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” as including “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 a 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.

May an employer prevent 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 doctors advise them to stay at home. If an employee's 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 decide unilaterally to prevent an employee from returning to work in an effort to protect him or her 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.

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

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

If employees are concerned about returning to the workplace and prefer to telework, may employers require them to work from the office?

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

May employers formally request that full-time employees return to work on a part-time basis?

Yes. This is easy for nonexempt employees, as they are paid based on hours worked. If nonexempt employees decline part-time work, they might be ineligible for unemployment benefits, depending on how many part-time hours the employer proposes. Such a request could be a problem when it comes to exempt employees, however, as they must receive a fixed salary no matter how many hours they work. Employers who are considering changes to exempt employees' salaries or hours should contact us to ensure the changes are made lawfully.

May an employer require an employee to return to work with a different schedule? If so, may the employee claim to be unable to work, and receive expanded sick leave under the FFCRA?

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

To address a claim that someone contracted COVID-19 during work or work-related activities, should employers monitor workers when they are off duty to ensure that they are social distancing?

Probably not, as it could violate privacy rights. Employers may survey employees daily 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 may send employees home if they have symptoms or if they learn that they have been exposed to coronavirus, whether or not the exposure was after hours. To avoid allegations of privacy violation, daily surveys and consistently monitoring the workplace for people with symptoms of the virus are better practices. Anyone exhibiting symptoms or acknowledging that they’ve been around someone who may have the illness should be sent home.

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

Waivers are limited in their effectiveness, so employers should consider the pros and cons before attempting to implement them. Employee waivers probably are 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 they allow employers to communicate their actions to comply with government guidelines for sanitation, social distancing, mask wearing and other efforts to keep people safe. In addition, a questionnaire solicits information from people entering the premises 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 work or to 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. 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. So requiring an antibody test before an employee may return to work is not allowed under the ADA.

An antibody test is different from a COVID-19 test that determines whether a person is positive or negative for the illness, and is permissible under the ADA.

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.

And, as of June 18, 2020, Gov. Newsom ordered everyone in California to wear face coverings when they are in public or high-risk settings. The guidelines, per the state Department of Public Health, were updated in response to an increase in coronavirus cases and widespread failure of people voluntarily to wear masks. The mandate is temporary; it's unclear how long it will last. Some people are exempt –– children younger than 2, people with medical or other disabilities, restaurant patrons while they are eating or drinking and people recreating outdoors and socially distanced, among others. Most employees who don't telework must wear face coverings.

In most cases, employees returning to the work site must wear face masks and maintain social distance where possible. The CDC has issued guidelines 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, must employers still ensure that 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.

Is a face shield an appropriate substitute for a face covering in the workplace?

OSHA and the CDC recommend the use of cloth face coverings to prevent the spread of coronavirus. Both OSHA and the CDC recommend the use of face shields if cloth face masks are not available or aren't appropriate or practical. Examples of situations in which face shields might be appropriate include where flammability or heat is a concern. When face shields are used, they should wrap around the sides of the face and extend below the chin. The CDC recommends disposing of, cleaning or decontaminating the shield after each use.

Employers have the discretion to require employees to wear face masks; they are deemed to be a good safety measure when social distancing isn't possible or practical. Link here for more information on face coverings from [OSHA] and the [CDC].

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. California requires employers to report hires and rehires. Both California and the federal government require reporting within 20 days of hire or rehire.

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

If 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.

Good cause for refusing to return to work includes 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 issues related to COVID-19. In such situations, employers might offer eligible employees expanded sick leave and expanded family leave under the FFCRA, and allow them to exhaust these benefits before requiring them to return to work.

If an employer recalls employees from layoff or furlough on a reduced-hours basis, may such workers still receive unemployment benefits?

Possibly. In general, if an employee is working less than full time and the worker’s weekly wages are less than her or his weekly benefit amount as determined by the state, the employee might 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.

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, 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 company 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 must employers consider if they want to continue the teleworking plan they devised during the stay-at-home order?

1. The business must assess its technological capabilities. Did it implement security and privacy protocols, or do they need to be added?
2. The business must determine whether remote workers have the equipment required to do their jobs. Can the company ensure that they will continue to have access to the proper equipment? Can it provide remote help-desk assistance on a long-term basis?
3. 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 injuries an employee suffers while working remotely. These matters are covered extensively in "Sullivan on Comp," Chapter 5: Injury, and addressed in this book's workers' compensation section, Injuries at Home or Due to the Home Office.

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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