UPDATED MARCH 19, 2020
As concerns over the spread of the novel Coronavirus (COVID-19) continue to increase, employers should be wary of the various state and federal laws regarding discrimination, leaves of absence and reasonable accommodations. This article provides a general overview of leave issues that may be implicated in scenarios related to COVID-19.
As a general matter, an employee that is isolated or quarantined due to their exposure or to care for a family member affected by COVID-19, may be entitled to protected leave under the Family and Medical Leave Act (FMLA). If an employee is required to be away from work pursuant to the recommendation of a healthcare provider, or health official, or needs to be away from work to care for a family member due to COVID-19, other leave laws may also apply to the absence.
If an employer’s leave and safety strategy addressing COVID-19 requires an employee to be away from work, the employer should be cognizant of state and local laws before designating any time away from work under their policy as time taken under a specific leave law. Many state and local mandatory paid sick and safe time regulations provide benefits in public health emergencies and prohibit employers from directing employees to use these benefits.
Compliance Action Item:
Employers should review their leave policies to ensure sick leave, paid time off and other policies are consistent and flexible with state, local, and federal laws. A flexible approach to the application of paid time off policies encouraging sick employees to stay home from work is consistent with the recommendations provided by the CDC in light of COVID-19. Employers should review their current policies and practices and work with counsel to ensure legal compliance.
Family and Medical Leave Act (FMLA) Considerations in Connection to COVID-19
Employers subject to the FMLA should determine whether employees impacted by COVID-19 qualify for protected leave for their own serious health condition or that of a covered family member. Although the Department of Labor has yet to issue specific guidance on COVID-19, many associated conditions and/or treatments are recognized under the FMLA’s regulations as rising to the level of a serious health condition. In some cases, COVID-19 may require hospitalization and extended medical visits. Employers should be cognizant about designating FMLA leave for those employees that are eligible due to COVID-19 impact. For additional information about FMLA leave designation see our prior article.
On Saturday, March 14th, the U.S. House of Representatives passed the Families First Coronavirus Response Act (“Act”), covering a range of relief for Americans, including emergency Family & Medical Leave and emergency paid sick leave for certain reasons related to the coronavirus. The Act still needs to pass the Senate. The President has recently signaled support for the Act, so it is likely that some version of the Act will become law.
State and Local Leave Law Considerations and COVID-19
Employers should be mindful of any state or local leave laws that are applicable to any eligible employees suffering from COVID-19 or taking leave to care for a family member or other qualifying dependent. The following are a few notable state-based leave provisions that may be implicated due to COVID-19 related illness:
- California Paid Family Leave: provides benefits to individuals who need to take time off work to care for a seriously ill child, parent, parent-in-law, grandparent, grandchild, sibling, spouse, or registered domestic partner.
- San Francisco Paid Sick Leave Ordinance: provides paid sick leave to all employees (including temporary and part-time employees) who perform work in San Francisco. Employees may use paid sick leave when they or a family member are ill, injured, or for the purpose of receiving medical care (including preventive care), treatment, diagnosis, or other medical reason.
- New York State Paid Family Leave: covered employees have the right to use safe and sick leave for the care and treatment of themselves or a family member. Additional information about New York Paid Family Leave is available here.
- New Jersey Family Leave Insurance: allows employees to use earned sick leave due to a public health emergency or to care for a child whose school or care provider is closed.
- Washington State Paid Family & Medical Leave: the Department of Labor & Industries takes the position that an employee can never be required to use paid sick and safe time under Washington law and instead must be allowed to choose whether to use this benefit while absent from work.
American with Disabilities Act (ADA) Considerations in Connection to COVID-19
The ADA prohibits employers (with 15 or more employees) from discriminating against qualified individuals with disabilities. The ADA also prohibits discrimination against perceived disabilities or association with those with actual or perceived disabilities. Contraction of COVID-19 may or may not implicate ADA protections depending on whether an employee with COVID-19 rises to the level of a disability under the ADA. Leave or telecommuting may be considered an accommodation under those circumstances under the ADA.
As a general matter, employers are permitted to make disability-related inquiries and require medical examinations only if they are job related and consistent with business necessity. Employers should be mindful of asking employees about medical conditions in light of the COVID-19 outbreak and follow existing guidance around inquiries about an employee’s disability status associated with COVID-19.
At this time, COVID-19 has been deemed a pandemic by the CDC and World Health Organization, and Equal Employment Opportunity Commission (EEOC) has recently indicated that their existing guidance can help employers implement strategies to navigate the impact of COVID-19. The EEOC previously released guidance for preparedness in the workplace during a pandemic, advising that in some circumstances, such as at the direction of the CDC or state/local public health authorities, temperature checks of current employees may be permitted in connection with severe conditions posing a direct threat. Direct threat under the ADA is defined as “significant risk of substantial harm to the health and safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” The EEOC has updated the guidance as of March 19, 2020 to address examples and information regarding COVID-19. Please refer to the Q&A section of the guidance for availability of permissible practices under the ADA where COVID-19 is widespread in the community and has become severe enough to pose a direct threat as assessed by public health authorities.
The EEOC further advises that, during a pandemic, employers should rely on the latest CDC and state or local public health assessments, and are expected to make their best efforts in staying up to date in order to make reasonable assessments of conditions that may impact their workplaces. As always, it is recommended employers speak with employment law counsel to assess potential risk or in order to seek direct legal advice.
Return to Work Policy Considerations in Connection to COVID-19
Employers should apply their return-to-work policies consistently for those employees that miss work due to COVID-19 related illness. Employers should not condition an employee’s return to work on a favorable COVID-19 testing result; however, employers may continue to enforce policies requiring documentation from a health provider clearing an employee’s return to work, when applicable and as consistent with law. The CDC has suggested employer flexibility with respect to requiring documentation to validate illness or return to work given that health care provider offices and medical facilities can be over extended and not able to provide documentation in a timely manner.
Privacy Considerations in Connection to COVID-19
Under many state sick leave laws, employees cannot be required to disclose personal health information. Thus, employers must carefully manage what they ask employees about their leave. Please see our article discussing additional privacy related concerns (such as HIPAA).
Sequoia Consulting Group Clients Only: Employers working with Sequoia Consulting Group have free access to ThinkHR and employers may reach their HR professionals via email or phone to learn more about constructing successful leave policies.
CDC Coronavirus Interim Guidance for Employers
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