Q. Is an employer required to inform its employees if an employee contracts COVID-19? If so, will the employer be in violation of any medical privacy laws?
A. An employer can appropriately disclose that someone in the workplace has been exposed to Coronavirus, but should avoid disclosing the identity of that employee to meet their obligations under laws like the Americans with Disabilities Act (ADA).
Q. Can an employer perform medical tests on its employees to determine if said employee has the virus?
A. Generally, the ADA prohibits mandatory medical examinations of current employees, including taking their temperatures, unless the employer can show this is necessary to respond to a “direct threat.” The EEOC (Equal Employment Opportunity Commission) issued guidelines in 2009 about pandemic preparedness, in which the EEOC cautioned employers that even a pandemic does not necessarily justify medical examinations. However, the CDC (Centers for Disease Control and Prevention) now recommends that employers in certain geographical areas start checking employees’ temperatures, employers in those places likely now would be able to justify it. This is, however, a fact-intensive inquiry.
Q. Can an employer send an employee who “appears sick” home? UPDATED MARCH 23, 2020
A. According to the EEOC guidance, if the employee’s symptoms are not worse than those of the seasonal flu, the employee is not “disabled” under the ADA, so the ADA would not apply. Alternatively, if the employee has very serious symptoms, the employer may be able to send the employee home and not violate the ADA under the exception for employees who pose a “direct threat.” Here, the symptoms of Coronavirus largely mimic those of the flu and many states and cities have laws that are more narrowly tailored concerning “disabilities” which must be considered. The EEOC has made it clear that advising workers to go home is acceptable and not considered disability-related.
Q. If an employee gets the virus, must an employer hold the employee’s job?
A. On March 17, 2020, Governor Andrew M. Cuomo announced a three-way agreement with the Legislature on a bill guaranteeing job protection and pay for New Yorkers who have been quarantined as a result of novel coronavirus, or COVID-19. The bill also includes the permanent comprehensive paid sick leave policy first advanced in the Governor’s FY 2021 Executive Budget proposal.
This follows the Governor Cuomo’s announcement last week that the state will guarantee two full weeks of paid leave for all state workers who are subject to a mandatory or precautionary order of quarantine as a result of the novel coronavirus.
Q. Are there any resources employers can access to obtain information and updated guidance?
A. Yes. Below are some helpful links for employers and employees. Also, if you have any questions or need any guidance, please call Cynthia Augello at 631-693-6399 or email her at [email protected]
Guidance from OSHA Guidance can be found here: https://www.osha.gov/Publications/OSHA3990.pdf.
Guidance from the DOL concerning the FMLA and ADA can be found here: https://www.dol.gov/agencies/whd/fmla/pandemic.
The NYS Interim Guidance can be found here: https://ocfs.ny.gov/main/news/2020/COVID-2020Mar11-Interim-Guidance-Employee-Risk-Factors.pdf.
The NYC Guidance can be found here: https://www1.nyc.gov/assets/doh/downloads/pdf/imm/novel-coronavirus-faq-for-businesses.pdf.
.Q. Can an employer require an employee to use his/her vacation time/other paid time off for a COVID-19 related absence? UPDATED MARCH 23, 2020
A. Yes, subject to (a) the provisions of the employer’s current vacation time, paid time off, and other applicable policies, and (b) any state laws (e.g., implied contract of employment) restricting an employer’s ability to interpret or amend those policies. Employers with fewer than 500 employees should review obligations under the “Families First Coronavirus Response Act”
Q. Under what circumstances is an employee entitled to the enhanced FMLA? ADDED MARCH 23, 2020
A. Covered employers must provide 12 weeks of leave for “the employee [who] is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.”
“Public health emergency” means an emergency related to COVID-19. “School” includes elementary or secondary schools as defined in the Elementary and Secondary Education Act of 1965 (20 U.S.C. 7801). “Child care provider” means a provider who provides child care serves on a regular basis for compensation.
No change has been made to the definitions of “health care provider” and “son or daughter.” They have the same meanings under the FMLA.
Q: What are employers required to pay an employee on leave under the emergency paid family and medical leave act? ADDED MARCH 23, 2020
The first 10 days of leave are unpaid. Employers may allow employees to substitute any other paid leave for accrued vacation, personal, medical or sick leave. Employers cannot mandate that employees substitute paid leave.
The next 10 weeks of leave are to be paid. Employees are entitled to be paid not less than 2/3 of their regular rate of pay for the number of hours the employee would otherwise normally be scheduled to work. “Regular rate of pay” is determined under section 7(e) of the FLSA (29 U.S.C. 207(e)).
Variable hour employees are entitled to the average number of hours worked over the past six- month period. Employees working for less than a six-month period, the employer shall use the “reasonable expectation of the employee at the time of hiring of the average number of hours per day that the employee would normally be scheduled to work.”
The paid leave described above is capped at $200 per day and capped at a total of $10,000.
Q: What does the emergency paid sick leave act (“EPSLA”) require? ADDED MARCH 23, 2020
A: Full time employees are entitled to up to 80 hours of paid sick leave. Part time employees are entitled to be paid for the number of hours the employee works, on average, over a 2-week period. For part time employees with variable hours, employer shall average the number of hours worked over the past six- month period. Employees working for less than a six-month period, the employer shall use the “reasonable expectation of the employee at the time of hiring of the average number of hours per day that the employee would normally be scheduled to work.”
Q: What do employers have to pay employees taking leave under EPSLA? ADDED MARCH 23, 2020
A: Employers must pay employees their regular rate of pay, or minimum wage, whichever is greater, for leave taken for reasons 1-3. Employers must pay employees at 2/3 their regular rate of pay, or minimum wage, whichever is greater, for leave taken for reasons 4-6. Employers must pay part time employees for the number of hours they would normally work during a two-week period.
Paid sick leave it capped at $511 per day or a total of $5,110 if they take leave for the following reasons:
- Employee subject to fed, state, local quarantine or isolation order related to COVID-19;
- Employee has been advised by health provider to self-quarantine due to concerns related to COVID-19; or
- Employee experiencing symptoms of COVID-19 and seeking medical diagnosis.
and $200 per day or a total of $2,000 if the employee takes leave for the following reasons:
- Employee caring for a person who is subject to fed, state, local quarantine or isolation order related to covid-19 or has been advised by health provider to self-quarantine due to concerns related to COVID-19
- Employee caring for son or daughter of employee if school or place of care has been closed, or child care provider of son or daughter is unavailable due to COVID-19 precautions
- Employee experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with Secretary of Treasury and Secretary of Labor.
Q: Are the employers entitled to tax credits under the new paid leave laws? ADDED MARCH 23, 2020
A: There will be a credit against the tax imposed each calendar quarter in an amount equal to 100 percent of the qualified sick leave wages and 100 percent of the qualified family leave wages paid by the employer with respect to that calendar quarter.
The Secretary of the Treasury shall prescribe regulation and other guidance as may be necessary to carry out the acts.
Q: Are there any exceptions under these new paid leave laws? ADDED MARCH 23, 2020
A: The Secretary of Labor has the authority to issue regulation that may provide some exceptions for small businesses with fewer than 50 employees “when the imposition of such requirements would jeopardize the viability of the business as a going concern.” No such regulations are in place at this time.