Answering More of Employers' COVID-19-Related FAQs

August 13, 2020 | From HRCalifornia Extra

Compiled by Katie Culliton, Editor, CalChamber

California had begun easing into a phased reopening plan when COVID-19 cases started surging, which caused the state to pause or even roll back its reopening. Employers, who had started reopening and recalling their workforces, have started asking new questions about how to protect their workers while still doing business.

The CalChamber Labor Law Helpline continues to receive lots of calls from members related to COVID-19. Here are some of the most frequently asked questions they receive and their answers.

Can I require an employee who previously tested positive for COVID-19 to submit a negative COVID-19 test result before returning to work?

At the moment, there’s no guidance that allows employers to require employees to submit a negative COVID-19 test result as a condition of returning to work.

In a frequently asked question and answer from April 23, 2020, the Equal Employment Opportunity Commission (EEOC) stated that an employer may require a doctor’s note certifying fitness for duty from an employee.

The EEOC’s rationale for its position was that such an inquiry is allowed under the federal Americans with Disabilities Act (ADA) because it would either not be a disability-related inquiry, or, if the pandemic were truly severe, such certification would be justified under the ADA standards for disability-related inquiries of employees.

However, as the health care system is currently burdened, the EEOC notes that employers may have to be flexible about the types of notes, such as a form or email.

When can an employee who previously tested positive for COVID-19 return to work?

To help determine whether an employee may return to work, employers can refer to the COVID-19 Employer Playbook For a Safe Reopening that outlines virus infection timeframes.

For example, a symptomatic employee who tested positive for COVID-19 may return to work if “at least 1 day (24 hours) has passed since last fever … and improvements in symptoms (e.g., cough, shortness of breath); and, at least 10 days have passed since symptoms first appeared.”

It’s important that employers continuously check for updates at both the Centers for Disease Control and Prevention (CDC) website and their local health departments.

What if an employee doesn’t want to return to work because they’re self-quarantining?

It’s very important that employers begin an interactive process and ask, “Why?” Perhaps the employee can’t return to work because they’ve been ordered by their county to self-quarantine due to contact with a COVID-19-positive individual; they’ve recently traveled outside the country; or the employee has an underlying medical condition that places them at higher risk to COVID-19 complications.

Employers should determine why the employee isn’t returning to work because their reasoning will determine the employer’s obligations. For example, if an employee is caring for someone who’s positive for COVID-19, they may be entitled to leave under the Families First Coronavirus Response Act (FFCRA). Employees may qualify for FFCRA leave under several different circumstances, but employers are limited in the types of documentation they can ask employees who want to take FFCRA leave. 

Additionally, the Equal Employment Opportunity Commission (EEOC) says if an employee isn’t coming in to work because they have an underlying health condition that puts them at higher risk, then employers must engage in the interactive process and possibly provide leave as a reasonable accommodation. The Department of Fair Employment and Housing (DFEH) included similar guidance in a COVID-19 FAQ published on July 24, 2020.

If none of the above scenarios apply, then deciding what to do is at the employer’s discretion, but employers must gather a lot of information before reaching that step.

What is an employer’s obligation, in a general, indoor office workplace, for following and adhering to California’s face covering mandate?

Many industries, including restaurants and health care, should follow their own industry-specific guidelines.

Generally, employers should refer to the June 18 California Department of Public Health (CDPH) guidance as it addresses a variety of scenarios that require face coverings in the workplace, such as when an employee is engaging with members of the public; working in an area where food is prepared; or working or walking in common areas like hallways, stairways, elevators or parking facilities.

Establishing a face covering policy is important, especially since the California Division of Occupational Safety and Health (Cal/OSHA) can enforce the mask mandate through fines. Businesses should establish a mask policy within their dress code policy and enforce the mask policy the way they would normally enforce the dress code policy.

If an employee resists your mask policy or claims to have a disability that prevents them from wearing a face covering, then employers need to have a separate conversation, asking the employee for the reasons they can’t wear a mask and then use the interactive process to see what reasonable accommodations can be provided.

Lastly, the Department of Industrial Relations (DIR) issued recent guidance stating that employers must provide face coverings to employees at no cost.

What are some accommodations employers must make when employees might be impacted by stress in the workplace?

Whether it’s the lack of social interaction, concern for one’s health or caring for children while working at the same time, employees may be impacted by the stress of the pandemic and performance may suffer.

Mental health issues can trigger disability protections, just like a physical disability. Past conditions may be exacerbated by this stress or sometimes new conditions may arise, and these issues may manifest in performance issues or excessively calling out.

Employers should have a good-faith interactive process and try to figure out how to help the employee perform their job duties — whether that means a modified schedule or removing the more tangential job duties they have.

If the company has one, employers should provide the employee with information about the Employee Assistance Program. If recommended by a medical provider, leave may be offered. However, because COVID-19 has burdened the health care industry, employers should keep in mind that it may take longer to get ordinary medical certifications.

Ultimately, employers should try to be flexible and creative in how they help their employees meet their job duties.

For the most up-to-date information on how COVID-19 is impacting employers, visit the CalChamber COVID-19 resource page.