The rapid rise in COVID-19 cases has prompted new questions from employers about quarantines, testing, vaccination, paid time off and other benefits. Below, we provide answers to the most commonly asked questions by employers about COVID-19 right now.
Isolation and Quarantine:
Q: What are the CDC's current guidelines for quarantine and isolation?
A: On December 27, 2021, the Centers for Disease Control and Prevention (CDC) announced that it was shortening the recommended isolation and quarantine period for the general population. About a week later, the CDC further amended the recommendations. As of January 4, 2022, the CDC's recommendations are as follows:
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 around others for an additional 5 days (days 6 through 10).
People who are exposed to COVID-19 and either: 1) completed the primary series of a two-dose vaccine (Moderna and Pfizer), but have not received a recommended booster shot when eligible, 2) completed the primary series of the one-dose Johnson & Johnson vaccine over 2 months ago and haven't received a recommended booster shot, or 3) aren't vaccinated or haven't completed a primary vaccine series:
- Should quarantine (stay home) for at least 5 full days after their last close contact with someone with COVID-19;
- If they don't develop symptoms, they should get tested at least 5 days after they last had close contact with someone with COVID-19; and
- If they test negative, they can end their quarantine provided they continue to wear a mask when around others for an additional 5 days (days 6 through 10).
Certain Exposure to COVID-19:
People who are exposed to COVID-19 and either: 1) received all the recommended vaccine doses, including boosters and additional primary shots for some immunocompromised people, or 2) have had confirmed COVID-19 within the last 90 days (tested positive using a viral test):
- Should wear a mask when around others for 10 days.
- Don't need to quarantine/isolate unless they develop symptoms or test positive.
Note: Separate CDC quarantine/isolation guidance applies to healthcare workers.
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.
Q: Can I require employees to take a specific COVID-19 test, such as rapid test or PCR test?
A: Some employers may be subject to mandates to test employees under federal, state, and/or local laws, regulations, or orders. In such cases, the rules may define the type of tests that employers may require.
In the absence of such requirements, employers may choose the type of tests, provided they ensure that the tests are considered accurate and reliable. For example, employers may want to review information from the U.S. Food and Drug Administration about what may be considered safe and accurate testing, as well as guidance from CDC or other public health authorities.
Q: Do I have to pay employees for the time they spend getting tested for COVID-19?
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 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. For some employees, undergoing COVID-19 testing may be compensable because the testing is necessary for them to perform their jobs safely and effectively during the pandemic. For example, if a grocery store cashier who has significant interaction with the general public is required by their employer to undergo a COVID-19 test on their day off, such time is likely compensable because it is integral and indispensable to her work during the pandemic, according to the guidance. 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 to:
- Symptomatic unvaccinated employees, regardless of whether there is a known exposure.
- Employees who aren't fully vaccinated or who are vaccinated with symptoms in the event of a close contact at work, with an exception for certain symptom-free employees who recently recovered from COVID-19. Note: Effective January 14, 2022, employers are also required to make COVID-19 testing available at no cost and during paid time to employees who were fully vaccinated before the close contact with a COVID-19 case occurred, even if they are asymptomatic.
- Employees within an exposed group (as defined in the regulation) during an outbreak at work.
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.
Q: Are there any laws that would require COVID-19 vaccination among employees?
A: In late 2021, the federal government issued rules that generally require three types of employers to ensure that their workers are vaccinated against COVID-19:
- Employers with 100 or more employees,
- Federal contractors, and
- Healthcare facilities that participate in Medicare and Medicaid programs.
These rules have been subject to legal challenges, so employers should watch for developments closely.
Numerous states have also adopted COVID-19 vaccination requirements through regulations, executive orders, and emergency health orders. These requirements have generally targeted certain types of employees, such as healthcare workers and state employees. In some cases, employees may be able to submit to regular testing (and follow other safety protocols) instead of receiving the COVID-19 vaccine. In others, there is no alternative to vaccination and covered employees must generally be vaccinated by a certain deadline.
Meanwhile, some local jurisdictions are also requiring employers to ensure employees are vaccinated. For example, all private-sector employers in New York City must verify that their employees are vaccinated against COVID-19. In Chicago, all indoor dining facilities, indoor fitness, and indoor entertainment and recreation venues where food or beverages are served must verify employees are fully vaccinated against COVID-19.
Given the surge in COVID-19 cases, other jurisdictions are likely to consider similar requirements.
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.
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 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.
Several states have recently adopted rules that prohibit or further restrict employers from enforcing COVID-19 vaccine mandates. 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.
Q: What should I do if I am subject to a vaccine mandate and a state exemption requirement, which seem to conflict?
A: Employers should consult legal counsel to discuss the impact of these rules on their vaccination policies and practices.
Paid Time Off, Tax Credits, and Other Benefits:
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 health emergencies.
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 a requirement to provide paid time off to employees for reasons related to COVID-19, many employers are offering paid leave to employees to encourage sick workers to stay home and prevent the spread of the illness.
Q: If I offer paid leave for COVID-19, am I entitled to tax credits?
A: Employers are no longer eligible for federal tax credits for providing paid leave for COVID-19. Those tax credits ended September 30, 2021. However, there may be state tax credits or grants available for employers that provide paid leave for COVID-19. Check your state law and consult your tax advisor for details. For example, Massachusetts requires all employers to provide COVID-19 emergency paid sick leave, and employers that provide the leave may request reimbursement from the state's COVID-19 Emergency Paid Sick Leave Fund. The leave requirement will expire when the $75 million fund is exhausted or April 1, 2022, whichever occurs first.
Q: If employees get COVID-19, are they be entitled to workers' compensation benefits?
A: Workers' compensation coverage may be available in connection with provable workplace exposures that lead to infection and COVID-19 disease, but this will depend on state law. However, where there is widespread community transmission of the virus, it may be difficult to prove that the exposure that led to infection occurred at work. Some states have passed legislation, published regulations, or issued executive orders that would create a presumption that an employee who tests positive for or is diagnosed with COVID-19 contracted the virus while at work for purposes of receiving workers' compensation benefits if certain conditions are met. Check your state law for details.
Q: If I have an employee who has tested positive for COVID-19, should I report this as a workers' compensation claim?
A: If you feel that the sickness could be considered work related, report it through your normal workers' compensation claims reporting procedures. Your carrier will investigate the claim and determine compensability. As mentioned above, workers' compensation coverage may be available but this will depend on state law.
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.