As our nation continues to grapple with the impact of the coronavirus pandemic, many business leaders are assembling teams and task forces to determine the best way to safely return their employees from home to the physical workplace. Naturally, employees and employers alike are concerned about safety, and many organizations are seeking answers for what they can and cannot do regarding return-to-work concerns.
Common Concerns
In speaking with our clients, there are several common concerns that business leaders are dealing with as they reopen their doors and bring their employees back onsite. Some of these concerns include:
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Employee testing
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Processes and procedures when employees have COVID-19 symptoms
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Providing masks, face coverings, and other personal protective equipment (PPE)
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Implementing social distancing procedures and guidelines for the workplace
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Workers’ compensation and hazard pay
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Employee concerns with school reopening plans and childcare
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Keeping up with local and federal guidelines
As you’re probably aware, local, state, and federal guidelines are fluid and should be monitored frequently. Employers can access COVID-19 resources via the U.S. Equal Employment Opportunity Commission (EEOC), the Occupational Safety and Health Administration (OSHA), the Department of Labor (DOL), and the Centers for Disease Control and Prevention (CDC).
Common questions and answers from leading government resources
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What are an employer’s options regarding an employee’s ability to return to work due to childcare issues?
The situation surrounding school and daycare closures has put many families in a bind as parents and caregivers struggle to work from home while caring for and educating young children. From a business owner’s perspective, you are generally not required to accommodate childcare requests, or hold the employee’s job if they request an unpaid leave of absence. You can, however, choose to provide flexibility as long as you do not treat employees differently on the basis of sex and other classes protected by the EEOC. Under the Families First Coronavirus Response Act (FFCRA), certain employers may also be required to provide leave for employees due to childcare issues
- Are employers allowed to require their employees to return to work at a physical location?
In general, employers have the right to require employees to return to their physical workplace, and employees must comply. In some cases, employees may be entitled to telework if it’s considered a reasonable accommodation under the Americans with Disabilities Act (ADA). Likewise, an employee may qualify for paid family medical leave or paid sick leave under the FFCRA if they have conditions directly related to COVID-19.
- Are employers allowed to ask employees where they went if they take personal time off?
First and foremost, it’s critical that employers consult their local government’s laws and guidelines to ensure you’re in compliance with state-specific guidelines. According to the CDC, employers are allowed to ask their employees if they are returning from high-risk locations during the COVID-19 pandemic, but they are unable to ask further details about their time off.
- Which symptoms are employers allowed to ask employees about should they call in sick?
During the current pandemic, an ADA-covered employer is allowed to ask their employees if they have symptoms related to COVID-19, according to the EEOC. Any medical-related information is required to be protected and stored outside of the employee’s personnel file, under the ADA’s regulations.
- Can employers require employees to stay home if they have COVID-19-related symptoms?
Yes, according to the EEOC, employers can require employees to stay home in order to keep them separate from the rest of their workforce.
- Can employers require temperature checks as a condition of entering the physical workplace?
Currently, due to the community spread of coronavirus, the EEOC will allow employers to conduct temperature checks. Under non-pandemic circumstances, temperature checks would be a violation of the ADA because it would be considered a medical examination.
- Can employers require a doctor’s note confirming an employee is safe to return to work?
According to the EEOC, employers can require a doctor’s note due to the pandemic.
- Are employees eligible for workers’ compensation if they contract COVID-19 in the workplace?
It could be very challenging for an employee to prove that they contracted COVID-19 in the workplace, according to the Department of Labor (DOL), and infectious diseases have not historically resulted in entitlement to workers’ compensation. However, it’s important that employers continuously stay abreast of local and federal guidance, and/or consult legal counsel as this could change.
- Can employers ask employees to disclose underlying conditions that could potentially put them in the high-risk category for contracting COVID-19?
No. Under the ADA, employees are protected from being required to disclose underlying health conditions to their employers.
- Can employers require an employee who has an underlying health condition to return to work?
Employees may be eligible for “reasonable accommodations” related to disabilities under the ADA. Reasonable accommodations will vary depending upon the essential functions of the job and the specific limitations of the disability. Whether allowing an employee to telework or otherwise not return to the workplace is “reasonable” will depend upon the specific facts in each situation.
There are many unknowns about how our country and workforce will move forward in the aftermath of the pandemic. For many organizations, the resounding theme seems to be “wait and see.” The concerns that your business leaders may feel about returning your employees to the workplace while keeping them and your customers safe is not uncommon, and unfortunately, there is not a one-size-fits-all solution. You should continue to consult with your legal counsel and stay up-to-date on guidance from federal agencies such as the EEOC, OSHA, DOL, and CDC, as well as local officials, as guidance is changing rapidly.
Understanding and maintaining knowledge on regulations and laws related to the pandemic is laborious and some companies may not know what resources are available or what they should do next. Our PEO team is here to help you navigate the waters through tremulous times like these.
This material is provided for information only. It is not intended as legal or tax advice. You should consult your legal counsel or tax advisor for advice specific to your business situation.
