In this guidance, we continue to answer frequently asked questions from U.S.-based employers across industries responding to COVID-19. We address employment considerations (and note certain related employee benefits considerations) relating to reopening workplaces as stay-at-home orders are lifted.
The below information is updated as of May 11, 2020. Future developments may warrant further updates, and we encourage employers to reach out to a member of the Sidley Employment Team with questions and for guidance regarding their specific situation. Qualified legal counsel can help ensure that employer policies, practices and decisions reflect the most up-to-date developments in the law and state and local government and public health authority responses to COVID-19. This guidance regards only U.S. employment law.
For further updates and other resources, please be sure to check our Sidley COVID-19 Resource Center page: https://www.sidley.com/en/insights/resources/coronavirus-resources.
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Given the rapidly developing situation, we strongly encourage employers to reach out to a member of the Sidley Employment Team with questions regarding their specific labor- and employment-related situations. Legal developments at the federal, state and local levels may affect employers’ potential range of responses to each of the below issues. We are closely monitoring these developments. The information provided should not be used or applied in any manner that prevents employers from taking reasonable, common-sense steps to protect the health and safety of employees, customers, vendors and their communities. Again, individualized legal counsel on these questions is critically important.
While our guidance notes certain employee benefits and compensation considerations, the actual impact of the relevant employer actions will vary based on the specific actions taken and will depend on plan terms that differ from plan to plan and from employer to employer. We suggest that employers seek legal counsel with respect to compensation and benefits-related implications of specific employment actions, including reaching out to a member of the Sidley Employee Benefits and Executive Compensation Team.
How might employers consider modifying worksites and workplace practices in light of COVID-19?
Depending on an employer’s business, location, nature of the worksite, applicable laws and guidance from federal and local public health authorities, employers may consider some or all of the following when preparing to reopen worksites:
- implementing enhanced cleaning routines for high-traffic or common areas
- installing physical barriers between employee work stations and/or customers
- rearranging workstation spacing to support social distancing efforts
- limiting the number of people who can be in certain locations, such as elevators
- modifying work schedules to minimize the number of people physically in the workplace
- increasing remote-work capabilities
- modifying visitor policies and limit on-site meetings, conferences and events
- requiring (and/or providing) personal protective equipment (PPE), including face coverings and gloves1
- requiring employees to bring lunches or providing packaged meals to employees to minimize outside exposure
- conducting temperature screenings and/or reliable COVID-19 testing to the extent available (but only pursuant to current guidance from the Centers for Disease Control and Prevention (CDC) and U.S. Food and Drug Administration)2
The symptomatic employee should be sent home or told to stay home. The employer should, as a general practice, notify persons who may have been exposed of the possible exposure without identifying the identity of the employee. Employers also should take other appropriate steps in response to the report, including activating specific cleaning protocols as warranted.
Employers of critical infrastructure employees may wish to review CDC-issued guidance regarding a variety of safety practices for employers who choose to permit asymptomatic critical infrastructure employees to continue to work following a potential exposure to COVID-19. Among other things, this guidance states that information on persons who had contact with the employee over the period beginning two days before the employee’s onset of symptoms should be compiled. As noted above, guidance is regularly being updated, and we recommend that you consult with legal counsel as these issues arise in your workplace.
The EEOC has said that employers subject to the ADA are permitted to ask employees if they are experiencing symptoms associated with COVID-19 consistent with the ADA’s requirements. In a recent webinar, the EEOC indicated that different considerations may apply in cases involving employees who are teleworking and not physically interacting with coworkers.13 As always, employers should consider that applicable state law may be less permissive than what the EEOC currently allows.
Employers should conduct these screenings in a consistent manner; the EEOC has advised that employers may ask targeted employees such questions only if the employer has a reasonable belief based on objective evidence that this individual might have COVID-19.14
Any information regarding an employee’s COVID-19 symptoms or diagnosis must be kept confidential consistent with the legal requirements applicable to employee medical records. Please see the question and answer above for further discussion of these considerations.
Yes, and federal, state and local laws may guarantee leave taken for certain COVID-19 reasons for certain employees. Nationwide, eligible employees will be able to take paid job-protected leave under the Families First Coronavirus Relief Act (FFCRA) for a number of COVID-19-related reasons if their employers are covered under the FFCRA. States and cities — like New York18 and San Francisco19 — have passed measures to ensure certain employees will be able to take leave for certain COVID-19-related reasons, and we expect similar legislation to be passed in the coming weeks and months. Further, Family and Medical Leave Act-eligible employees will be able to take unpaid leave for covered reasons, and several states (and cities) offer paid or unpaid leave through their own pre-existing programs that certain employees may be eligible to use if they have (or a family member has) COVID-19. Whether employees will be able to use employer-provided leaves is generally determined by the specific policies of that employer. Under California law, employers cannot require quarantined employees to use paid sick leave, but employees may choose to do so.20
Employers may also consider whether to adopt leave-sharing arrangements pursuant to which U.S. employees with accrued leave are permitted to donate their unused leave to a “bank” maintained by the employer for use by other U.S. employees. Employees who must be away from work and would otherwise be required to take unpaid leave then have the opportunity to avail themselves of paid donated leave instead. This Sidley Employee Benefits Update about Employee Leave-Sharing Programs in the Age of COVID-19 provides further information.
Please contact us with any questions regarding state-specific guidance or application to your workplace. Contact information for the Sidley COVID-19 Task Force can be found here: https://www.sidley.com/en/services/healthcare/sub-pages/covid-19-contacts.
1 Please note that if employers require that employees wear PPE, the employer must provide such equipment at its own expense. While PPE such as a cloth face mask need not meet OSHA standards, PPE such as respirators will need to meet Occupational Safety and Health Administration (OSHA) standards. Also, keep in mind that employers may also be required to provide reasonable accommodations with respect to such protective gear. For example, employers who require that employees wear gloves may be required to provide nonlatex gloves to an employee with an allergy. EEOC, What You Should Know About the ADA, the Rehabilitation Act and Other EEO Laws, https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.
2 The Equal Employment Opportunity Commission (EEOC) has stated that given the current circumstances surrounding COVID-19, employers covered by the Americans With Disabilities Act may measure employees’ body temperature. Employers will also be able to administer an “accurate and reliable” COVID-19 test but will need to review guidance from relevant authorities about what is and is not considered safe and accurate testing and should consider incidences of false negatives and false positives associated with a particular test. The EEOC has said that such testing should not take away from the importance of infection control practices including routine disinfection, social distancing, regular handwashing and other measures. EEOC, What You Should Know About the ADA, the Rehabilitation Act and Other EEO Laws, https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.
3 New York Executive Order, https://www.governor.ny.gov/news/no-20216-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency; Illinois Modified Stay at Home Order, https://www2.illinois.gov/dceo/Media/PressReleases/Pages/PR20200423.aspx.
4 OSHA, Guidance on Preparing Workplaces for COVID-19, https://www.osha.gov/Publications/OSHA3990.pdf. Some states have their own OSHA-approved state plans that may impose additional obligations.
5 CDC, Symptoms of Coronavirus, https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html.
6 City of Chicago Orders Sick Residents to Remain Home to Prevent Further Spread of Covid-19, https://www.chicago.gov/city/en/depts/mayor/press_room/press_releases/2020/march/MandateSickResidents.html.
7 California Department of Industrial Relations: Coronavirus Disease (COVID-19) FAQs on laws enforced by the California Labor Commissioner’s Office, https://www.dir.ca.gov/dlse/2019-Novel-Coronavirus.htm.
8 High-risk individuals, as defined by the CDC, can include those with chronic medical conditions and those who are 65 and older. CDC, People Who Are at Higher Risk for Severe Illness, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html.
9 EEOC, What You Should Know About the ADA, the Rehabilitation Act and Other EEO Laws, https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws. (“The ADA and Rehabilitation Act rules continue to apply, but they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC about steps employers should take regarding the Coronavirus.”)
10 EEOC, What You Should Know About the ADA, the Rehabilitation Act and Other EEO Laws, https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.
11 EEOC, What You Should Know About the ADA, the Rehabilitation Act and Other EEO Laws, https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws. As of May 11, the CDC has recommended that employers consider regular health screenings of temperature and respiratory symptom screening upon employee and visitor arrival each day in any area with minimal to substantial community transmission or impact. CDC: Schools, Workplaces & Community Locations, https://www.cdc.gov/coronavirus/2019-ncov/downloads/community-mitigation-strategy.pdf.
12 DOL, Fact Sheet #22: Hours Worked Under the Fair Labor Standards Act, https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/whdfs22.pdf; California Department of Industrial Relations, Coronavirus Disease (COVID-19) – FAQs on laws enforced by the California Labor Commissioner’s Office, https://www.dir.ca.gov/dlse/2019-Novel-Coronavirus.htm.
13 EEOC Coronavirus Webinar, March 27, 2020, https://www.eeoc.gov/transcript-march-27-2020-outreach-webinar.
14 EEOC Coronavirus Webinar, March 27, 2020, https://www.eeoc.gov/transcript-march-27-2020-outreach-webinar.
15 EEOC Coronavirus Webinar, March 27, 2020, https://www.eeoc.gov/transcript-march-27-2020-outreach-webinar. (citing the Genetic Information Nondiscrimination Act).
16 CDC, Travel Health Notices, https://wwwnc.cdc.gov/travel/notices.
17 CDC, COVID-19 and Cruise Ship Travel, https://wwwnc.cdc.gov/travel/notices/warning/coronavirus-cruise-ship.
18 New York State, Emergency COVID-19 Paid Sick Leave, https://www.governor.ny.gov/programs/paid-sick-leave-covid-19-impacted-new-yorkers.
19 Office of Labor Standards Enforcement, San Francisco Paid Sick Leave & The Coronavirus, https://sfgov.org/olse/san-francisco-paid-sick-leave-coronavirus.
20 California Department of Industrial Relations: Coronavirus Disease (COVID-19) FAQs on laws enforced by the California Labor Commissioner’s Office, https://www.dir.ca.gov/dlse/2019-Novel-Coronavirus.htm.
21 Also note that the Health Insurance Portability and Accountability Act (HIPAA) protections remain in effect, and covered entities will need to comply with its confidentiality requirements. Please see this Sidley Privacy and Cybersecurity Update for additional information on the limited HIPAA waiver in response to COVID-19.
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