In this guidance, legal experts at Sidley address frequently asked questions from employers across industries in light of the continuing COVID-19 crisis. They have attempted to provide advice for employers in all different stages of the COVID-19 crisis and recognize that some advice will not apply to all employers, particularly depending on what state and local orders are (or are not) in place.
The information below is up-to-date as of March 20. This guidance applies only to U.S. employment law obligations. As the situation continues to evolve, we will continue to update our guidance as appropriate. As additional developments occur, please be sure to check Sidley’s COVID-19 Resource Center page.
We note that there are legislative developments in states and municipalities which impact each of these questions. We are closely monitoring these developments. Because of these frequent developments, and the need to adapt the general guidance below to specific circumstances, employers should consult counsel regarding specific circumstances.
At a general level, the legal rules and guidance we summarize below at a high and general level should not be applied in a manner that would prevent employers from taking reasonable, common-sense steps to protect the health and safety of employees, customers, vendors and their communities. There are many nuances and fact-specific elements that make individualized legal counsel on these questions of critical importance.
What should employers be telling all employees?
We appreciate that individual employers communicate differently with their employees. At a minimum, it is important to be transparent with employees about plans for addressing COVID-19 risks. If they have not already, employers should inform their employees about the symptoms of COVID-19, based on guidance from public health officials, and tell employees that they should not come to work if they have any of these symptoms (at least that are not explained by some other condition, such as a runny nose due to seasonal allergies).
Inform employees that CDC guidance notes that age and underlying health conditions can put some people at higher risk of serious illness. Explain that staying home when they have these symptoms prevents the spread of the virus and minimizes exposing co-workers to a serious chance of illness, and is also required by law in certain jurisdictions. Employers have been taking other proactive steps to protect their workplaces, including increasing routine cleanings — particularly in high-traffic or common areas — spacing workstations, increasing remote-work capabilities and modifying visitor policies. Share advice from public health authorities such as the CDC about handwashing, reporting of illness and reporting travel.
Now is a good time to remind employees of any applicable leave policies (paid or unpaid) and telecommuting or remote work policies. Additionally, certain employers should inform employees of their right to the paid leave provided under the Families First Coronavirus Response Act (the Act) as well as recently enacted state and local laws expanding paid sick leave. Covered employers should also ensure compliance with the Families First Act’s posting requirement. Find additional information about business obligations under the Act here.
Because requirements at the federal, state and local level are constantly changing, employers should monitor these developments and should update communications regularly. The CDC is changing its recommendations in various locations frequently. For example, for some counties, the CDC has recommended daily health screenings. Check the CDC website before taking any such action.
What is the impact of new COVID-19-related work from home and remote hire policies on the on-boarding process for new hires?
Under the I-9 rules, employers must review original identity and work authorization documents for every new hire in the physical presence of the employee within 3 days of the start of work. In light of the current national emergency, the agency has announced that it will defer the physical presence requirement associated with the I-9 and permit employers to comply with the process using remote technology. This option is only available to employers that have instituted remote work arrangements. For I-9s executed during this time, employers will be required to conduct physical inspection of the original documents after normal operations resume.
Given the border closings, travel restrictions and immigration agency closures, what are the special considerations for employers with foreign national employees? At this time, U.S. Citizenship and Immigration Services (USCIS) has suspended all in-person interviews, including adjustment of status interviews and biometrics appointments in the U.S., and further service disruptions are likely to occur. The Department of State has suspended all routine visa services at U.S. consulates abroad. In the current situation, employees who are foreign nationals have significant new restrictions on their travel, their ability to obtain visas and travel documents, and other considerations. Government operations issues such as the closure of foreign consulates will require additional advance planning to ensure minimal disruption in work.
Depending on the employee’s visa classification, there may be special compliance implications to the employer related to work from home policies, workplace office closures, work stoppages and other consequences of disrupted business activity.
Can employers tell employees with symptoms to stay home?
Yes. Employers can and should continue to tell employees that if they have a cough, fever, runny nose or other cold or flu-like symptoms, they should stay at home and not risk exposing others to illness. In localities such as Chicago, employees are required by public health order to remain home if they display any symptoms of COVID-19. Employers who use staffing through agencies should advise their vendors that their employees who are ill or have these symptoms should not come to the office either. In some states, wage and hour laws may be implicated where employees who report to work are sent home.
Can employers require employees who are “high-risk” to stay home?
Generally no, this is not permissible under the Americans with Disabilities Act (ADA) absent a directive from CDC authorities that employers should take such measures. The Equal Employment Opportunity Commission (EEOC) has represented that the ADA does not prohibit employers from following CDC guidance. Regardless, employers can (and should) inform all employees that some people, such as older adults and those with chronic medical conditions, may be at higher risk for severe illness.
To the extent possible, it is important for employers to treat employees equally and apply policies non-discriminatorily, both during the pandemic and when the crisis is over and the workplace returns to normal. If employers obtain any confidential medical information, they will need to keep it confidential.
What should employers do when employees say they are experiencing otherwise undiagnosed symptoms of COVID-19 or have been exposed to someone who has COVID-19?
The employee should be sent home or told to stay home and the employer should, as a general practice, take all appropriate steps to, among other things, determine with whom they have worked in close proximity in the last 14 days and notify these persons of the possible exposure without identifying the employee. Individual facts and circumstances, as well as applicable laws and considerations, will vary, and thus we recommend that employers appropriately consult counsel prior to taking action.
Employers may also wish to send some or all of those employees home for 14 days, which could include the entire workforce. The CDC has released a risk-assessment for individuals who have been exposed to or are experiencing symptoms of COVID-19 which can be shared with impacted employees and could aid the employer in determining which employees should be sent home.
What if the employee does not self-report but the employer notices the employee exhibiting symptoms of COVID-19?
The employee need not self-report for the employer to send an employee exhibiting symptoms home. As discussed above, employers should send the employee home and take all appropriate steps to inform other employees of potential exposure without disclosing the identity of the affected employee.
Can employers measure an employee’s body temperature to determine if they have a fever?
Yes, recent EEOC guidance states that employers may measure an employee’s body temperature at this time. As of March 20, the CDC has recommended regular health screenings of temperature and respiratory symptom screening upon arrival each day in Seattle, New Rochelle, and Santa Clara. Employers must exercise care with respect to any such temperature readings because those are considered medical records and there are legal restrictions that go along with such records.
Employers should note that employees without a fever may still be carriers for COVID-19. Wage and hour laws may also require employers to pay employees for “waiting time” spent to be tested, even if the employee is sent home due to fever. With any new form of information collection undertaken as part of COVID-19 response efforts, employers should consider legal compliance obligations related to providing employees appropriate notice of the information collection.
What should an employer do if an employee refuses to come to work though they are not ill and have not been exposed?
Employers may not terminate employees for taking job-protected leave under the Family and Medical Leave Act (FMLA) or the newly-passed Families First Coronavirus Response Act. While generally employees do not have the right to refuse to come to work unless they believe they are in imminent danger, it may be advisable to allow employees to use sick leave and other paid time off as well as allow remote work where possible.
As the threat of COVID-19 grows, employees – particularly those at high risk of developing complications – are more likely to successfully assert their right to refuse to come into work. In cities such as Chicago, employees have a public health mandate to refuse to come to work if they display any symptoms of COVID-19. Employers may also want to consider allowing employees to go into the negative in their sick leave bank. These options may or may not be feasible for employers depending on the nature of their business. Allowing flexibility may engender goodwill with your employees.
What are employers’ obligations toward employees who are out sick or home due to office closure?
Generally, employees who are not working are not entitled to wages under federal law. However, new federal legislation provides 10 days of paid leave for eligible employees of covered employers to take for certain COVID-19 related reasons, including for employees who have already exhausted previously-offered paid leave. Employees of covered employers who are taking leave due to a child’s school closing or lack of childcare are also entitled to partially paid leave for up to 10 weeks.
Additionally, state laws may impose payment obligations. As discussed below, places including New York and San Francisco have passed COVID-19 specific paid leave bills, and states including California and cities including Chicago already required employers to provide paid sick leave. Other state and local governments are rapidly enacting COVID-19-specific legislation regarding employers and employees, and employers should stay alert to these changes to the extent possible.
Employees who report to work and then are sent home under certain circumstances may be entitled to partial pay. In New York City, employers must allow employees to use earned sick time to care for children if schools are closed due to an emergency declaration. Employees who perform any work — whether in the office or from a remote site or home — are entitled to pay.
Employers should be especially careful with exempt employees, who must be paid their salary for the entire workweek if they do any work during the workweek.
Can employees use sick leave or other time off?
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 Act to care for a child if the child’s school or place of care has been closed, or the child’s care provider is unavailable, due to COVID-19.
States and cities, including New York and San Francisco, 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, 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.
What happens if an employer is ordered to close its business, or citizens are ordered to shelter in place (and therefore cannot come to work)?
This is one of the fastest evolving areas for employers. Over the past few days, cities and counties, such as San Francisco, have issued “Shelter in Place” orders with specific requirements for businesses and with varying degrees of restriction. Media outlets report that some form of a “shelter in place” order may be under consideration for New York City and Chicago.
Statewide measures are coming as well: the State of California recently announced a “stay at home” order and identified 16 critical infrastructure sectors that will continue to operate during this crisis and the State of Pennsylvania has ordered the physical closure of all “non-life sustaining businesses.” The impact of orders to close a business or for citizens to shelter in place/stay at home will be unique to every business. Please see our Sidley Update on the Northern California Shelter in Place orders, and contact a member of the Sidley team for additional guidance.
Can an employer temporarily or permanently lay off employees in response to an order to close a business?
The short answer is yes. However, depending on the number of employees impacted, such an action would typically trigger Federal WARN Act protections and equivalent state acts. It remains unseen how this will play out in the context of Shelter in Place orders, or if additional states will follow California’s lead (see this Sidley Update) and announce that COVID-19 related layoffs will not trigger full state WARN protections. Employers forced to lay off employees should consult counsel to ensure compliance with WARN and continue to monitor this area for change.
Can employers require employees to self-report if they have COVID-19?
While the answer to this question clearly would have been “no” a few weeks ago, the answer to this question now varies with state and local laws and the continuing guidance of the CDC. Employers should seek up to the minute guidance on this issue. Employers must continue to tell employees that if they are exhibiting symptoms of COVID-19, they must not come to work or go home (if at work already), and should self-quarantine and call a health care practitioner for additional guidance.
Can employers require employees to report contact with an infected person?
Yes. Generally, employers can ask employees if they believe they have been exposed to COVID-19 as exposure is not a medical condition. Employers should exercise care in doing so, as employers will want to avoid claims that any employee was subject to discrimination or retaliation based on an employer’s knowledge of such exposure and other laws may require steps in advance to ensure appropriate notice to employees.
Should an employer become aware that an employee has been exposed to COVID-19, as discussed above, the employer may need to take other steps, including sending the employee home and notifying those who were in close contact with the employee of potential exposures without disclosing the employee’s identity.
Can employers require employees to report personal travel?
In all states and the District of Columbia, an employer may inquire if an employee has traveled to any locations identified by the CDC as a Level 3 risk area. Additionally, employers may ask employees if they have traveled to any areas where state or local public health officials recommend that visitors self-quarantine after visiting. However, an employer should not require employees to report personal travel to any non-affected areas or other forms of travel.
As of March 20, the countries at Level 3 risk are China, Iran, South Korea, Malaysia, the United Kingdom (including England, Scotland, Wales, and Northern Ireland), Ireland, and most of Europe. The CDC has also put a Level 3 Warning on all cruise travel. The CDC is regularly updating its website, so employers should check periodically for updates. Employers should consider obligations to provide appropriate notice to employees regarding the collection of this information.
How should companies handle possible issues around discrimination/harassment based on disability or race/national origin perceived to be affiliated with an affected area?
Employers have a duty to protect their employees from discriminatory or retaliatory behavior by other employees if they are suspected to have COVID-19 or have self-reported. Where COVID-19-related rumors directed at ethnicities arise, employers should consult their company anti-discrimination and anti-harassment policies and address conduct that violates such policies.
What considerations should employers take into account when seeking to voluntarily report to public health authorities cases of an employee’s possible or confirmed COVID-19 diagnosis?
Because state laws vary, employers seeking to report to public health authorities should consider state law on how to do so. Many companies have already clarified in privacy policies or other statements that they may disclose personal information to governmental authorities or other third parties where required by law or otherwise to protect rights, property, interests or safety.
Employers should take privacy considerations into account in any reporting to ensure they are meeting privacy or data protection law internal compliance requirements and appropriately protecting employees’ sensitive personal information.
Can employers require medical certification before an employee returns to work after a COVID-19 diagnosis?
Generally, employers may ask for a doctor’s note if it is the employer’s practice to require certification after an employee’s absence due to illness. However, it is important to review individual state and local laws, as some states and cities limit requiring a doctor’s note by the number of days an employee is out.
Some states and cities limit an employer’s ability to ask for a health care provider’s certification or impose other privacy-related obligations or restrictions. For example, San Francisco recently amended its Paid Sick Leave Ordinance to prevent employers from requiring a doctor’s note to verify an employee’s use of the Ordinance’s leave while the COVID-19 Local Health Emergency continues. Practically speaking, even if certification is allowed, doctors and other healthcare practitioners may be too busy to provide it, and public health officials in some states and the CDC have asked employers to relax their policies on this issue.
Employers may want to consider other approaches, such as relying on a local clinic to provide a form, stamp or email to certify an employee as fit.
Kate Roberts is the co-chair of Sidley’s Labor, Employment and Immigration group and a partner in Sidley’s Los Angeles office. She also serves on the firm’s COVID-19 task force. Marketa Lindt works with U.S. and multinational corporations to implement efficient business immigration visa programs to best attract and retain foreign national talent. Marketa also leads Sidley’s I-9 compliance practice. Kate Heinzelman is a member of Sidley’s Privacy and Cybersecurity, Healthcare and Commercial Litigation groups. Contact information for the Sidley COVID-19 Task Force can be found here.