Questions and Answers (Updated March 26, 2020)

March 19, 2020

The Phelps Labor & Employment (L&E) Group is actively monitoring executive and legislative responses to many employment-related issues facing employers across the country. Below are some Frequently Asked Questions (FAQs) with Updates related to employee leave and time off of work. Other resources are available through Phelps COVID-19: Client Resource Portal, which we are continuing to update with significant developments. If you have specific questions related to your workforce, please contact any member of our L&E team.

Can an employer require an employee who is exhibiting COVID-19 symptoms to stay home and use paid time off (PTO)?

Before requiring an employee to use his/her PTO, an employer should consider whether the Families First Coronavirus Response Act (FFCRA), with a new effective date of April, 2020, applies. Under the FFCRA, an employer may not require employees to use other paid leave before they use Emergency Sick Leave under the Act. Some state or local paid sick leave laws also restrict an employer’s ability to require use of PTO if the employee is absent due to an illness. For more information regarding the FFCRA  and its applicability, please visit COVID-19: Client Resource Portal.

If paid sick leave under these laws is not applicable, then, yes, an employer can require an employee who is exhibiting COVID-19 symptoms to stay home and use his/her accrued PTO until the employee is symptom free, provided required use of PTO is consistent with the employer’s policies. The same is true for an employee who is exposed to someone who has or is presumed to have COVID-19. In the case of exposure, an employer may require the employee to remain home for the maximum incubation period of COVID-19, which is currently estimated to be approximately 14 days.

As a practical matter, employers should consider payment for time off even if an employee has exhausted PTO, as this may discourage employees from hiding symptoms or delaying reporting symptoms or possible exposure.

Can an employer require its employees to stay home and use PTO to “flatten the curve?”

Many states and local governments have issued executive Shelter-In or Stay-at-Home orders. Even in jurisdictions without such orders, an employer may require its employees to stay home and use PTO so long as the required leave is consistently applied. As noted above, an employer should consider the application of the FFCRA, as well as any other state or local paid sick leave laws. Employers should also consider that any leave given prior to April 1, 2020, the effective date of the FFCRA, probably will not count toward eligible leave, or allow for an employer credit, under the FFCRA. Additionally, if an employer decides to send an employee home in an effort to “flatten the curve” and without pay, the employer should carefully evaluate the applicable state’s unemployment compensation laws, as state authorities are actively making changes in response to COVID-19.

Can employers require employees to bring a doctor’s note to return to work after illness?

Yes, when employees miss work due to illness, employers may generally require employees to bring a doctor’s note confirming they can return to work. However, because of the high demand for medical care now, employees may have a difficult time seeing a doctor in a timely manner. Requiring an employee to see a doctor may have unintended consequences. For these reasons, the CDC is currently advising against requiring a doctor’s note to support an absence for suspected COVID-19. However, employers may ask employees who call in sick whether they are experiencing COVID-19 symptoms (e.g., fever, chills, cough, shortness of breath, or sore throat) and may also ask whether anyone who lives with the employee does or might have COVID-19. Additionally, in its updated guidance, the EEOC suggested other alternatives to fitness for duty certifications for non-healthcare workers, such as reliance on local clinics to provide a form, a stamp or an e-mail.

The FFCRA does not specifically grant an employer the right to require medical certification or certain documentation. However, under the FFCRA, an employer may, after the first workday of paid sick time, “require the employee to follow reasonable notice procedures in order to continue receiving such paid sick time.”

Can employers take the temperature of employees returning to work?

Normally taking the temperature of an employee or an applicant would be considered an overly broad medical examination and generally not permissible under ADA. However, per its updated guidance on March 18, the EEOC states employers may measure employees’ body temperature, because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions. The EEOC advises that employers should be aware that some people with COVID-19 do not have a fever.

What should an employer consider in deciding to furlough its employees?

From a legal, business, and morale standpoint, the decision to furlough employees – reducing the days or weeks that an employee may work – is a difficult one, but it may be a strategic option to avoid lay-offs. If an employer has elected not to conduct a company-wide furlough, an employer should select non-discriminatory determinants for identifying employees or groups of employees subject to the furlough and should apply those standards uniformly. It is generally advisable to document those factors and the reason for the furlough.

Employers may also seek volunteers to take time off. With a voluntary furlough, employers are only required to pay non-exempt employees for actual hours worked, if any. If an exempt employee volunteers to take the day(s) off for personal reasons, other than sickness or disability, salary deductions may be made for one or more full days of missed work. Employers with fewer than 500 employees should also consider whether employee leave covered under the FFRCA may impact the workforce and alleviate the need for a furlough.

Furloughs are generally considered short-term solutions. For employees who are not at-will or those subject to collective bargaining agreements, an employer may need to negotiate certain terms and conditions and should carefully review those agreements with counsel. Unless the size and length of time of a furlough triggers notice requirements under the federal Worker Adjustment and Retraining Notification Act (WARN Act) or state mini-WARN Acts, an employer is not required to provide advance notice. However, reasonable notice is recommended, and employers should consult with counsel as to whether their jurisdictions requires “reporting time pay,” “predictability pay” if substantial notice is not provided or required flexible work arrangements.

Additionally, an employer should clearly define expectations of employees during the furlough. Under the federal Fair Labor Standards Act (FLSA), except with completely voluntary furloughs, an exempt salary must be paid “free and clear” for any week in which the employee performs any work without regard to the number of days or hours worked. Therefore, simply reducing an exempt employee’s hours during a furlough or allowing the exempt employee to work occasionally is not permissible. However, there is no requirement that the predetermined salary be paid if the employee performs no work for an entire workweek. Therefore, compliance with the FLSA exempt status is safest when employers furlough exempt employees on at least a weekly basis and prohibit work by the exempt employee during the furlough. To ensure the employee’s exempt status is not compromised, this assessment should be determined on a case-by-case basis with counsel. Generally, non-exempt employees must be paid for all hours worked (even “furloughed’). Employers should generally consult guidance and consult counsel about specific issues of the employer.

Employers should provide written notice to employees of which benefits, if any, will continue during the furlough, including medical and dental, 401k contributions, accrual of PTO or other leave benefits, and should confirm continued eligibility with the benefit carrier or administrator before providing such notice to its employees. Depending on the state, employees may also be eligible for unemployment benefits, even if the furlough simply involves a reduction of hours.