COVID-19: Return To Work Guidelines and Requirements for Employers

What are the laws, employer and employee rights, and instructions on returning staffers to work? Read our answers to some of the questions you may have.

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Return-to-work guidelines and responses to common questions regarding workplaces and COVID-19

As Americans get back to work during this unprecedented pandemic, many business owners wonder how they can have their staffers return safely. What rights do employers have when it comes to protecting their workers, workplace, and clients? There are many safe practices businesses should employ when it comes to bringing staff back on board, while some areas may be a bit more murky.

The first priority is safety — for employees and customers. Some of the newest laws, including the Families First Coronavirus Response Act, provide sick leave wages and extended leave requirements for some businesses. Navigating the law, employer and employee rights, and how to provide a safe work environment can be challenging. Here are some responses to common questions about returning team members to work.

Asking employees to return to work

Employers are hopeful staff members are free of COVID-19 before they return to work, but testing is not widely available in most areas. Employers may require healthy workers to return to their normal duties or perform telework, if available.

For employees who are sick or have recently been sick — whether they have a confirmed diagnosis of COVID-19 or not — business owners should ask them for a doctor’s clearance before they can return to the office.

With regard to healthy staff members who have no childcare or caregiver requirements, businesses may ask the employee to return to work.

The FFRCA requires employers provide job-protected leave if:

  • Employees have young children and their school or daycare provider is no longer open due to the pandemic, or
  • Employees who are taking care of a family member who is ill due to the virus or unable to arrange alternate care

Employers are within their rights to request employees who have fallen ill due to COVID-19 to not return to work unless they verify they have complied with the Centers for Disease Control and Prevention guidance on when they are no longer infectious.

In addition, employers may take employees’ temperatures before they come into the building each day and ask them to wear masks when out of their offices. They may also require employees who become ill during the workday leave work immediately.

For employees who are sick or have recently been sick — whether they have a confirmed diagnosis of COVID-19 or not — business owners should ask them for a doctor’s clearance before they can return to the office.

Requesting test results

The Equal Employment Opportunity Commission (EEOC) continues to update  guidance to help employers navigate the impact of COVID-19.

Employers may require staff members to inform them if they have tested positive for COVID-19, whether or not they became ill. They can also ask employees about their exposure to COVID-19 and whether they have experienced symptoms.

Unlike a disability, COVID-19 is a disease that poses a potential threat to coworkers and the public. Businesses are within their rights to require employees disclose whether or not they have been confirmed positive.

They may also ask employees to disclose whether or not they have been in close contact with someone who has tested positive for the virus, although they should not be required to reveal the identity of that person.

Disclosing test results to employees

Unless an employee has been in contact with staff members while they were infected, employers may not disclose test results (positive or negative) of staff members who tested positive for COVID-19.

If an employee has been on the job while infected, employers may notify coworkers who were or may have been in close contact with the staffer that they may have been exposed  — without disclosing the employee’s name. These staff members should be alert to any symptoms they may experience, including fever, chills, shortness of breath, headaches, coughs, etc.

Employee travel

Employers may require employees who have travelled, for personal or business reasons, to an area with “widespread sustained transmission” as defined by the CDC, not return to work until they’ve completed a minimum 14 day self-quarantine after they return, even if they experience no symptoms of COVID-19. For those who do become ill, employers may ask for a doctor’s clearance before the staff member is able to return to work.

Most businesses have curtailed non-essential travel during the outbreak, but for some organizations, travel may be required. Employees whose essential function involves travel may be required to continue performing that work, with an eye to CDC guidance.

The agency has provided recommendations on travel and transmission risk on areas that currently have or do not have restrictions for travel from the U.S. government. Employers may not prohibit staff members from traveling for personal reasons, but they may require staffers undergo self-isolation before returning to work if they have traveled to areas of concern.

Employee fears

Even as the curve flattens in some areas and the pandemic shows signs of waning, many employees have fear about returning to work. Their fears may be due to exposure to the public or their colleagues. For employers, these fears may create staffing shortages that put pressure on colleagues and services.

Under the Occupational Safety and Health Act (OSHA), employees may refuse work if they “reasonably believe they are in imminent danger.” That fear typically includes the threat of death or serious physical harm. Generalized fear about the virus, that’s not based on fact, would not likely be sufficient to refuse to work. However, if the workplace currently has a number of confirmed cases of COVID-19, their fears may be justified.

For workers who are at higher risk for negative outcomes if they contract COVID-19, such as those with underlying medical conditions or workers who are immunocompromised, even generalized fears may be legitimate. Businesses should work with these staff members to alter the work environment as much as possible to mitigate risk, if they can.

Paid sick leave requirements 

The FFCRA requires employers with 500 or less staff members offer paid sick leave and/or expanded family and medical leave under specific guidelines in response to COVID-19.

The guidelines require:

  • 2 weeks of paid sick leave (80 hours maximum) at the employee’s regular rate of pay for employees employees quarantined due to a confirmed diagnosis of COVID-19 and/or experience COVID-19 symptoms
  • 2 weeks of paid sick leave (80 hours maximum) of paid sick leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine; or employees who must care for children, under 18, whose school or child care provider is not open or unavailable due to COVID-19,
  • An additional 10 weeks of paid expanded family and medical leave at 2/3 the employee’s regular rate of pay where an employee is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19, providing the employee worked for the company for at least 30 calendar days before the leave began
  • Part-time workers are eligible for leave payments in the amount of their normal work schedule

Businesses with fewer than 50 employees may qualify for an exemption from the requirement to provide additional leave due to school closings or child care unavailability if the leave requirements jeopardize the viability of the business as an ongoing concern.

If you need help navigating COVID-19 regulations, here is a good resource to lessen your burden and automate compliance.

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