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Your Toughest Return-to-Work Questions Answered

During our recent webcast, Returning Employees to Work: When, Who, and How?, we received questions from attendees about how to bring workers back safely, while also following rules governing pay, nondiscrimination, and leave. In this Tip, we answer questions about screening employees entering the workplace, paying employees during quarantine, and more.

Screening Employees:

Background:

Some jurisdictions that are allowing businesses to reopen require employers to implement screening practices to help ensure it's safe for employees and customers to enter the workplace. Even without such requirements, employers are screening employees and visitors using temperature checks, COVID-19 virus testing, and/or self-certifications.

Certain screening practices may be considered medical examinations and therefore subject to rules under the Americans with Disabilities Act (ADA) and similar state laws. Generally, medical examinations must be job-related and consistent with business necessity. According to the U.S. Equal Employment Opportunity Commission (EEOC), if an employer's screening practices are consistent with advice from the CDC and public health authorities, then the employer will generally meet ADA rules.

Q: Can I take an employee's temperature before allowing them into the workplace?

A: According to the EEOC, employers may measure an employee's body temperature to screen for COVID-19. The CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued precautions, including recommending temperature checks. Keep in mind, however, that some people with COVID-19 don't have a fever.

Q: Can I require employees to get a test to determine whether they have COVID-19?

A: The EEOC says employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore, an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.

Q: What should I do if an employee refuses to get tested?

A: If an employee objects to testing, ask them why and consider whether and how their concerns can be addressed. For instance, if the employee cites a sincerely held religious reason, consider if a reasonable accommodation can be provided, such as allowing the employee to telework.

Q: Before allowing employees to return to work, can I require them to get an antibody test for COVID-19?

A: Current EEOC guidance permits COVID-19 virus testing but not antibody testing. The EEOC says it will continue to closely monitor the CDC's recommendations, and could update these guidelines in response to any changes in the CDC's recommendations, but currently antibody testing isn't permitted.

Q: What should an employer do if an asymptomatic employee informs them that they have been in close contact with someone who has COVID-19? What is considered close contact? And does it matter if they were wearing a face covering?

A: Ask the employee to follow CDC, state, and local guidelines. The CDC recommends that the general public stay home until 14 days after last exposure and watch for symptoms if they have close contact with someone with COVID-19. Employers usually would be justified in barring employees from entering the workplace in these circumstances.

For the general public, the CDC defines close contact as less than six feet for an extended period of time (generally, 15 minutes or longer). Factors to consider when defining close contact include proximity, the duration of exposure, and whether the individual has symptoms (coughing likely increases exposure risk). The CDC says the determination of close contact should be made irrespective of whether the person with COVID-19 or the contact was wearing a face covering.

Q: One of my employees is asymptomatic but on a 14-day quarantine because of close contact with someone who has COVID-19. They just informed me that they have had close contact with another individual who has COVID-19. What does the CDC say about these situations?

A: As mentioned above, the CDC generally recommends asymptomatic individuals stay home for 14 days after last exposure. If there are two exposures, the 14 days is from the date of the latter exposure.

Q: An employee informed me that they had close contact with someone who has COVID-19. The employee is asymptomatic but went for a COVID-19 test, which came back negative. Does the CDC still recommend that they stay home for 14 days?

A: A negative test result doesn't change the CDC's recommendation for asymptomatic individuals in the general public to stay home for 14 days after last exposure. Even if an individual tests negative for COVID-19 or feels healthy, they should stay home since symptoms may appear two to 14 days after exposure to the virus.

Note: The CDC has separate guidelines for healthcare workers and critical infrastructure workers.

Returning Employees:

Q: I have an employee who I'd like to bring back, but I think they may be reluctant because they're a single parent. How should I handle this type of situation?

A: Avoid making assumptions or employment decisions based on an employee's caregiving responsibilities or whether the employee has used, or may use, leave to care for a child, such as leave available to them under the Families First Coronavirus Response Act (FFCRA). These actions may implicate nondiscrimination and anti-retaliation laws, including those that prohibit gender and family status discrimination. Make sure your reasons for bringing workers back are based on legitimate job-related factors, and document your decisions for returning your employees to work.

Q: What should I do if employees are reluctant to come back because they're receiving more money through unemployment?

A: The additional $600 per week of jobless benefits is set to expire at the end of July and many employees want to return to work if it's safe and allowed by law. Also, unemployed workers typically have to attest each week that they haven't refused an offer of work to keep receiving benefits. Keep in mind that employees may still be eligible for unemployment benefits if they refused the offer for "good cause" (as defined by state law). For instance, if you substantially change the job, hours, or pay, the employee may be eligible for unemployment benefits. Some states will also continue benefits if the worker rejected the offer because they may be at a higher risk of severe illness from COVID-19.

Q: Is there anything that prohibits an employer from asking an employee to return to work if they're at a higher risk?

A: Assuming the employee is otherwise eligible to return to work under state or local COVID-19 orders, there is no prohibition on asking them to return to work. In fact, failing to ask them to return because of their underlying condition could violate nondiscrimination laws. For instance, the EEOC has stated that the ADA doesn't allow the employer to exclude the employee – or take any other adverse action – solely because the employee has a disability that the CDC identifies as potentially placing the employee at "higher risk for severe illness." Under the ADA, this action would be allowed only when the employee's disability poses a "direct threat" to their health that cannot be eliminated or reduced by reasonable accommodation. Consult legal counsel when making this determination.

Note: State and local nondiscrimination laws may offer additional protections.

Q: If an employee decides to travel or attend large gatherings, do we have the right to tell them they have to stay away from the workplace for 14 days?

A: Depending on the circumstances, employers may be able to require employees to undergo a 14-day self-quarantine. For instance, some states are requiring individuals to self-quarantine for 14 days after traveling from certain locations. However, there are some caveats to consider and employers may want to consult legal counsel. For example, state law may protect employees from adverse action based on lawful off-duty conduct and/or political activity. Also keep in mind that a blanket policy that applies to all travel and group gatherings may come across as heavy handed in cases in which there is a low risk of exposure. For these reasons, employers may want to conduct an individualized risk assessment using the CDC's guidelines.

Note: To the extent possible, employers may want to allow employees to telework for the 14-day quarantine period.

Paying Employees:

Q: If an employee is on a 14-day self-quarantine, do we have to pay them for that time?

A: Check applicable policies, collective bargaining agreements, and federal, state, and local laws to determine if pay is required. For example, under the FFCRA, employees are entitled to use emergency paid sick leave when they are unable to work (or telework) because they're subject to a federal, state, or local quarantine or isolation order (and certain other reasons). The employer must generally pay employees their regular rate of pay or the applicable minimum wage, whichever is higher, up to a maximum of $511 per day (and a total of $5,110).

State and local paid leave laws may also require pay, and some jurisdictions are enacting emergency rules to require paid leave in such situations. Absent an applicable paid leave requirement or an employer policy indicating otherwise, non-exempt employees (those entitled to minimum wage and overtime) are paid only for "hours worked." Therefore, if non-exempt employees perform no work, the employer is generally under no obligation to pay them. With limited exceptions, employees who are classified as exempt from minimum wage and overtime must generally receive their full salary in any workweek in which they perform work, regardless of the number of hours worked.

Q: Some of my employees have offered to volunteer time without pay as we reopen. Is this allowed?

A: In general, non-exempt employees working for private, for-profit employers must be paid at least the minimum wage and cannot volunteer their services. Additionally, if an exempt employee works any part of the workweek for private, for-profit employers, they generally must be paid their full salary and cannot volunteer their services. In certain circumstances, volunteering in the public and non-profit sectors may be allowed.

Conclusion:

When bringing employees back to the workplace, make sure you comply with applicable federal, state, and local laws, orders, and guidelines, many of which continue to evolve. For more information, visit the Reopening Your Business section of our COVID-19 Resource Center and view our latest webcast.

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