EEOC and DOL Provide Needed Guidance

March 20, 2020

The EEOC and the Department of Labor have posted recent guidance for employers related to COVID-19. Here are key takeaways for employers:

Note: This guidance does not take into account the impact that the FFCRA (click here to view story) will have on employers. 

Treatment of Employees and Job Applicants

The EEOC recently announced that although the Americans with Disabilities Act (ADA) and the Rehabilitation Act continue to apply, they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state and local public health authorities about steps employers should take regarding COVID-19. 

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How much information may an employer request from an employee who calls in sick?

During a pandemic, employers may ask employees if they are experiencing symptoms of the pandemic virus (e.g., fever, chills, cough, shortness of breath, or sore throat). Employers must maintain all information about employee illness as a confidential medical record.

When may an employer take the body temperature of employees during the COVID-19 pandemic?

Because the CDC and state/local health authorities have acknowledged community spread of COVID-19, employers may measure employees' body temperature. But employers should be aware that some people with COVID-19 do not have a fever.

May employers require employees to stay home if they have symptoms of COVID-19? 

Yes. The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace, and the ADA does not interfere with employers following this advice.

When employees return to work, may employers require doctors' notes certifying their fitness for duty? 

Yes. As a practical matter, however, doctors and other healthcare professionals may be too busy during and immediately after a pandemic outbreak to provide formal fitness-for-duty documentation, so alternative approaches (e.g., forms or emails) may be necessary.

If an employer is hiring, may it screen applicants for symptoms of COVID-19?

Yes. An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job

May an employer delay the start date of an applicant who has COVID-19 or symptoms associated with it? 

Yes. According to current CDC guidance, an individual who has COVID-19 or symptoms associated with it should not be in the workplace. 

May an employer withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or symptoms of it?

Based on current CDC guidance, this individual cannot safely enter the workplace, and therefore the employer may withdraw the job offer.

Leave Issues

The Wage and Hour Division of the Department of Labor has provided the following guidance for employers related to the Family Medical Leave Act (FMLA) and the Fair Labor Standards Act in the wake of the COVID-19 pandemic. 

Must an employer grant leave to an employee who is sick or who is caring for a family member that is sick under FMLA?

An employee who is sick with the virus or whose family members are sick with the virus may be entitled to leave under the FMLA where complications arise that create a “serious health condition.” Workers who are ill with pandemic influenza or have a family member with influenza are urged to stay home to minimize the spread of the pandemic. The DOL therefore encourages employers to consider flexible leave policies for their employees.

Can an employee stay home under FMLA leave to avoid getting pandemic influenza?

No. Leave taken by an employee for the purpose of avoiding exposure to the flu is not protected under the FMLA. 

May an employer require an employee who is out sick with pandemic influenza to provide a doctor’s note, submit to a medical exam, or remain symptom-free for a specified amount of time before returning to work?

Yes. But employers should consider that during a pandemic, healthcare resources may be overwhelmed and it may be difficult for employees to get appointments with doctors or other health care providers to verify they are well or no longer contagious.

Is an employer required by law to provide paid sick leave to employees who are out of work because they have pandemic influenza, have been exposed to a family member with influenza, or are caring for a family member with influenza?

Federal law does not require employers to provide paid leave to employees who are absent from work because they are sick with pandemic flu, have been exposed to someone with the flu, or are caring for someone with the flu. 

Wage and Hour Issues

When is an employer obligated to pay employees who are not working or who are working from home?

Hourly employees must be paid only for the hours actually worked. Exempt, salaried employees generally must receive their full salary in any week in which they perform any work. These rules apply whether the work is performed at home or in the employer’s office.
Are businesses and other employers required to cover any additional costs that employees may incur if they work from home (internet access, computer, additional phone line, increased use of electricity, etc.)?

Employers may not require employees who are covered by the FLSA to pay or reimburse the employer for such items that are business expenses of the employer if doing so reduces the employee's earnings below the required minimum wage or overtime compensation. 

Disclaimer: The information included here is provided for general informational purposes only and should not be a substitute for legal advice nor is it intended to be a substitute for legal counsel. For more information or if you have further questions, please contact one of our Attorneys.