COVID-19 Cases on the Rise Again: What Steps Employers Can Take Now

With COVID-19 cases on the rise again, employers have begun contacting us with questions about their responsibilities for protecting employees, paying employees who are unable to work, and providing paid time off. Below are answers to the most commonly asked employer questions about COVID-19 right now.

Isolation and quarantine

Q: What are the CDC's current guidelines for quarantine and isolation?

A: As of September 6, 2023, the Centers for Disease Control and Prevention’s (CDC) recommendations are as follows:

Isolation

People with presumed or confirmed COVID-19 or showing symptoms of COVID-19 (regardless of vaccination status):

• Should isolate (stay home in a separate room from others) for at least 5 full days; and
• At the end of at least 5 full days, if they are fever-free for 24 hours without the use of fever-reducing medication and their other symptoms have improved, they may end isolation provided they continue to wear a mask when indoors around others until day 11.
  

If they had symptoms and had moderate (shortness of breath) or severe illness (hospitalization), they should isolate at least through day 10.

Quarantine

Regardless of vaccination status, people who are exposed to COVID-19 should:

• Wear a mask and watch for symptoms for at least 10 days.
• Get tested at least five full days after their last exposure.
• Follow isolation protocol if they develop symptoms/test positive.

You can also stay up-to-date by following the CDC's guidance on prevention and the CDC’s guidance on exposure.

Q: My state has its own quarantine and isolation rules that conflict with the CDC's recommendations. Which should I follow?

A: The CDC's recommendations don't supersede state, local, tribal, or territorial laws, rules, and regulations. Therefore, you should follow your applicable state rules.

Q: If an employee gets COVID-19, can I ask for a negative test before they return to work after the isolation period?

A: The CDC says employers shouldn't require sick employees to provide a COVID-19 test result or a healthcare provider's note to validate their illness, qualify for sick leave, or to return to work. Also, keep in mind that under state and/or local rules, the employee may be entitled to use other options for returning to work, such as completing the applicable isolation protocol. Check your state and local rules for details.

COVID-19 testing

Q: Can I require employees to take a COVID-19 test?

A: In May 2023, the U.S. Equal Employment Opportunity Commission (EEOC) updated its guidance on conducting COVID-19 tests on employees.

In the guidance, the EEOC makes clear that if an employer implements screening protocols that include COVID-19 viral testing, federal law requires that any mandatory medical test of employees be “job-related and consistent with business necessity.”  

The EEOC states that employer use of a COVID-19 viral test to screen employees who are or will be in the workplace will meet the “business necessity” standard when it is consistent with guidance from the CDC, the Food and Drug Administration (FDA), and/or state/local public health authorities that is current at the time of testing. The EEOC reminds employers that recommendations about COVID-19 testing may be revised based on new information and changing conditions.

If an employer seeks to implement screening testing for employees, such testing must meet the “business necessity” standard based on relevant facts. Possible considerations in making the “business necessity” assessment may include:

• The level of community transmission;
• The vaccination status of employees;
• The accuracy and speed of processing for different types of COVID-19 viral tests;
• The degree to which breakthrough infections are possible for employees who are “up to date” on vaccinations;
• The ease of transmissibility of the current variant(s);
• The possible severity of illness from the current variant;
• What types of contacts employees may have with others in the workplace or elsewhere that they are required to work (e.g., working with medically vulnerable individuals); and
• The potential impact on operations if an employee enters the workplace with COVID-19. 

In making these assessments, employers should check the latest CDC guidance (and any other relevant sources) to determine whether screening testing is appropriate for these employees and consider consulting legal counsel.

Q: Can I screen applicants for COVID-19 symptoms before an interview?

A: The EEOC has stated that an employer may screen job applicants for symptoms of COVID-19, provided it is after making a conditional job offer and as long as the employer does so for all entering employees in the same type of job. 

In the May 2023 guidance, the EEOC retains that language but clarifies that if an employer screens everyone for COVID-19 (i.e., screens all applicants, employees, contractors, and visitors because anyone potentially might have COVID-19) before permitting entry to the worksite, then an applicant in the pre-offer stage who needs to be in the workplace as part of the application process (e.g., for a job interview) may likewise be screened for COVID-19.

Q: If I determine I can require COVID-19 testing, do I have to pay employees for the time they spend getting tested?

A: The determination of whether pay is required for time spent undergoing COVID-19 testing can hinge on a variety of factors, including federal, state and local laws, regulations, and guidance, as well as the industry or type of work performed.

For example, the U.S. Department of Labor (DOL) has issued guidance that under federal law, employers are required to pay nonexempt employees for time spent waiting for and receiving COVID-19 testing at the employer's direction or on their premises during normal working hours. In addition, under federal law, employers are required to pay nonexempt employees for all hours that they work, including for time on their vacation day, if the task they are required to perform is necessary for the work they are paid to do. 

During the pandemic, the DOL released guidance that for some employees, undergoing COVID-19 testing may be compensable because the testing is necessary for them to perform their jobs safely and effectively. The example the DOL gave as such a case was a grocery store cashier who has significant interaction with the general public and was required by their employer to undergo a COVID-19 test on their day off during the pandemic. The DOL, however, hasn’t updated the guidance since the federal government ended the public health emergency in May 2023, and it is unclear if the example still applies. Employers should consult legal counsel to determine whether testing is integral and whether pay is required.

States and local jurisdictions may have requirements about paying for testing time as well. For example, California has a regulation that requires employers to offer testing at no cost and during paid time in certain circumstances. Under the regulation, the employee must be compensated for their time and travel expenses, regardless of whether the testing occurs during work hours.

California has also issued guidance indicating that under state law, employer-required COVID-19 testing is generally considered hours worked and therefore must be paid. If the employer requires an employee to obtain a COVID-19 test, then the employer must pay for the time it takes for the testing, including any time traveling and waiting for the test to be performed, according to the state's guidance. An employer cannot require the worker to utilize paid leave if the time is considered “hours worked,” according to the guidance.

Employers should check applicable rules and guidance and consult legal counsel if necessary.

Vaccination

Q: Can I require COVID-19 vaccination? Can I require a booster?

A: The U.S. Equal Employment Opportunity Commission (EEOC) has made clear that federal laws don't prevent an employer from requiring all employees physically entering the workplace to be vaccinated and boosted against COVID-19, subject to the reasonable accommodation provisions discussed below. However, some state laws may have restrictions.

Reasonable accommodations

Federal law requires an employer to provide reasonable accommodations for employees who, because of a disability or a sincerely held religious belief, practice, or observance, don't get vaccinated for COVID-19, unless providing an accommodation would pose an undue hardship on the employer's business.

Additionally, some employees may seek job adjustments or may request exemptions from a COVID-19 vaccination requirement due to pregnancy. If an employee seeks an exemption from a vaccine requirement due to pregnancy, you must treat them the same as you would other employees who are similar in their ability or inability to work. This means that a pregnant employee may be entitled to job modifications, including telework, changes to work schedules or assignments, and leave to the extent such modifications are provided for other similarly situated employees. Some states require pregnancy accommodations in additional circumstances.

Ensure that supervisors, managers and human resources personnel know how to handle such requests.

State laws

More than a dozen states have adopted rules that prohibit or further restrict employers from enforcing COVID-19 vaccine mandates. These states include:

• Arizona, Florida, Idaho, Indiana, Iowa, Kansas, Montana, Nebraska, South Carolina (set to expire 12/31/23), Tennessee, Texas, Utah, and West Virginia.
  

For example, Florida enacted legislation in November 2021 that prohibits private employers from imposing a COVID-19 vaccination mandate without providing exemptions for medical reasons (including pregnancy and anticipated pregnancy), religious reasons, COVID-19 immunity, periodic testing, and the use of employer-provided personal protective equipment (PPE). Many of these laws, including Florida's, have specific requirements for handling exemption requests.

Paid time off

Q: Are employees entitled to paid leave if they are unable to work because they or a family member must quarantine or isolate due to COVID-19?

A: There is currently no federal requirement to provide paid leave to employees if they are unable to work due to COVID-19, but several states and local jurisdictions require employers to provide such paid leave. These requirements may be part of paid sick leave laws, paid family and medical leave laws, and/or separate paid leave requirements for COVID-19 and similar public health emergencies. Some of the separate paid leave requirements have been extended into 2023, but others have expired. Keep in mind the latter groups’ requirements could be reinstated as cases rise. Check your state and local laws for details.

For example, New York continues to guarantee job-protected paid leave to workers who are subject to a mandatory or precautionary order of quarantine or isolation for COVID-19, issued by the state of New York, the Department of Health, local board of health, or any government entity duly authorized to issue such order, or whose minor dependent child is under such an order. Most employees would be entitled to financial compensation through a combination of benefits, which may include employer-provided COVID-19 sick leave, Paid Family Leave and disability benefits. 

Some states and local jurisdictions have adopted rules for excluding workers with COVID-19 from the workplace and require employers to maintain the employee's pay during the exclusion period. Check your state and local rules for details.

Even in the absence of a requirement to provide paid time off to employees for reasons related to COVID-19, many employers continue to offer paid leave to employees to encourage sick workers to stay home and prevent the spread of the illness.

Masks

Q: Can I reinstate a requirement for employees to wear a mask in the workplace to help reduce the spread of COVID-19?

A: Yes, most employers can require employees to wear masks in the workplace, regardless of vaccination status, subject to the reasonable accommodation provisions discussed above.

Q: At what point should I reinstate a mask mandate?

A: Some employers may implement a mask requirement when the CDC reports that the COVID-19 Hospital Admission Level is high in the county where the employer is located, or where required by state, tribal, territorial, or local laws, rules, regulations, or existing collective bargaining agreements. As of the end of August 2023, only about a dozen counties in the United States fell into this category. Some employers might implement mask requirements when hospitalizations reach a medium level in their county, even when not required to do so.

Q: Aren't employees going to be frustrated with reinstated mask requirements?

A: Yes, some employees could be frustrated, but you can help manage their impression of the situation by how you communicate any changes. For example, be sure to let employees know why the change is necessary (such as, to help protect employees, prevent the spread of COVID-19, given the rise in cases, and/or comply with new guidance or rules). Additionally, thank them for being able to adapt in the constantly changing environment that the pandemic has created and let them know their safety will continue to be your top priority.

Q: Do I have to pay for masks for employees?

A: Some COVID-19 related state and local regulations and orders require employers to pay for masks. Employers may also be subject to requirements under existing state and local rules for paying for equipment and/or uniforms used on the job. Check your state and local rules to ensure compliance.

Under federal rules, employers are prohibited from deducting from an employee's wages the cost of any items that are considered primarily for the benefit or convenience of the employer if it would reduce the employee's earnings below the minimum wage or cut into their overtime pay. There is no specific guidance about whether this rule would apply to face coverings. Therefore, unless state or local rules provide further guidance, ensure that face coverings don't reduce the employee's pay below the applicable minimum wage or cut into overtime earnings.

Generally, employers must pay the full costs of any personal protective equipment (PPE) required under the Occupational Safety and Health Act.

Other steps to consider

Q: What else can I do to help prevent the spread of COVID-19?

A: Here are just a few examples:

• Encourage employees to stay home if they feel sick. Employers may also want to consider offering more generous leave benefits to encourage employees to stay home when sick and give them flexibility to manage family responsibilities.
  
• Increase space and distance between employees. Post signs to encourage employees to increase space and distance and avoid crowding.
• Check ventilation. Consistent with CDC guidance, optimize indoor ventilation by increasing the proportion of outdoor fresh air brought into the facility via the HVAC system, maximizing outside air in the building’s HVAC system, improving filtration to the highest efficiency filter that the HVAC system can handle, or reducing/eliminating recirculation.

Check your state and local health and safety agencies, which may have their own requirements or guidance.

Conclusion

Ensure that your policies and practices comply with the latest federal, state and local guidance and rules on COVID-19 and watch for developments closely.