Handling the COVID -Sick and Purportedly COVID -Sick Employee
The main questions we receive from employers during the pandemic is how to keep sick employees’ home and how to get healthy employees working. These are reasonable questions. Ordinarily, California’s employment laws are particularly employee friendly and are best understood only after the courts have had an opportunity to interpret the unfortunately ambiguous language provided by the legislature. Due to COVID-19, the luxury of waiting for the courts to clarify laws has disappeared as answers are often needed with far more immediacy. Thus, the main guidance during this period is supplied by agencies—such as the Equal Employment Opportunity Commission (“EEOC”) or the Department of Labor—clarifying or modifying certain obligations and standards. While helpful, the patchwork adjustments to rules also means much confusion as there is essentially no central body of law or controlling authority on any of these issues. This article serves to answer some of the most common questions encountered by employers during these unprecedented times.
What Can Employers Require of Employees to Keep COVID-19 Out of the Workplace?
With respect to keeping the workplace healthy, employers are entitled to question an employee’s health. Ordinarily, an employer is either prohibited from asking about an employee’s health conditions or is simply inviting a lawsuit by doing so. However, the EEOC has issued guidance that the COVID-19 pandemic qualifies as a “direct threat,” thus permitting employers to question employees as to whether they are experiencing COVID-19 symptoms. However, there are limitations to these questions—employers cannot ask employees about health conditions that might be exacerbated by COVID-19. The rationale is simple: employers need to know if an employee is going to spread COVID-19, but whether an employee has other health conditions that make him or her personally more susceptible to COVID-19 is irrelevant to the workplace. Essentially, an employee with underlying health conditions is not going to make that employee any more or less lethal to his or her coworkers, so the ordinary rules apply.
Employers are also entitled to engage in such basic testing, such as taking each employee’s temperature as a condition of starting their shift. Employer may also require employees to wear face masks or appropriate coverings during their shift. However, the mask would then constitute a required part of an employee’s uniform and employers would be safest paying the cost for the mask or providing masks to employees directly.
If an employee has been exposed to COVID-19, or has actually contracted COVID-19, under the Americans with Disabilities Act, an employer may require a doctor’s note clearing the employee to return to work. However, several local government entities, including Los Angeles County, have recommended against requiring a doctor’s note to return to work, citing the burden such requirements place on the medical system. Instead, it is recommended that employers follow a time-based rule in compliance with the quarantine/isolation periods set forth by the Center for Disease Control (“CDC”).
What Happens When an Employee is Out Due to COVID-19?
An employee who contracts COVID-19 is going to be considered “sick” whether or not that employee has symptoms. This entitles the employee to sick time pay and benefits provided by COVID-19-related laws passed both by California and federally.
These laws have significant overlap. Recognizing the inherent confusion, the California Department of Industrial Relations has provided a side-by-side chart that explains the types of and differences between various sick time pay and leave available to employees. The ultimate summary is that anyone out for COVID-19 (or quarantined due to potential exposure) likely qualifies for 80 hours of pay at their regular rate as additional sick time applicable only to COVID-19. Notably, these 80 hours are in addition to their regular sick time, which is also applicable. Further, if an employee is quarantined or isolating due to “concerns” related to COVID-19 (i.e. generalized fear of COVID 19), or required to stay home by the employer, the employee gets another 80 hours of paid sick time, paid at two-thirds of the employee’s regular rate. Lastly, any employee who has to take care of a family member or child (or whose child’s school is closed due to COVID-19) can take another ten weeks of time off, also paid at two-thirds of the employee’s regular rate. If the employee suffers from a long-term COVID-19 infection, then this is a reasonable period, however, in most cases, this is an extraordinary period of leave.
The silver lining is that the federal leave was designed to be claimed, dollar for dollar, as a tax credit. Whenever tax matters arise, a tax professional should be consulted and no generalizations should be taken or assumed. However, employers should explore that option in order to recoup the additional wage expenditures without obtaining an employee’s labor, particularly during this period of reduced revenues. As an additional caveat, the federal law ordering such a tax credit applies to the wages paid pursuant to the federal leave periods. The pay required by California law may not benefit from the same tax treatment.
What Happens When an Employee Does Not Want to Come Back Despite Being Healthy?
During the period of enhanced unemployment payments, some healthy employees were electing not to work in order to collect the higher unemployment payments. While this issue is somewhat subdued at this time, it still exists. Employers’ options for dealing with a healthy employee who chooses to not return to the workplace are limited. First, employers should provide written notice to the employee that the business is open and that they may return to work. If the employee chooses not to do so, the employer may inquire into the employee’s reasons (generally—not about specific health conditions or other matters). If the employee refuses to provide any reason or does not respond, the employer may wish to provide written notice that a refusal to return to work constitutes resignation. It is important to get such a notice in writing.
The more problematic issue is how to deal with an employee who provides a reason for not wanting to return. Frequently, employees cite either underlying health conditions which put them at increased risk if they contract COVID-19 or a generalized fear of COVID-19. If an employee volunteers information about a health condition, an employer should engage in the ordinary interactive process to determine what accommodations might be made to the workplace to accommodate the employee’s health condition in order to permit the employee to return to work. Where an employee cites to a generalized fear, the employer should provide in writing a description of the practices engaged in by the employer to provide a safe workplace (i.e., increased sanitation or disinfection, social distancing, etc.). If the employee chooses to not return despite such notice, the employee may qualify under one or more of the broad language of the leave periods described above. While, arguably, an employer should then be entitled to terminate, this is an area that does not have sufficient certainty and it will be important to see what additional guidance (particularly from the courts) will be offered moving forward.
 It should be noted that an employee who is required to engage in such testing ordinarily must be paid for the time it takes to be tested.
 Technically, this last period is a twelve week period, but the first two weeks are unpaid.
 As always, an employer is obligated to engage in an interactive process with respect to disabilities. Take reasonable steps with this process. If an employee refuses to respond, then the employee may be informed that such refusal would constitute a resignation. However, if that employee did not respond because they turned out to be in the operating room, or some other issue, the employer would not be advised to treat that as a resignation and should treat the matter as any other disability.
 The next common question is what to do when the employee’s reason appears to be patently dishonest – the employee who is purported quarantined in fear of their life and with other health conditions rendering COVID incredibly lethal who is simultaneously posting to social media from their weekend parties, and so forth. Practically, it does not matter if that reason is true or not. Terminations which stem from real or perceived health issues frequently lead to lawsuits. And an employer will rarely if ever be able to economically prove whether the stated reasons for termination (or the reasons provided by the employee) were appropriate or not.