Answers to Your COVID-19 Employment Law Questions

The multitude of new and updated paid leave laws in response to COVID-19 has created plenty of questions for HR, benefits, and compliance teams.

Our recent webinar, Paid Leave in the Time of COVID-19, prompted several questions about implementing the various new laws, from the Families First Coronavirus Response Act (FFCRA) to state-level laws in places like California.

Below, you’ll find the questions posed during the webinar, along with answers from Jana Bjorklund, GovDocs’ Senior Counsel and Director, Employment Law and Compliance.

HR Manager: If an employee travels to a quarantined state and returns to be quarantined, does he/she apply for FFCRA?

Bjorklund: If an employee needs to be quarantined because of a local quarantine, or having to be quarantined due to travelling in a travel advisory area, they would generally qualify to apply for FFCRA paid sick leave.

Under the FFCRA, a federal, state, or local quarantine or isolation order includes quarantine or isolation orders (as well as shelter-in-place or stay-at-home orders) issued by any federal, state, or local government authority that cause you to be unable to work (or to telework) qualifies an individual for paid sick leave under the FFCRA.

HR Generalist: What kind of documentation (if any) can you ask for if an employee needs emergency FFCRA leave?

Bjorklund: If your employee requests leave to self-quarantine based on the advice of a health care provider or to care for an individual who is self-quarantining based on such advice, you should   document the name of the health care provider who gave the advice.

If your employee requests leave to care for his or her child whose school or place of care is closed, or childcare provider is unavailable, you must also document:

• The name of the child being cared for
• The name of the school, place of care or childcare provider that has closed or become unavailable
• A statement from the employee that no other suitable person is available to care for the child

Depending on the circumstances, testing and a “fitness to return to work” certification may be necessary, particularly for employees who have been exposed to COVID-19 and are exhibiting symptoms, or who have been diagnosed with COVID-19.

In its March 17, 2020, guidance, the Equal Employment Opportunity Commission (EEOC) provided that employers may require return to work certification in relation to the COVID-19 pandemic. However, because doctors and other healthcare professionals are extremely busy during and immediately after a pandemic outbreak, alternative approaches may be necessary, such as reliance on local clinics to provide a form, a stamp or an email to certify that an individual may return to work.

If an employer requires an employee to obtain a medical certification or test, state law may require the employer to reimburse the employee for these costs. The employer also may be required to compensate non-exempt employees for their time spent obtaining the certification. For certain workplace exposures (e.g., bloodborne pathogen exposure), the employer would be required to pay for the cost of testing under OSHA regulations. Employers should contact counsel to discuss their particular situation and jurisdiction.

HR Manager: What if the employee has unlimited PTO?

Bjorklund: If an employee has unlimited PTO under the employer’s policy, you will need to look to your policy and practices as to how you have applied the unlimited PTO under your policy in the past to determine coverage under COVID-19 circumstances.

For example, how do you handle your unlimited PTO policy for employees who are out on unpaid Family Medical Leave Act (FMLA) long periods of time?

Benefits Program Manager: The supplemental paid leave for California — if an employee has already taken 80 hours of COVID-19 pay, does this employee have an additional sick paid leave? (We have more than 500 employees.)

Bjorklund: Supplemental paid leave required in California is in addition to any other paid sick leave an employee may be entitled to through their employment. This law became effective Sept. 9, 2020. If an employee took sick pay for COVID-related reasons prior to Sept. 9, 2020, under the employer’s sick leave policy or PTO, the employee is still entitled to the 80 hours of paid sick leave for COVID-related reasons under California’s supplemental paid sick leave law.

Keep in mind, the employee may not be eligible for additional pay, but you should also look to see if the employee would be eligible for job-protected unpaid leave under the FMLA.

Benefits Consultant: The county regulations in California have the stipulation they are applicable to employers in unincorporated areas of the county, so the cities in the county are not impacted. Is this a correct assessment?

Bjorklund: Correct. The California counties whose COVID-19 paid sick leave requirements apply only to unincorporated areas of the county do not apply to employers located in the incorporated sections of the county.

HR Manager: I have an employee who was out for about three weeks because potential COVID-19. But after testing, all his family was positive except for him. The doctor placed him off work until today. He took three tests, all negative. However, the issue is that he is bothered that he only gets 80 hours and not more pay. Is there more pay available?

Bjorklund: If your employees are eligible under the FFCRA, employees are only entitled to 80 hours of paid sick leave for COVID-19-related reasons. In addition to FFCRA leave, he would be eligible for any PTO, vacation, or sick leave under your employer policies if he hadn’t exhausted any of that time. There would not be additional leave under the FFCRA for him with these circumstances, though.

HR Manager: If an employee has to quarantine due an exposed family member, is this paid under FFCRA?

Bjorklund: An employee who is quarantined and cannot work remotely is only eligible for paid sick leave under the FFCRA if they are quarantined under advice from a healthcare provider or a quarantine or isolation order from federal, state, or local government authority. This includes any shelter-in-place or stay-at-home orders issued by any federal, state, or local government authority. However, the employee must be unable to work remotely in order to be eligible for paid sick leave.

HR Manager: Can we require an employee to take PTO due to self-quarantine for an exposed family member?

Bjorklund: If your company determines, for the safety of its employees, it wants to have employees self-quarantine due to exposed family members, you should make sure to apply this for all employees similarly situated.

The employee would not be eligible under FFCRA for this purpose.

If the employee could not work remotely during this self-quarantine, whether you can require they take their unused PTO for this purpose would depend on state law and your policies. We would suggest you partner with your local counsel to obtain legal advice on this specific situation.

Director of Administration: I thought California did cover for school closures.

Bjorklund: Under the California Supplemental COVID-19 Paid Sick Leave, there are specific eligible reasons for leave.

The worker must be unable to work due to one of the following reasons:

• The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19
• The employee is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19
• The employee is prohibited from working by the employee’s hiring entity due to health concerns related to the potential transmission of COVID-19

School closures are not covered under the CA Supplemental COVID-19 Paid Sick Leave Law.

Senior Benefits Associate: How do we find what state/jurisdictions require certain business expenses for home offices are covered?

Bjorklund: California and Illinois have statutes regarding reimbursement of business expenses for home offices. There may be more. You’d need to have it researched to capture all jurisdictions that have such a law.

Benefits Administrator: For employers in New York City who have the mandatory NYC five days, how does the state law work? Is this in addition to or do they work in tandem so there isn’t double dipping?

Bjorklund: If you are referring to the New York City paid sick leave law that requires employees receive 40 hours or five days paid sick leave beginning on September 30, 2020, this paid sick leave can be used for any illness.

The New York State COVID-19 Paid Sick Leave Law, which requires paid sick leave to employees based on the size of the employer, is in addition to any local sick leave laws like the NYC paid sick leave law.   Employees are entitled to both, although you should keep in mind the COVID-19 paid sick leave can only be taken for COVID-19-related reasons.

Head of HR, North America: Can employees who have been exposed to COVID-19 return to the workplace if they tested negative?

Bjorklund: If an employee who has been exposed to COVID-19 subsequently tests negative for COVID-19 before the required quarantine timeline recommended by the Centers for Disease Control and Prevention (CDC), he or she may return to work if you determine that it is safe for them to do so.

You should carefully decide whether you want to shorten any CDC guidance regarding quarantine time in an exposure situation. Doing so may expose your company to liability if the employee subsequently tests positive and other employees in the workplace are exposed and/or contract COVID-19 as a result.

Benefits Manager: If an employee typically works in a location that has a paid sick leave law and travels and works in another state/city that does not and gets sick while on site would they be eligible for the paid sick leave?

Bjorklund: Generally, if an employee regularly works in a jurisdiction that has a paid sick leave law, they would be entitled to sick leave even if they travel to another jurisdiction and is sick while on site in another location. What you need to determine is whether the employee’s regular place of work has changed to this new “site.”

Director of HR: Are we able to require a return to work note from a doctor or the department of health with date able to return? We have this in our current leave policy and would like to keep it consistent with COVID-19 returns, as well.

Bjorklund: Depending on the circumstances, testing and a fitness to return to work certification may be necessary, particularly for employees who have been exposed to COVID-19 and are exhibiting symptoms, or who have been diagnosed with COVID-19.

In its March 17, 2020, guidance, the EEOC provided that employers may require employees provide a return to work certification in relation to the COVID-19 pandemic. However, because doctors and other healthcare professionals are extremely busy during and immediately after a pandemic outbreak, alternative approaches may be necessary, such as reliance on local clinics to provide a form, a stamp or an e-mail to certify that an individual may return to work.

If an employer requires an employee to obtain a medical certification or test, state law may require the employer to reimburse the employee for these costs. The employer also may be required to compensate non-exempt employees for their time spent obtaining the certification. For certain workplace exposures (e.g., bloodborne pathogen exposure), the employer would be required to pay for the cost of testing under OSHA regulations. You should consider consulting with counsel to discuss your particular situation and jurisdiction.

This Employment Law News blog is intended for market awareness only, it is not to be used for legal advice or counsel.