FAQs — Return-To-Work Considerations

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Return to Work

After stay-at-home orders are lifted, may we ask an employee to stay home or leave work if he or she exhibits symptoms of COVID-19 or the flu?

Yes. Lifted stay-at-home orders do not mark the end of the pandemic. The CDC states that employees who exhibit symptoms of influenzalike illness during a pandemic should leave the workplace. And employers should continue to monitor their workforces for symptoms and not allow symptomatic individuals to physically return to work until cleared by a medical provider.

May an employee refuse to return to work if a stay-at-home order is lifted?

Employees may refuse to return to work only if they believe they are in imminent danger. OSHA defines “imminent danger” to include “any conditions or practices in any place of employment which are such that a danger exists which can reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.” The threat must be immediate or imminent and the employee must believe that death or serious physical harm could occur within a short time.

For example, requiring employees to work with patients in a medical setting without PPE might meet this threshold. But if an employer has: followed CDC, OSHA and state return-to-work guidelines; performed a risk assessment; and developed a return-to-work plan focused on protecting employees and members of the public, most workplaces would not meet the factors required for an employee to refuse to work. Section 7 of the National Labor Relations Act (NLRA) extends broad statutory protections to employees to engage in “protected concerted activity for mutual aid or protection.” Such activity includes circumstances in which two or more employees act together to improve their employment terms and conditions, although it has been extended to individual action expressly undertaken on behalf of co-workers. Such action might include talking with one or more employees about working conditions, participating in a concerted refusal to work in unsafe working conditions and joining with co-workers to talk to the media about problems in the workplace. Employees generally are protected against discipline or discharge for engaging in such activity. Be mindful that if you terminate an employee who refuses to work, even if there is no imminent danger, the worker still might file an OSHA whistleblower claim. If you can establish that there was no imminent hazard to your employees and that your company complied with OSHA and CDC guidelines, the complaint might be dismissed. It's important, however, to treat employees fairly following any type of complaint even if it appears baseless. If you have any questions about how to handle employees who complain about unsafe work conditions or who refuse to return to work, contact us for advice.

May an employee refuse to return to work if he or she is older than 65 and feels unsafe?

Only if he or she reasonably believes there's an imminent danger per the OSHA standard. The CDC has identified older people as having higher risk of serious illness, and an employer may consider offering alternatives to requiring any higher-risk employees to return to work. It might consider teleworking, offering enhanced PPE (gloves, gowns, etc.) or changes in schedule. Employers should document all alternatives discussed and the employee's response.

Can an employer require older employees and those with prior medical conditions that might make them more susceptible to severe illness from returning to work in order to protect them?

No, excluding employees from the workplace based on a protected class is risky and may constitute discrimination. Older employees and employees with conditions that make them a greater risk can utilize the benefits of FFCRA expanded sick leave if their doctor advise them to stay at home. If an employees physician recommends leave as an accommodation the employer should consider the request and grant it if it doesn’t create an undue hardship. Employers should not unilaterally decide to prevent an employee from returning to work in an effort to protect the employee from potential illness.

After stay-at-home orders are lifted, may employers require workers to notify the company if they have been exposed to, have symptoms of and/or have tested positive for COVID-19?

Yes. Just because the orders have been lifted doesn’t mean that the pandemic has passed. Employers should have policies and plans notifying employees of their obligation to inform the company if they have symptoms of coronavirus, have been exposed to it or have tested positive. In addition, companies should have written policies about actions they will take in response to such disclosures.

Can an employer prevent its managers from disclosing to employees there is a suspected COVID-19 case in the workplace?

If Yes. If the business wants to centralize COVID-19 related communication to one or two people in the organization it can instruct its managers not to discuss actual or suspected cases of coronavirus. The employer should designate a person(s) within the organization who have the responsibility to investigate and communicate COVID-19 related exposures to employees.

If employees are concerned about returning to the work place and prefer to telework, can employers require employees to come to the office instead of allowing telework?

  Yes.  There is no requirement that employers offer telework once stay at home orders have been lifted and the business reopens.  Of course, until stay at home orders are lifted employers are encouraged to allow employees to work telework when possible.

Can employers request formally full time employees to return to work on a part time basis?

  Yes.  This is easy for nonexempt employees since they are paid based on hours worked.  If non-exempt employees decline part time work they maybe ineligible for unemployment benefits depending on the number of part time hours proposed by the employer.  For exempt employees this could be problematic since they must receive a fixed salary no matter how many hours they work.  Employers who are considering changes to exempt employees salary or hours are encouraged to contact us to insure the changes are lawfully made. 

Can an employer require an employee to return to work with a different schedule? If so, can the employee claim he is unable to work and receive expanded sick leave under the FFCRA?

The employer can require employees return to work under a different schedule. If such a return to work offer is made the employee is not considered unable to work for purposes of expanded sick leave unless the employee qualifies for the leave for a different reason.

Should employers monitor workers who aren’t social distancing when they are off duty to insure they are social distancing and to prevent an argument any subsequent COVID-19 infection is not work related?

Probably not as it could violate privacy rights. Employers have the ability to survey employees, on a daily basis, about whether they’ve been in contact with a confirmed or presumptive case of coronavirus and if they are complying with any state or local stay at home orders. In addition, employers can send employees home if they have symptoms or if they learn they have been exposed to coronavirus whether that exposure was after hours. In order to avoid allegations of privacy violations a better approach is to survey employees on a daily basis and consistently monitor the workplace for symptoms of the virus and immediately send people home if they exhibit symptoms or admit they’ve been around someone who may have the illness.

Can employers use COVID-19 waivers to limit liability with respect to employees, visitors or others entering the workplace?

Waivers are limited in their effectiveness and employers should consider the pros and cons before attempting to implement them. Employee waivers are likely unenforceable. Customer or visitor waivers cannot prevent government enforcement actions or claims including gross negligence and may scare or anger customers and visitors.

Questionnaires or notices may be more beneficial as it allows employers to communicate its actions to comply with government guidelines for sanitation, social distancing, mask wearing, and other efforts that you use to keep your guests and employees safe. Additionally, a questionnaire asks entrants to the premises questions about whether they have COVID-19 symptoms or exposure.

Taking Employee Temperatures and Other Medical Tests

After employees return to work, may employers take their temperatures?

Yes. Until further notice, companies may continue to operate under the EEOC’s guidance, which confirms that measuring employees’ body temperatures is permissible. California employers must comply with the California Consumer Privacy Act (CCPA) and provide employees a CCPA compliant notice prior to or simultaneously with collection of this information. California guidance for the reopening of specific industries also permits employers to check for symptoms in addition to temperature.

If employers are not required to do so, should they take employee temperatures?

Maybe. The CDC recommends screening employees for fevers of more than 100.4 degrees, and California’s industry-specific guidelines recommend that temperatures be taken at the beginning of a shift or, if appropriate, allowing employees to take their own temperatures before beginning their shifts.

If employers decide to screen workers, they should also check the temperatures of guests, clients, vendors and contractors. Still, some individuals infected with COVID-19 will exhibit no symptoms, so temperature-screening probably will not prevent entry to the work site by everyone who might transmit the disease. Symptom-screening in combination with taking temperatures might provide a more complete sense of whether someone is infected.

Should employers collect medical information from employees when taking their temperatures?

It's not recommended unless required by local or state law. If an employer collects or distributes any medical information about an employee while conducting a pre-shift screening, the likelihood of a privacy-related claim is greater as it relates to data storage. Instead, using a real-time thermometer, employers should immediately inform workers privately if it measures greater than 100.4 degrees. If an employee exhibits symptoms or a fever, it's necessary to collect additional information for the purposes of contact-tracing. That includes the names of all employees or others on the work site with whom the worker has had close contact in order to notify them of possible exposure.

What precautions should be taken by individuals who conduct the temperature-screening of employees, customers, vendors or contractors?

Assume the tester potentially will be exposed to someone who is infected and who might cough or sneeze during their interaction. Determine how to eliminate or minimize the hazard, which might be to require the tester to use PPE.

What other best practices should employers follow during temperature-screening?

Maintain proper social distancing as employees and others wait to be tested. Businesses might mark the 6-feet interval for people standing in line. Some might create waiting areas where employees can maintain the proper distance prior to entering the facility.

Ensure that there is privacy during screening, especially when results are announced.

In California, employers are required to pay nonexempt employees for the time required to take their temperatures or assess symptoms. Employers should implement a clock-in system for employees awaiting screening.

May an employer require antibody testing before allowing employees to return to return to work or re-enter the workplace after a period of quarantine?

No, according to interim CDC guidance antibody results should not be used to determine whether and when an employee should return to work. https://www.cdc.gov/coronavirus/2019-ncov/lab/resources/antibody-tests-guidelines.html An antibody test doesn't meet the ADA's "job related consistent with business necessity" standard for medical examination or medical inquiries of current employees. As a result requiring an antibodies test before an employee cam return to work is not allowed under the ADA. An antibody test is different from a COVID-19 test determining whether a person is positive or negative for the illness and these tests are still permissible under the ADA. https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws

Masks in the Workplace

May employers refuse an employee’s request to wear a medical mask or respirator?

Possibly, but under most circumstances, it's not recommended. Employers should allow their workers to wear reasonable PPE if it makes them feel safe. In most cases, employees returning to the work site should be asked to wear face masks and to socially distance. The CDC has issued guidance recommending the wearing of cloth face coverings in public settings especially where other social distancing measures are difficult to maintain. Employers should not refuse an employee’s request to wear a mask.

If employees wear masks do employers still need to ensure social distancing measures are practiced in the workplace?

Yes. Masks are not a substitute for social distancing measures.

What should an employer do if an employee claims that he or she has a medical condition that prevents him or her from wearing a mask or face covering?

The employer should engage the worker in the ADA-required interactive process. That includes requesting medical certification from the employee’s treating physician sufficient to determine whether he or she has a disability that requires accommodation. If so, the employer may ask questions to determine whether there are options to wearing a face covering. Accommodations could include schedule changes, teleworking or leave.

A customer or guest claims to be exempt from face mask requirements due to an underlying medical condition, and refuses to provide further information. What should the business do?

Notice should be posted at the entrance of the facility and on the company's website that patrons are required to wear a face mask to enter the place of business, and that it reserves the right to refuse service to anyone not complying. Asking for medical documentation to prove the condition is not recommended. Don't engage in a discussion about whether he or she is exempt from the rule. Consider offering an accommodation to allow entry or other access to the business, such as curbside service. Maybe the business can permit entry another time if the customer wears a full clear face shield.

Should the employer pay for face coverings for employees to wear?

If a business requires employees to wear face coverings, it should pay for them as PPE.

Handling Unemployment Issues When Employees Return to Work

When must an employer notify the federal and state employment agencies when employees are rehired?

Federal law requires employers to report newly hired or rehired employees to the National Directory of New Hires, which includes rehired employees who have been separated from employment for at least 60 days. https://fas.org/sgp/crs/misc/RS22889.pdf. California requires employers report hires and rehires. https://edd.ca.gov/Payroll_Taxes/New_Hire_Reporting.htm#:~:text=All%20California%20employers%20must%20report,be%20reported%20within%2020%20days. Both California and the federal government require reporting within 20 days of hire or rehire.

If an employer we brings an employee back to work from a furlough or temporary layoff who is receiving unemployment and the employee refuses to return to work, what can the employer do?

Where an employer has suitable available work for an employee, unemployment benefits may be denied if the employee refuses to work without good cause. Suitable employment means work in the employee’s usual occupation or for which the employee is reasonably fitted. https://www.edd.ca.gov/uibdg/Suitable_Work_SW_5.htm.

Good cause for a refusal to return to work include child care responsibilities because the employee's child's school or child care facility is closed due to the pandemic or the employee has other COVID-19 related issues. Here, employers are reminded to offer eligible employees expanded sick leave and expanded family leave under the FFCRA and allow them to exhaust these benefits before requiring a return to work.

If an employers recalls employees from layoff or furlough on a reduced hours basis, can that employee still receive unemployment benefits?

Possibly. In general, if the employee is working less than full time hours and the employee’s weekly wages are less than their weekly benefit amount as determined by the state, the employee may be entitled to partial unemployment benefits. In general, a portion of an employee’s weekly gross earnings are excluded from the partial weekly benefit calculation. https://www.edd.ca.gov/unemployment/partial_claims.htm

Employment Handbooks, Policies and Best Practices

What policies might be affected or need to be revised due to the COVID-19 pandemic?

Employers might need to implement new measures to ensure the health and safety of employees. They might need to revise policies and practices to accommodate a new normal. Businesses should undertake a thorough analysis of existing policies in light of recent legislation. Some policies requiring revision might relate to:

• vacation/paid time off
• attendance
• work hours, including start/stop time, breaks, lunch times, flexible/staggered work hours
• time-keeping measures, including clock-in/clock-out procedures
• leave policies, including sick leave
• remote work
• travel policies(business and personal)
• information technology and usage

When employees return to work, may or should employers issue new policies and handbooks?

Employers who are not otherwise limited by a collective bargaining agreement may issue new policies or handbooks when returning employees to work. Indeed, it's a good opportunity to update everything in light of new legislation and best practices to minimize coronavirus transmission.

If employees have been on furlough, may they be called back to work, or must everyone be treated as a new hire?

In general, employees returning from furlough or temporary layoff needn't be rehired in the traditional sense. If employees stayed on the payroll, the business simply returns them to their prior positions. The business should document the return-to-work date via the usual personnel action form. If wages and benefits for returning employees have changed, they must be communicated in writing to the workers before they become effective.

What signage must businesses post in the workplace?

Employers are obligated to post numerous employment law-related posters in locations throughout their work sites. Every employer covered by the Families First Coronavirus Response Act (FFCRA) must post in a conspicuous place on its premises a notice of the statute requirements for expanded sick leave and expanded family leave. The requirement may be satisfied by emailing or mailing the notice to employees or posting it on the internal or external website.

Remote Work Considerations

What is involved if an an employer wants to continue the teleworking plan it devised during the stay-at-home order?

First, the business must assess its technological capabilities. Did it implement security and privacy protocols, or do they need to be added?

Second, the business must determine whether remote workers have the equipment required to do their jobs. Can the company ensure they will continue to have access to the proper equipment? Can it provide remote help-desk assistance on a long-term basis?

Third, how can the business effectively communicate with remote workers? Can they communicate with each other? How will time records be kept, and attendance tracked? How will overtime be monitored?

These considerations are especially important for nonexempt employees who must keep track of their time and attendance for wage-and-hour purposes.

How will productivity be measured?

Does the business need to reimburse employees for expenses? Does it require employees to use their own equipment? If so, it must reimburse them for expenses. For example, will the company pay a portion of an employee’s phone bill or internet charges?

Does the company have safety standards or practices for employees working remotely? Workers' compensation might be available for any injuries an employee suffers while working remotely. These issues are covered extensively in "Sullivan on Comp" Chapter 5, and addressed in this book's workers' compensation section, Injuries While Working at Home.

Businesses must draft a robust remote work policy or review its existing policy to determine if it needs updating. A remote work policy must accommodate the organization’s expectations of the workforce, and that might require separate policies for exempt and nonexempt employees.

When stay-at-home orders were enacted, businesses allowed remote work without a policy or procedure. Now that things have calmed down, should more formal remote work practices be implemented?

Yes. Each business keen to continue the remote work practice must develop a teleworking plan that addresses its needs after the crisis passes.

Return to Work and Leave Related to the Families First Coronavirus Relief Act and Family and Medical Leave Act

Does the Families First Coronavirus Relief Act still apply to rehired employees?

Yes. If a business recalls an employee any time before Dec. 31, 2020, and the worker claims to be unable to return because of one of the qualifying reasons for emergency paid sick leave benefits or emergency family and medical leave, under the FFCRA, he or she is entitled to the monetary benefits. If an employee returns to work, then requires emergency paid sick leave or expanded family rights leave, he or she is eligible for these benefits until Dec. 31, 2020.

If an employer rehires an employee, must he or she work for 30 days before becoming eligible for expanded family/medical leave?

Not necessarily. The FFCRA was amended to provide that if an employee was laid off or otherwise terminated on or after March 1, 2020, and rehired or otherwise re-employed on or before Dec. 31, 2020, the worker is entitled to expanded family/medical leave if he or she had been on the employer’s payroll for 30 or more of the 60 calendar days prior to the layoff or termination.

If rehiring employees brings an employer's workforce to 500 or more, may employees still request sick leave or expanded family/medical leave?

No. The 500 or more employee count is calculated at the time sick leave or expanded family/medical leave is requested. But if the workplace is in a county or city that has expanded these benefits to larger employers, employees would be eligible at that time.

If an employer hires a new employee as part of its return-to-work operations, and the worker used sick leave at the previous employer, is he or she entitled to another 80 hours of sick leave with the new company?

No. U.S. Department of Labor regulations specify that any person is limited to a total of 80 hours of sick leave. An employee who has taken some, but not all of those hours of sick leave, then changes employers, is entitled to the remaining hours from the new employer –– if the new employer is covered by the FFCRA.

If an operation was closed, and its employee requested pay for emergency sick leave, under the FFCRA may the business choose not to bring that worker back?

Although the employee was not qualified for FFCRA leave while the operation was closed, choosing not to bring an employee back based on his or her request for such leave could be viewed as discriminatory and retaliatory. The decision about who is invited to return to work should not be based on an employee’s request or potential need for FFCRA leave.

SEE ALSO

• "Sullivan on Comp" Chapter 11: Return to Work

REFERENCES

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