COVID-19 FAQ

      • Can I require employees to be tested for COVID-19? 

        According to the EEOC, employers may ask employees to submit to COVID-19 symptom screenings before they enter the workplace to determine if they might have the virus. 
        Employers should ensure that the tests are accurate and reliable. Testing should be done consistently and is not a substitute for social distancing or other precautions. 
        Please note, however, that if an employee is getting a test at your request then you’ll need to pay for their time getting tested, as well as any out-of-pocket costs for the test. 
        If you suspect that an employee might have the novel coronavirus, you can ask them to provide doctor certification of their eligibility to return to work. Since you cannot ask them for their medical records, you should not ask to see their COVID test results, whether positive or negative. If an employee chooses to provide you the result, however, they are able to voluntarily do so. 

      • Can I require employees to take a COVID-19 antibodies test? 

        No. The EEOC recently issued guidance explaining that employers cannot require employees to take the antibody test before returning to work.This decision is based on CDC Interim Guidelines saying that antibody test results “should not be used to make decisions about returning persons to the workplace.”
        The EEOC says they will continue to closely monitor CDC recommendations, and could update their decision in response to changes in CDC recommendations.
        If you have access to an antibodies test, you could certainly tell your team that you are able to make it available if they would like to get it through you. You can also let them know of available testing sites in your area.
        Just make clear that this is voluntary, and that antibody testing is not being required as a condition of employment. If there are any costs to the employee that aren’t covered by insurance, you offering to cover those costs would also help motivate your team to submit to the test.

      • Should I send an employee home if they are sick or have COVID-19 symptoms?

        You can and should ask your employees to self-report any symptoms of the virus (i.e. fever, chills, cough, shortness of breath, difficulty breathing, or sore throat) that they have.
        If an employee reports having one or more of these symptoms, or if you observe them yourself, the CDC is recommending that the individual stay home (or be sent home) from work. As an employer, you are able to require employees to stay home if they are sick.
        This is a public health recommendation and not a requirement, so ultimately the decision is up to you as a business owner. We are hearing from many owners who are having too many staffing problems with sending someone each time they have some symptoms.
        We’re hearing from just as many owners who prefer to deal with staffing issues over risking others becoming infected and potentially needing to close down for a period of time.
        You need to make the best decision for your business, based on each situation. Make sure you document your reasoning for sending this employee home, having them telecommute, or allowing them to work.

      • What do I do if an employee tests positive for COVID-19?

        If an employee tests positive, they should stay home from work until they are cleared to return by their healthcare provider.
        Note that you can’t require an employee to provide you with their medical records, so we do not recommend trying to force your employee to provide you a copy of negative test results.

      • When should I let the employee come back to work?

        We recommend that you defer to the employee’s own healthcare provider for this decision. Their provider may or may not have the employee get a COVID-19 test, and ultimately that’s between the provider and the employee.
        We do recommend getting something in writing that confirms they’re able to come back to work. Tell the employee that you will need either a doctor’s note clearing them to return to work, or documentation of a negative COVID-19 test.
        Just note that you cannot require that they give you a copy of test results, as that is their private medical information. But they can certainly choose to supply it.

      • When can the employee come back to work?

         COVID-19 positive employees should remain at home until they have passed either the “Test approach” or the “Symptom approach” (Please note the two options): 
        TEST APPROACH:
        - Employee has no fever (without medication) and other symptoms improve, and a negative COVID-19 test along with a doctor note.
        OR
        SYMPTOM APPROACH:
        - Employee has no fever (without using medication) for 72 hours and other symptoms have improved, and at least 10 days have passed since symptoms first appeared.
        Please note that the best way to avoid office interruptions after a COVID-19 exposure is to ensure all employees wear PPEs at all times in the office.

      • If employees have been exposed but are not showing symptoms, should I allow them to work?

         Employees may have been exposed if they are a “close contact” of someone who is infected, which is defined as being within about 6 feet of a person with COVID-19 for a prolonged period of time:
        • Potentially exposed employees who have symptoms of COVID-19 should self-isolate and follow CDC recommended steps.
        • Potentially exposed employees who do not have symptoms should remain at home or in a comparable setting and practice social distancing for 14 days.

        All other employees should self-monitor for symptoms and wear cloth face coverings when in public. If they develop symptoms, they should notify their supervisor and stay home.

        See Public Health Recommendations for Community-Related Exposure for more information.

        To ensure continuity of operations of essential functions, CDC advises that critical infrastructure employees may be permitted to continue work following potential exposure to COVID-19, provided they remain symptom-free and additional precautions are taken to protect them and the community.
        Critical infrastructure businesses have an obligation to limit, to the extent possible, the reintegration into the worksite of in-person employees who have been exposed to COVID-19 but remain symptom-free in ways that best protect the health of the employee, their co-employees, and the general public.
        o Remaining at home for 14 days may still be the most preferred and viable option for exposed employees.

        • An analysis of core job tasks and workforce availability at worksites can allow the employer to match core activities to other equally skilled and available in-person employees who have not been exposed.

        • A critical infrastructure employee who is symptom-free and returns to work should wear a cloth face covering at all times while in the workplace for 14 days after last exposure. Employers can issue cloth face coverings or can approve employees’ supplied cloth face coverings in the event of shortages.
        See Implementing Safety Practices for Critical Infrastructure Employees Who May Have Had Exposure to a Person with Suspected or Confirmed COVID-19 and COVID-19 Critical Infrastructure Sector Response Planning for more information
        Click HERE to read the full article.

      • What should I do if I find out several days later, after an employee worked, that they were diagnosed with COVID-19?

        • If it has been less than 7 days since the sick employee used the facility, clean and disinfect all areas used by the sick employee following the CDC cleaning and disinfection recommendations.• If it has been 7 days or more since the sick employee used the facility, additional cleaning and disinfection is not necessary. Continue routinely cleaning and disinfecting all high-touch surfaces in the facility.• Other employees may have been exposed to the virus if they were in “close contact” (within approximately 6 feet) of the sick employee for a prolonged period of time.      o If an employee is confirmed to have COVID-19, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the Americans with Disabilities Act (ADA).      o Those who have symptoms should self-isolate and follow CDC recommended steps.      o In most workplaces, those potentially exposed but with no symptoms should remain at home or in a comparable setting and practice social distancing for 14 days.      o Critical infrastructure employees should follow Implementing Safety Practices for Critical Infrastructure Employees Who May Have Had Exposure to a Person with Suspected or Confirmed COVID-19. A critical infrastructure employee who is symptom-free and returns to work should wear a cloth face covering at all times while in the workplace for 14 days after last exposure. Employers can issue cloth face coverings or can approve employees’ supplied cloth face coverings in the event of shortages.• Employees not considered exposed should self-monitor for symptoms. If they develop symptoms, they should notify their supervisor and stay home.Click HERE to read the full article.

      • Is my business exempt from the FFCRA requirements?

        According to the law, healthcare providers (including dentists) and small business owners with less than 50 employees may be able to exempt themselves from the paid-leave requirements put forth by the FFCRA. (# 58 on the DOL FFCRA FAQ) 
        That said, we generally recommended that employers resist the temptation to exempt themselves from these requirements and encourage them to pay out for all forms of emergency leave offered under the law. Here’s why:
        • You Get That Money Back, AnywayThe FFCRA provides 100 percent tax credits for any emergency leave payments you make under the law.So, if you decide to pay out for emergency leave at any point, you can expect to get all of that money back. The IRS has provided guidance on how you can access this reimbursement, often through your payroll provider.
        • Not Paying Could Cause Employees to Hide COVID Symptoms or Exposure EventsIf your employees know that they will not be paid for time off should they find themselves needing to quarantine and/or seek medical treatment, they may try to hide their symptoms and will be less likely to self-report symptoms or exposure events since it will mean a loss of income for them. Thus, instead of one person being out of the office for a few days while awaiting test results, you may end up having all of your staff out because they became infected by a sick person who continued to come to work.
        • Not Paying Won’t Change Your Employee’s Inability to WorkIf you choose not to provide FFCRA pay, that does not mean your employee will suddenly be available to come to work. They are still going to be sick, need to quarantine, or not have childcare. So, by not paying leave, not only will you still find yourself short-staffed, but you will also likely be dealing a blow to team morale. Further, you may find yourself needing to hire a new employee if that person is upset enough by your decision to refuse to come back at all.
        • Not Paying FFCRA Leave Could Send a Negative Signal to Your TeamIf your employees know that you could pay FFCRA leave without detriment to your business, not providing those payments could lead them to start looking for a new job or, at the least, could have a negative impact on employee morale.
        • Your Exemption May Not Hold UpWhere the “healthcare exemption” under the FFCRA has been clarified, The Department of Labor (DOL) has provided very little guidance on what qualifies small businesses as exempt from the law except to say that business with less than 50 employees “may be exempt.” If you are claiming a small business exemption, all you can do is keep records as to why you think you qualify and hope that nobody raises a complaint about it later.

      • Can I restrict employees for personal travel?

        The answer to this question is not black and white, but requires an understanding of applicable state and federal laws. Initially, the laws of many states provide that an employee’s employment is “at will” unless the parties have a written agreement providing otherwise, and employers generally have discretion to institute policies to ensure the safety of their employees. Under “at-will” employment, an employee can be terminated for any reason — or no reason — so long as the employee’s conduct does not violate public policy or state law (such as engaging in illegal discrimination). But just because the law may allow employers to prohibit or restrict employee personal travel and enforce travel restrictions under penalty of termination, there are both practical and legal considerations to consider before instituting such a policy.
        Some states prohibit employers from taking adverse action on the basis of an employee’s lawful activity that occurs away from the employer’s premises. For example:
        • Colorado: Employers are prohibited from terminating an employee based on the employee's engagement in any lawful activity away from the employer’s premises during nonworking hours.
        • New York: It is unlawful for employers to discriminate against employees for engaging in recreational activities outside of working hours, off the employer’s premises and without use of the employer’s equipment or other property, if such activities are legal.
        Under such a law, the employer could not restrict its employees from engaging in otherwise legal activity such as personal travel to areas affected by COVID-19. Nor could an employer prevent an employee from traveling to render care to a family member with a serious health condition under the Family Medical Leave Act (FMLA).
        If an employee wants to take time off from work to go on a trip, you are able to deny that request. Requests for vacation have to be approved in advance, and you are able to deny requests that are unreasonable or create a staffing issue for your team.
        In particular if an employee’s travel would put them under a quarantine order upon their return based on your state or local law, you would have them out of the office even longer.
        That means a request for 3 days off could actually end up with them needing to take off over two weeks. You are certainly empowered to deny a time off request based on not being able to accommodate that length of an absence. 

        However, employers do have the ability to maintain safe workspaces when employees travel inside or outside the U.S. during the COVID-19 pandemic.
        Source: https://www.foxrothschild.com/publications/can-employers-restrict-employees-personal-travel-amid-the-covid-19-pandemic/

      • What steps should employers take to maintain a safe workspace during the summer travel season?

        First, an employer may instruct employees to inform the employer of past or future travel plans to allow the employer to reasonably evaluate the risk to other employees or customers. If doing so, the employer should be sure to ask all employees to disclose the same travel information consistent with business necessity and Title VII of the Civil Rights Act of 1964. Title VII prohibits employers from discriminating against employees and applicants for employment on the bases of, among other categories, race, color, religion, national origin, sex and sexual orientation. The important thing here is that no employee is singled out based on their travel destination, which could be perceived as discrimination based on that employee’s membership in a protected class, including national origin. 
        Second, an employer can educate its employees about the risks associated with the personal travel. While contracting COVID-19 is certainly one of the most serious health risks currently associated with travel, employees also risk being stranded in a foreign country due to travel restrictions or being quarantined upon their return. Government-imposed travel restrictions change frequently as new outbreaks and hot spots appear in different regions around the globe. Employers should ensure their employees are aware of the COVID-19 Travel Recommendations by Country, which can find on the Centers for Disease Control and Prevention (CDC) homepage. Employees should be aware that the CDC currently mandates that individuals returning to the U.S. from any international travel self-quarantine for 14 days. In addition, multiple states have issued orders either recommending or requiring that individuals self-quarantine after returning from certain other states. Employers need to be aware that employees who are required to quarantine upon return from vacation may be eligible for leave under the Families First Coronavirus Response Act, if covered, or state or local leave laws.
        Third, an employer should monitor employees upon their return for signs and symptoms of COVID-19. Employers should also encourage employees who suspect possible exposure to self-monitor for signs and symptoms of COVID-19, and require them to report when they are sick or experiencing symptoms. If an employer reasonably believes an employee returning from a vacation is symptomatic or infected, the employer may require that the employee self-quarantine at home for 14 days. Employers can also require an employee who has traveled to a high-risk area to provide a doctor’s note certifying their fitness to return to work, provided employers are enforcing this policy equally among all employees returning from high-risk areas to avoid the appearance of discrimination.
        Even though the decision of whether to restrict employee travel in light of the COVID-19 pandemic is not clear cut, it should be made after consideration of applicable local, state and federal laws. This return-to-work checklist provides helpful guidance for the various issue’s employers should consider before re-opening. Most importantly, employers have the ability to ensure that all employees are protected from the risk posed by the travel plans of other employees. Consistent with this, employers should implement health and safety measures recommended by public health officials and ensure that those protocols are applied equally to employees returning from personal travel.
        The COVID-19 pandemic has created a myriad of new challenges to workplace safety. While it is impossible to eliminate all risk of COVID-19 entering a workspace, following the above guidelines will minimize the risk associated with employee travel. Employers should consult with their employment counsel before imposing the above guidelines or travel restrictions on their employees.
        Resource: https://www.foxrothschild.com/publications/can-employers-restrict-employees-personal-travel-amid-the-covid-19-pandemic/

      • Can I make employees get tested in order to return to work?

        According to the EEOC, employers may ask employees to submit to COVID-19 symptom screenings before they enter the workplace to determine if they might have the virus.
        Employers should ensure that the tests are accurate and reliable. Testing should be done consistently and is not a substitute for social distancing or other precautions.

        If you suspect that an employee might have the novel coronavirus, you can ask them to provide doctor certification of their eligibility to return to work.
        Since you cannot ask them for their medical records, you should not ask to see their COVID test results, whether positive or negative.
        Resource: Click HERE to read.

      • Things to consider when an employee is traveling.

        • Where are they travelling and what are public health experts saying about that location? If they’re travelling to a location that’s considered a “hot spot”, then it’s riskier to allow them to immediately return to work.
        State Department travel information
        CDC information for travel
        CDC travel health notices
        CDC guidance: COVID-19 and Cruise Ship Travel
        • How are they travelling? Plane travel is much riskier than travelling by themselves in their car.
        • What were they doing during the trip? Household family members staying in a vacation home for a few days is much different than someone visiting friends and going out to eat each day.
        • Did they practice appropriate social distancing protocols?
        • Are they aware of coming into contact with anyone who was symptomatic or who tested positive?
        • Did the employee experience any symptoms during their trip, or are they now upon their return?

        Encourage the employee to practice good hygiene on their trip (good advice really for all employees, traveling or not), and encourage them to self-report to you immediately if they find out they have been in close contact with anyone with the virus.

        You can use your best judgment from there on whether to have them come back to work or stay at home for a period of time.

      • Do I have to pay an employee if they are quarantining after travel?

        Some state, local, and territorial governments have requirements, such as requiring people to wear masks and requiring those who recently traveled to stay home for up to 14 days. Check state, territorial, tribal and local public health websites for information before you travel. If you are traveling internationally, check the destination’s Office of Foreign Affairs or Ministry of Health or the US Department of State, Bureau of Consular Affairs, Country Information page external icon for details about entry requirements and restrictions for arriving travelers, such as mandatory testing or quarantine.
        Resource: Click HERE to read.
        If your area has a travel quarantine order in place, then FFCRA pay likely applies. Otherwise, if someone is not working because they are under self-quarantine post-travel, you are not required to pay them for this time off. If they have PTO, vacation, or sick time, you should make that available. 
        Otherwise, if this is a quarantine simply out of abundance of caution, then you are not required to pay for that time.
        The FFCRA applies as follows:
        FFCRA requires employers with fewer than 500 employees to provide:
         Up to two weeks—80 hours—of paid sick leave at the employee's regular rate of pay when the employee is unable to work because he or she is quarantined under a government order or the advice of a health care provider, and/or is experiencing COVID-19-related symptoms and seeking a medical diagnosis.

         Up to two weeks—80 hours—of paid sick leave at two-thirds the employee's regular rate of pay when the employee is unable to work because of a need to care for an individual who is quarantined under a government order or the advice of a health care provider, or to care for a child whose school or child care provider is closed or unavailable for COVID-19-related reasons.

         Up to an additional 10 weeks of expanded family and medical leave at two-thirds the employee's regular rate of pay when an employee is unable to work due to a need to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.
        These expenses are to be repaid to the business through federal tax credits. Very small employers—those with fewer than 50 employees—should consider seeking an exemption from these requirements if, even with the tax credit, compliance with the FFCRA would be a hardship. 
        Sources: https://www.dol.gov/agencies/whd/pandemic/ffcra-employee-paid-leave

      • Pros and cons of voluntary payment during employer imposed quarantine.

        Employers that aren't subject to the FFCRA because of their size or for other reasons still may want to pay employees who are quarantined and unable to work.
        "As an employer, you want to encourage your employees to be honest and take the time away from work to ensure they are not infected," said Arielle Eisenberg, an attorney with Cozen O'Connor in Miami. "Employees oftentimes will not be honest about their potential exposure or travel if they have to quarantine without pay."

        Employers are trying to find ways to support their employees during the pandemic, Toth noted, and providing additional paid time off, even when they aren't required to do so, has been one of them.

        "The pros include employee satisfaction, retention and loyalty, as well as stopping employees from coming into the workplace when they have symptoms" and potentially spreading the virus, she said. "Some cons include the costs to the company and possible abuse by employees, which could result in businesses being understaffed."

        Sources: Click HERE to read.

      • Tread carefully even if FFCRA doesn't apply.

        Garland cautioned that employers that voluntarily pay quarantined workers should clarify a few points to limit liability, including:● Whether quarantined employees will continue to accrue vacation.● Whether quarantined employees will receive full or partial wages.
        If the employer decides to pay quarantined workers at less than their regular rate, it should be sure to comply with minimum-wage rules and threshold-pay requirements for exempt status, Garland said.

        Be careful not to characterize the payments as bonuses, which could impact regular rate of pay calculations in the future, she cautioned.
        The employer should note that any arrangement to pay employees during a quarantine is temporary and doesn't set precedent for any future, even seemingly similar, situation, Garland added.

        Nonexempt employees should not be permitted to work during the quarantine, despite payment, she said. Otherwise, "employers could risk exposure for meal or rest-break premiums and accrued overtime wages."

        Employers that voluntarily pay workers who are quarantining should make sure that the pay policy is administered objectively and consistently, said Brian Mead, an attorney with McDermott, Will & Emery in Chicago. "If employers are making inconsistent decisions, there is potential for legal exposure, including allegations of discrimination for providing certain leave benefits to some individuals but not others," he explained.

        Resource: Click HERE to read.

      • What to do if employee is confirmed with COVID-19? Should I close?

        In most cases, you do not need to shut down your facility. But do close off any areas used for prolonged periods of time by the sick person:
        • Wait 24 hours before cleaning and disinfecting to minimize potential for other employees being exposed to respiratory droplets. If waiting 24 hours is not feasible, wait as long as possible.

        Follow the CDC cleaning and disinfection recommendations:
        • Clean dirty surfaces with soap and water before disinfecting them.
        • To disinfect surfaces, use products that meet EPA criteria for use against SARS-Cov-2external icon, the virus that causes COVID-19, and are appropriate for the surface.
        • Be sure to follow the instructions on the product labels to ensure safe and effective use of the product.
        • You may need to wear additional personal protective equipment (PPE) depending on the setting and disinfectant product you are using.
        In addition to cleaning and disinfecting, employers should determine which employees may have been exposed to the virus and need to take additional precautions:
        • If an employee is confirmed to have COVID-19, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the Americans with Disabilities Act (ADA).
        • Employees who test positive for COVID-19 (using a viral test, not an antibody test) should be excluded from work and remain in home isolation if they do not need to be hospitalized. Employers should provide education to employees on what to do if they are sick.
        • Employers may need to work with local health department officials to determine which employees may have had close contact with the employee with COVID-19 and who may need to take additional precautions, including exclusion from work and remaining at home.
        • Most workplaces should follow the Public Health Recommendations for Community-Related Exposure and instruct potentially exposed employees to stay home for 14 days, telework if possible, and self-monitor for symptoms.
        • Critical infrastructure workplaces should follow the guidance Implementing Safety Practices for Critical Infrastructure Employees Who May Have Had Exposure to a Person with Suspected or Confirmed COVID-19.

        Sick employees should follow CDC-recommended steps. Employees should not return to work until they have met the criteria to discontinue home isolation and have consulted with a healthcare provider. Antibody test results should not be used to make decisions about returning persons to the workplace.

        Resource: Click HERE to read full article.