COVID-19: Return to Work Employer FAQs

Now that we have been sheltering in place for close to two months, most of us are eagerly waiting for life to return to “normal.” We all want our businesses to thrive and to become fully operational again. However, we know it will take some time and that we need to carefully plan our next steps. Below is a list of “Frequently Asked Questions” that may help you in this process. Please note that guidance from public authorities is constantly changing so we recommend checking the resources referenced below to make sure you have the latest information.

1. Ready to Return to Work: General Considerations

Question: What are some of the main issues I should consider when re-opening for business?

Answer: Each business will have its own unique considerations when re-opening. Retail stores may need to install plexiglass between cashiers and customers for additional protection. Car dealerships may need to implement new protocols for test-driving cars so the salesperson and customer maintain a safe distance from one another. Here is a short list that applies to most businesses:

• Avoiding Crowds: if employees generally report to work at the same time and enter at the same location, consider staggering start times. It may also be necessary to stagger breaks and end times. Staggering start times will be particularly important if employers plan to screen employees before entering the workplace.

• Floor plans: evaluate whether you need to re-arrange offices, break rooms or other spaces so that employees can maintain a safe distance from each other while at work.

• Cleaning and disinfectants: have enough cleaning supplies and disinfectants to meet the needs of your workforce. Consider installing sanitizer dispensers next to frequently touched and shared surfaces, such as: copy machines, water dispensers, timeclock systems, elevator buttons, etc. Also, schedule regular and frequent cleanings throughout the workplace, with a focus on high traffic areas.

• Notices: post all required notices in the appropriate places at your workplace. Some notices need to be posted at the entrance of the businesses while others need to be distributed to each employee.

• Policies: update your policies to address recommended safety protocols and comply with new COVID-19-related laws. All new policies should be distributed to and acknowledged by your employees. It is a good idea to post reminders about safety protocols throughout the workplace and assign a “compliance officer” to ensure protocols are being followed.

• Additional Breaks: in addition to regular rest and meal breaks, provide additional break times so employees have an opportunity to wash their hands throughout the day. Additional breaks should be included in the updated policies and distributed to employees.

2. Paycheck Protection Program

Question: What if a borrower under the Paycheck Protection Program (PPP) offers to rehire an employee, but such employee declines the offer and refuses to return to work?

Answer: The SBA issued guidance (as of May 3, 2020) that if a borrower laid off an employee, offered to rehire the same employee, but the employee declined the offer, the same shall be deemed an exemption from the CARES Act’s general limits on loan forgiveness, and the amount of loan forgiveness shall not be reduced because of such employee, provided that:

• the offer for rehire is “for the same salary/wages and same number of hours”;
• the borrower must have made a good faith, written offer to rehire, and
• the employee’s rejection of that offer must be documented by the borrower.

3. ADA/FEHA (Disabilities)

Question: Can I terminate an employee or refuse to reinstate an employee if they had COVID-19?

 Answer: The California Fair Employment and Housing Act (FEHA) prohibits employment discrimination on the basis of “physical disability” (among other characteristics). Even individuals with short-term conditions, such as COVID-19 may qualify for protection. Therefore, any adverse action against an employee who had COVID-19 may expose the employer to potential liability under the FEHA or the federal Americans with Disabilities Act. Refer to the Department of Fair Employment and Housing’s (“DFEH”) FAQs for further guidance on these issues.

Further, although employers may ask employees who are exhibiting COVID-19 symptoms to leave the workplace, employees may be entitled to use accrued paid sick leave, paid time off (PTO), vacation time, or job-protected unpaid leave under California law. See DFEH Employment Information on COVID-19 FAQs.

Question: Can I be sued for retaliation for firing or selectively bringing back certain employees?

Answer: Yes. There is a misperception that employers can selectively retain and fire employees as long as a particular employee is not infected with COVID-19 and not on a related leave.

Some employees may refuse to return to work based on a fear of contracting COVID-19 despite the absence of a specified vulnerability (i.e., a medical condition or the employee’s age) and no confirmed cases in their workplace. The Occupational Safety and Health Administration (“OSHA”) addresses general safety in the workplace and situations where employees may refuse to work. For such a refusal, employees must be in “imminent danger” that could reasonably be expected to cause death or serious physical harm. This is a fact-based inquiry.  

To reduce the risk of a wrongful termination or retaliation claim by an employee terminated for not reporting to work out of COVID-19-related fears, employers should take steps to minimize the transmission of the virus in the workplace and communicate such steps to employees. If an employer terminates an employee for refusing to appear at work, the employer should make certain to follow all proper steps, including appropriate documentation for the employee’s personnel file, the timely payment of final wages, and perhaps offering severance in exchange for a release, etc.

Question:  Are employees who are not eligible for CFRA leave entitled to an accommodation if they cannot come to work because of illness related to COVID-19?

Answer:  Employers of five or more employees are required to provide reasonable accommodations (e.g., telework, unpaid leave) to employees with disabilities unless doing so would impose an undue hardship. Whether illness related to COVID-19 rises to the level of a disability (as opposed to a typical seasonal illness such as the flu) is a fact-based determination.

Employers should also consider whether an employee is eligible for leave under FFCRA or paid sick leave (see our leave chart).

Question:  What are some suggested accommodations, and are employers entitled to a hardship exemption?

Answer:  The DFEH states that “[e]mployers should consider telework and leave as reasonable accommodations for employees with illness related to COVID-19 unless doing so imposes an undue hardship. Factors considered when deciding whether providing leave is an undue hardship include: the number of employees, the size of the employer’s budget, and the nature of the business or operation.” Employers should engage in the “interactive process” before attempting to use undue hardship as a basis for denying an accommodation. Note that Courts and the DFEH tend to interpret the “undue hardship” exemption narrowly.

The EEOC offers the following examples of potential accommodations an employer may consider:

• additional or enhanced protective gowns, masks, gloves, or other gear beyond what the employer may generally provide to employees returning to its workplace;
• additional or enhanced protective measures, such as erecting a barrier that provides separation between an employee with a disability and coworkers/the public or increasing the space between an employee with a disability and others;
• elimination or substitution of particular “marginal” functions (less critical or incidental job duties as distinguished from the “essential” functions of a particular position); and
• temporary modification of work schedules or moving the location of where one performs work.

Question:  What medical documentation should employees provide to support a request for reasonable accommodation because they are disabled by COVID-19?

Answer:  Generally, when an employee’s disability or a need for an accommodation is not apparent or unknown and if the employee requests a reasonable accommodation, employers may request reasonable medical documentation, such as a health care certification form, confirming the existence of the disability and the need for reasonable accommodation. Employers should be flexible on the timing of receiving employees’ medical documentation.

Question:  What must an employee do to request reasonable accommodation from an employer because the employee has a medical condition that the CDC states may increase the employee’s risk for severe illness from COVID-19?

Answer:  The EEOC advises that such an employee with such a medical condition should inform the employer, themselves or through or a third-party (such as the employee’s doctor), that an accommodation is needed for a reason related to a medical condition. The request for an accommodation can be made in writing or orally. After receiving a request, the employer may ask questions or seek medical documentation to help decide if the individual has a disability and if there is a reasonable accommodation, barring undue hardship, that can be provided.

Question:  I’m already allowing employees to telework. Do I still need to provide other accommodations?

Answer:  Potentially yes. If an employee with a disability needs reasonable accommodations for a telework site (e.g., ergonomic keyboard), the employer should provide that accommodation, absent undue hardship. In the event of undue hardship, the employer and employee should work together to identify possible alternative reasonable accommodations. See the EEOC’s guidance for more on this issue.

4. How to Organize the Workspace Itself/Scheduling

Question:  How can I limit exposure to COVID-19 when I reopen my business?

Answer: The CDC developed reopening guidance for cleaning and disinfecting workplaces, which is part of the larger United States Government plan for opening up America.

Per the CDC, most surfaces and objects will just need normal routine cleaning, while frequently touched surfaces and objects will need to be cleaned and then disinfected to further reduce the risk of germs on surfaces and objects. Frequently touched surfaces and objects include: light switches, doorknobs, tables, countertops, handles, desks, phones, keyboards, toilets, faucets and sinks, touch screens, and ATMs (if applicable to your workplace).

Employers should first clean the surface or object with soap and water. Then, disinfect using an EPA-approved disinfectant. If an EPA-approved disinfectant is unavailable, employers may use 1/3 cup of bleach added to 1 gallon of water (effective for up to 24 hours), or 70% alcohol solutions to disinfect.

Another way to reduce the risk of exposure is to make long-term changes to practices and procedures, such as continuing social distancing (to the extent feasible). This may include changing the layout of open space, relocating employees to empty offices, encouraging employees to continue to telework (when feasible), staggering work/break schedules, decreasing/canceling in person or staff meetings, limiting/canceling non-essential work travel, etc.

Additional steps to reduce exposure may include implementing regular health checks for employees and visitors (see Sections # 5 and 6), implementing flexible leave policies, ensuring hand hygiene supplies are accessible around the workplace, etc.

5. Non-Diagnostic COVID-19 Screening

Question:  Can I screen employees for COVID-19 symptoms before entering the workplace?

Answer:  The CDC recommends employers measure employees’ temperature and assess other COVID-19 symptoms prior to the start of work. A current list of COVID-19 symptoms can be found on the CDC’s website. If an employee has a temperature of 100.4° F or higher or displays other symptoms, the employee should be sent home. (See SECTION #8 regarding return-to-work timing.)  Since an employee will likely be considered to be under the employer’s control during the screening process, employees should clock-in to work prior to engaging in the screening process. If it is not practicable for employees to clock-in prior to screening, employers should add the time spent in the screening process to employees’ time records to compensate for that time.

6. COVID-19 Test-Taking

Question:  Can I administer a COVID-19 test to employees before allowing them to enter the workplace to determine if they have the virus?

Answer:  Under federal law, the answer is “yes” if an employee infected with the virus would pose a “direct threat” to the health of others in the workplace. California has not yet issued guidance on this. However, the DFEH has said it is OK to measure body temperature to evaluate the risk an employee may pose to others in the workplace. It is likely the federal guidance would apply to California employers. If an employer decides to test for COVID-19, the employer should ensure the test is accurate and reliable. Information about COVID-19 diagnostic tests can be found on the FDA’s website.

Question:  Where should I keep COVID-19 test results?

Answer:  All medical information about a particular employee (including temperature) must be stored separately from the employee’s personnel file to limit access to this confidential information. California employers must also establish procedures to ensure the confidentiality and protection of unauthorized use and disclosure of medical information.

7. Documents to Be Provided to Employees Upon Return

Question: Do I need to provide my employees with any documents/notices when they return to work?

Answer: Yes. If you haven’t already, you must post the Families First Coronavirus Response Act notice in a conspicuous place in the workplace. If employees telework, you may email the notice. Notices in additional language may be found here. Businesses in L.A. County should also post the Notice to Consumers in a conspicuous place. Additional notice requirements may vary based on location.

Additionally, while the L.A. County’s Social Distancing Protocol requirement may only apply to employers defined as “Essential Businesses” it is recommended to all employers who resume operations to prepare, post (at or near the entrance of your facility), and provide to employees a Social Distancing Protocol laying out the applicable safety measures.

It is also recommended to post the CDC’s poster “Stop the Spread of Germs” and update your employee handbook to include hygiene, social distancing, and flexible leave policies.

Question:  Do I need to change my sick leave/paid time off policy?

Answer: It is recommended to implement a flexible sick leave policy (e.g., remove the 90-day hold period for new hires) and clarify that sick employees must stay home when sick, or will be sent home if sick at work. If feasible, it is also recommended to adopt a policy in accordance with the FFCRA sick leave requirements or generally consider a 10-day sick leave policy for all employees.

8. What if an Employee Is, or May Be, Infected With COVID-19?

Question:  What to do if an employee reports to work sick?

Answer:  Employers should actively encourage sick employees to stay home. If an employee is exhibiting symptoms related to COVID-19 (e.g., fever, cough, shortness of breath), the sick employee should be sent home immediately. (See SECTION #9 regarding reporting-time pay). Employees who are struggling to breathe or cannot keep fluids down should seek medical attention.

If the employee’s symptoms are mild, consider an alternative work option such as teleworking. For further guidance on this topic, see Los Angeles County Department of Public Health

Question:  What to do when employees had contact with a sick employee?

Answer:  The Los Angeles County Department of Public Health recommends that employees who had close contact (closer than 6 feet for more than 10 minutes or unprotected exposure to body fluids – such as cough or sneeze or sharing a drink) with an employee with a suspected or known case of COVID-19 while that person was ill, or within 48 hours before symptoms appeared, should self-quarantine for 14-days.

Those who have not had close contact with the symptomatic employee while that employee was experiencing symptoms, or during the 48-hour period prior to the start of symptoms, can remain on the job. Remind employees to follow steps to prevent the spread of respiratory infections and promote social distancing practices (e.g., frequent handwashing, maintaining a six-foot distance from others, and disinfect frequently touched objects and workspaces).

Question:  What steps should be taken after an employee tests positive for COVID-19?

Answer:  The CDC provides two options for determining when an employee with symptoms may discontinue isolation:

“Symptom-based strategy”
An employee may discontinue isolation when:

• At least 3 days (72 hours) have passed since recovery (no fever without the use of fever-reducing medications and improvement of respiratory symptoms); and
• At least 10 days have passed since symptoms first appeared.

“Test-based strategy” (note, this strategy depends on access to and availability of ample testing supplies and capacity) An employee may discontinue isolation when:

• The employee’s fever has resolved without the use of fever-reducing medications;
• The employee’s respiratory symptoms have improved; and
• The employee tests negative on an FDA Emergency Use Authorized molecular assay for COVID-19 from at least two consecutive nasopharyngeal swab specimens collected ≥ 24 hours apart.

The CDC also provides two options for determining when an employee without symptoms may discontinue isolation:

“Time-based strategy”
An employee may discontinue isolation when:

• At least 10 days have passed since the date of their first positive COVID-19 diagnostic test, provided they remain asymptomatic.
• Note, because symptoms cannot be used to gauge where these employees are in the course of their illness, it is possible that the duration of viral shedding could be longer or shorter than 10 days after their first positive test.

“Test-based strategy” (note, this strategy depends on access to and availability of ample testing supplies and capacity)

An employee may discontinue isolation when:

• The employee tests negative on an FDA Emergency Use Authorized molecular assay for COVID-19 from at least two consecutive nasopharyngeal swab specimens collected ≥ 24 hours apart.
• Note, because of the absence of symptoms, it is not possible to gauge where these individuals are in the course of their illness. There have been reports of prolonged detection of RNA without direct correlation to viral culture.

An employer cannot disclose the identity of the sick employee to other employees in the workplace, but should inform employees of their possible exposure to COVID-19 (the tested employee may agree to share their identity). The DFEH suggests employers send an email to employees stating: “We have learned that an employee at [location] tested positive for the COVID-19 virus. The employee received positive results of this test on [date]. This email is to notify you that you have potentially been exposed to COVID-19 and you should contact your local public health department for guidance and any possible actions to take based on individual circumstances.”

The Los Angeles County Department of Public Health offers the following additional steps:

• Assess who has had “close contact” with the infected employee on the job, during breaks, or at lunch. Those individuals are at risk and should quarantine for 14 days from the time of their last close contact with the infected employee while the employee had symptoms and 48 hours before symptoms appeared. If they don’t get sick within fourteen days, the time span over which the virus generally appears, they can come back to work safely. In the meantime, they may be able to work remotely.

• Thoroughly clean and disinfect equipment and surfaces in the workplace that the employee may have touched, such as doorknobs/push bars, elevator buttons, and restroom doors. Use cleaning chemicals with EPA-registered disinfectant labels with claims against emerging viral pathogens. If another employee develops symptoms while in quarantine, they should follow the return to work guidelines noted above.

Question:  Is an employee entitled to workers’ compensation benefits if he or she tests positive for COVID-19?

Answer: Under Governor Gavin Newsom’s May 6, 2020 Executive Order, any COVID-19-related illness of an employee is presumed to arise out of and in the course of the employment for purposes of awarding workers’ compensation benefits if certain requirements are satisfied. The requirements are in Section 1 of the Order, which states:  

a. The employee tested positive for or was diagnosed with COVID 19 within 14 days after a day that the employee performed labor or services at the employee’s place of employment at the employer’s direction;

b. The day referenced in subparagraph (a) on which the employee performed labor or services at the employee’s place of employment at the employer’s direction was on or after March 19, 2020;

c. The employee’s place of employment referenced in subparagraphs (a) and (b) was not the employee’s home or residence; and

d. Where subparagraph (a) is satisfied through a diagnosis of COVID-19, the diagnosis was done by a physician who holds a physician and surgeon license issued by the California Medical Board and that diagnosis is confirmed by further testing within 30 days of the date of the diagnosis.

Question:  What to do when an employee is suspected of having COVID-19 but hasn’t been tested?

Answer:  The CDC advises that employees should notify their supervisor and stay home if they suspect they have COVID-19. If employees think they have been exposed to COVID-19, they should contact their healthcare provider.

Employers should follow the steps outlined above if an employee subsequently tests positive for COVID-19.

9. Pay Issues

Question:  Do I need to track remote employees’ hours?

Answer:  Yes. Employers must implement systems that effectively track all hours worked and meal periods for non-exempt employees. If employees cannot log work hours and breaks remotely, employers should provide a timekeeping form that employees can return on a specified basis (daily, weekly, or pay period).

Employers should also provide a copy of their meal, rest, and overtime policies to employees. Non-exempt employees should be instructed to only perform work during their regularly scheduled workday and inform managers to only communicate with non-exempt employees during their regular schedule.

Question:  Are employers required to reimburse employees for business expenses?

Answer:  Labor Code Section 2802 provides that an employer must reimburse employees for any necessary business expenses. For example, if an employee works remotely and is required to use the internet, the employer must reimburse the employee a reasonable percentage of the expense. Similarly, if an employee is required to purchase tools to perform their work (e.g., face coverings or cleaning products), the employer must either provide the tools or reimburse the employee for the costs incurred.

Question:  Can an employer reduce the pay of a non-exempt employee?

Answer:  If a non-exempt employee is employed on an “at-will” basis, an employer may reduce the employee’s pay on a prospective basis with as little notice as the prior workday. If possible, the best course of action is to make the change at the beginning of a new pay period. Within seven days of the change, employers should distribute an updated Labor Code Section 2810.5 notice to employees showing the change in pay rate (alternatively, employers may show the change on an employee’s pay stub if pay rate is the only change).

Question:  If an employee is exempt, are they entitled to a full week’s salary for work interruptions due to a shutdown of operations?

Answer:  In general, an employee is exempt if they are paid at least two times the state minimum wage and meet the duties test for the applicable exemption. With some exceptions, the law requires that employers pay an exempt employee their full weekly salary for any workweek where they perform any work.

Question:  Can an employer make a prospective reduction in pay for an exempt employee due to COVID-19 related economic downturn?

Answer:  The U.S. Department of Labor advises that an employer is not prohibited from prospectively reducing the predetermined salary amount to be paid regularly to an exempt employee during a business or economic slowdown, provided the change is bona fide and not used as a device to evade the salary basis requirements. Such a predetermined regular salary reduction, not related to the quantity or quality of work performed, will not result in loss of the exemption, as long as the employee still meets the salary test under California law (which is two times the state’s minimum wage on a salaried basis).

On the other hand, deductions from predetermined pay occasioned by day-to-day or week-to-week determinations of the operating requirements of the business may constitute impermissible deductions from the predetermined salary and would result in loss of the exemption. The difference is that the first instance involves a prospective reduction in the predetermined pay to reflect the long-term business needs, rather than a short-term, day-to-day or week-to-week deduction from the fixed salary for absences from scheduled work occasioned by the employer or its business operations.

If an employer elects to transition an exempt employee to non-exempt status for a temporary period, it is recommended to provide a memo explaining the reason for transition, time tracking and break requirements, as well as a 2810.5 notice reflecting the new rate of pay (generally determined by dividing the employee’s annual salary by 2,080.)

Question:  Is an employee entitled to compensation for reporting to work and being sent home?

Answer:  If an employee reports to work and is sent home before working a full shift, the employee must be compensated for reporting time pay, equal to half the usual shift, at least two hours, or no more than four hours.

For example, a worker who reports to work for an eight-hour shift and is sent home after only working one hour must still receive four hours of pay, one for the hour worked and three as reporting time pay so that the worker receives pay for at least half of the expected eight-hour shift. See California Department of Industrial Relations Coronavirus (COVID-19) Information FAQs on Laws Enforced by the California Labor Commissioner’s Office.

10. Time Off After the Return to Work

In response to the outbreak of COVID-19, there have been expansions of leave on the local and federal level. In addition to our summary chart that you can find here, employers are encouraged to check their own leave policies to ensure compliance.

Employees may be also entitled to leave under the following laws:

Family and Medical Leave Act/California Family Rights Act:

• Unpaid, job-protected leave that applies to employers with 50 or more employees.

Leaves pursuant to California’s Labor Code:

• Kin care allows employees to take up to half of their sick leave to care for a family member, as defined by CA Law.
• School activities leave applies to those with 25 or more employees and allows an employee to take up to 40 hours off work each year for their children’s school activities. Such leave includes to address a child care provider or school emergency.

Federal Americans with Disabilities Act/California’s Fair Employment & Housing Act

• Employees with disabilities (such as diabetes, which makes an employee medically vulnerable to COVID-19) may seek accommodations, such as telework. There may be an “undue hardship” exception (narrowly applied) only if it results in significant difficulty or expense for the employer, considering the nature and cost of the accommodation, the resources available to the employer, and the operation of the employer’s business. If an accommodation would result in an undue hardship, an employer is not required to provide it but still must consider other accommodations that do not pose an undue hardship (see Section #3 regarding ADA/FEHA).

Please reach out to a member of our Employment Practice Group if you have any questions, and visit our COVID-19 Resource Page for more information on local and federal updates regarding COVID-19.

This information provides an overview of a specific developing situation. It is not intended to be, and should not be construed as, legal advice for any particular fact or situation.