With COVID-19 cases rising again in some areas, employers may have new questions about quarantines, testing, masking, vaccination, and paid time off. 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: As of January 19, 2023, the CDC's 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.

Note: 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.
• Get tested at least five full days after their last exposure.
• Follow isolation protocol if they develop symptoms/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.

COVID-19 testing

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

A: In July 2022, the U.S. Equal Employment Opportunity Commission (EEOC) updated its guidance on conducting COVID-19 tests on employees. At the time, the EEOC said the changes were made to acknowledge that the pandemic circumstances have evolved as cases had dropped significantly. The EEOC hasn’t updated the guidance since then.

In the July 2022 guidance, the EEOC makes clear that employers covered by Americans with Disabilities Act must assess whether the current pandemic and workplace circumstances justify such testing to prevent the transmission of COVID-19. Specifically, employers must show the viral testing is job-related and consistent with business necessity.

The EEOC suggests that employers consider various factors in making the assessment of whether it is consistent with business necessity, including:

• 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 variants;
• The possible severity of illness from the current variants;
• What types of contacts employees may have with others in the workplace or elsewhere that they are required to work with (e.g., working with medically vulnerable individuals); and
• The potential impact on operations if an employee enters the workplace with COVID-19.

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 July 2022 guidance, the EEOC retains that language but adds that if an employer screens everyone (i.e., applicants, employees, contractors, visitors) for COVID-19 symptoms 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. However, the screening must be limited to the same screening that everyone else undergoes.

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 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 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.

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

Several states have 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.

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. For example:

California

In California, a state requirement that employers with 26 or more employees provide COVID-19 Supplemental Paid Sick Leave expired on December 31, 2022.

Colorado

In Colorado, a requirement that all employers provide up to 80 hours of public health emergency leave (PHEL) for COVID-19 will continue until four weeks after all applicable emergency declarations end or are suspended. Based on current emergency declarations, Colorado’s PHEL requirement will continue at least into May 2023 and may extend longer if either the federal or the state declaration is renewed further into 2023.

Check your state and local laws for details.

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.

Note: Some state and local jurisdictions require employers to provide paid leave to employees so that they can be vaccinated. For example, a New York law grants employees paid time off to receive a COVID-19 vaccination. This requirement has been extended through December 31, 2023.

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.

Note: Some state and local jurisdictions are contemplating reinstating mask requirements. Check your state and local health department for details.

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.

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.