we have an employee who has asked to telecommute indefinitely because she has decided that she is high risk. What should we do?

A:

 

Treat this like you would any other ADA accommodation request. Engage in the interactive process with her, which may include having her provide documentation from her medical provider supporting her determination that she is high risk. If allowing her to work from home is not feasible, explore other accommodations that might enable her to safely remain in the workplace, or provide her with leave. If you decide to permit her to work from home, make clear that it is a temporary arrangement.

 

Q: COVID-19 is already causing a slowdown in business, and we are planning to run a skeleton crew over the next few weeks. Can employees collect unemployment if their hours get reduced?

A:

 

Probably, but it depends on the state. In most states, employees can collect unemployment if they lose hours due to a business slowdown or temporary closure. Additionally, in response to COVID-19, many states are adopting emergency rules to expand access to unemployment insurance (see Oregon example here). We expect that trend to continue.

Q: Can I still terminate or lay off an employee eligible for leave under the FFCRA?

A:

 

Yes, but be careful not to discriminate in who is selected for termination or layoff. Employees should not be terminated or laid off because they are on protected leave or will need to take protected leave in the future; rather, any consideration of layoff eligibility should be based on business needs.

 

Q: Is the emergency paid sick leave under the FFCRA in addition to any paid sick time I already offer, and/or state-mandated paid sick time?

A:

 

Yes. The FFCRA provides a new, standalone paid sick leave entitlement to covered employees. Additionally, employers may not require employees to use other employer-provided time off before they take sick time under the FFCRA.

Make sure to review our previous coverage of the FFCRA, including our FFCRA Flowchart, available here.

 

Q: If I employ 500 or more employees, do I need to worry about the FFCRA?

A:

 

Not if you are a private sector employer or nonprofit. Private employers and nonprofits with 500 or more employees are exempt from the FFCRA. The vast majority of public employers are covered under the FFCRA, regardless of employee count, including public agencies and state governments.

 

Q: How is employee count determined?

A:

 

See our blog post covering the U.S. Department of Labor guidance on this issue. Employers should consult with their counsel because determining employee count is a highly fact-specific inquiry that may involve additional strategic considerations.

 

Q: If I laid someone off before the FFCRA went into effect, can they come back now and claim they were entitled to paid time off under the FFCRA?

A:

 

No, the FFCRA is not retroactive. Employees are only entitled to benefits going forward from the date the FFCRA takes effect.

 

Q: Are employees who are on temporary layoff as of the effective date of the FFCRA entitled to benefits under the FFCRA?

A:

 

No. Employees on temporary layoff are not absent for a qualifying reason – they are absent because their employer has no work for them.

 

Q: If, before the effective date of the FFCRA, an employer voluntarily paid employees who weren’t working for reasons covered by the FFCRA (e.g., closed schools), can the employer get credited for those benefits when calculating an employee’s leave entitlement under the FFCRA now that it has gone into effect?

A:

 

No. Employees are entitled to a certain amount of leave as of the date the FFCRA became effective (April 1, 2020), and employers cannot reduce that entitlement because they already provided similar (or even identical) benefits before the effective date.

 

Q: The FFCRA medical leave provisions apply to all employers with fewer than 500 employees, even those with 1-49 employees who are not otherwise subject to FMLA. Are those employers now required to provide all forms of FMLA leave, or just COVID-19-related FMLA leave under the FFCRA?

A:

 

Just COVID-19-related FMLA leave under the FFCRA.

 

Q: What if an employee already used his or her 12-week FMLA entitlement for the leave year before the FFCRA went into effect?

A:

 

The employee would not be entitled to additional FMLA leave under the FFCRA.

 

Q: If my business is shut down due to a state or local government “stay home” or “shelter in place” order, is that a qualifying reason for employees to take emergency paid sick leave under the FFCRA?

A:

 

No. The FFCRA provides that emergency paid sick leave is available if “[t]he employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.” You should review the specifics of any government order in the location where you operate, but generally, an order stating that a business must close is different than an order stating that employees must quarantine or isolate, and an employee who cannot work although work remains available is different than an employee who cannot work because his or her workplace is closed.

 

Q: Is the 80 hours of emergency paid sick leave part of the 12 weeks of emergency medical leave?

A:

 

Potentially, yes. The first 10 days of emergency family medical leave are unpaid under the FFCRA; however, employees can – but are not required to – elect to use emergency paid sick leave (or any other employer-provided time off) to cover that time. Both the emergency paid sick leave and emergency paid family medical leave provisions of the FFCRA provide that an employee may take leave if the employee is unable to work or telework because the employee’s child’s school or place of care has closed or become unavailable due to COVID-19.

So, an eligible employee could use emergency paid sick leave for the first 10 days (up to 80 hours) of school/daycare-closure-related absences and emergency paid family medical leave for the remaining 10 weeks. If an employee elects not to use emergency paid sick leave, the employee will still have that benefit available, even after exhausting his or her emergency medical leave entitlement.

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