The Top “What if” COVID-19 Questions From Employers - May 14, 2020


1. What do I do if my employees don’t want to come back to work?

It depends on why they are not coming back to work. If the employee refuses with no explanation or reason, ask the employee for a reason. If none is given, then the employee is voluntarily separating from employment or terminated (refer to your policy). However, if the employee or a family member has a health-related issue impacting their ability to return, you must determine if the employee is protected under applicable law (i.e. Americans with Disabilities Act (ADA), Fair Employment and Housing Act (FEHA), injury or illness, Emergency Family Medical Leave, Emergency Paid Sick Leave) requiring a leave of absence or other forms of reasonable accommodation. If there is a child care related issue also look at the new emergency leaves as well as school activities leave.

2. What if my employee doesn’t want to return to work because they are earning more money on Unemployment Insurance?

Some workers don’t want to return to work because they’re earning more money on enhanced unemployment benefits than when they were working for your company. Notify your employees in writing that there is work available and the effective date that work is available. Any refusal to return to available work should be documented, and employers can inform employees that a refusal to return is a voluntary resignation. Document that you offered the employee an opportunity to return to work and that this offer was rejected. Getting an employee’s refusal in writing via text or email is also highly recommended. Process the Notice of Change in Relationship as you would any other separation from employment — noting either resignation or termination.

3. What if my employee says they are afraid to return to work?

Fear of the virus is on the mind of most employees being called back to work. People might say, “I’m afraid I will get sick at work and bring it home to my family.” In the notice to employees that there is work available, employers should outline all actions being taken to comply with federal, state, and local laws to ensure a safe and healthy workplace such as cleaning protocol, staggered shifts, social distancing, etc. And make sure that you have met all those safety requirements. Check your local city and county COVID-19 resource pages, as well as CDC and Cal-OSHA for guidance. Tell your employees additional training on these protocols will be implemented on their return.

4. What if my employee says that they are “immunocompromised”?

When an employee tells you that they are not willing to come back to work because they are immunocompromised you should now begin going through the ADA/FEHA process to determine what accommodations are needed to allow them to return to work safely. Request a doctor’s note outlining any limitations and proposed accommodations such as providing the employee with a special mask, allowing the employee to work remotely or putting the employee on a leave of absence.

5. Am I allowed to take my employee’s temperature?

Yes. Employers are allowed to ask about coronavirus-related symptoms and take the temperatures of employees under guidance from the Equal Employment Opportunity Commission (EEOC). The EEOC also permits employers to mandate that employees be tested for the virus before entering work under certain circumstances. Use caution when mandating testing as it is not always available — a release from an employee’s doctor may suffice.

If temperature taking at the workplace is mandated, the time spent being tested and waiting for a test is considered part of the workday. Reminder, those records are confidential medical records that should be maintained so that only those with a legitimate right of access can see those files.

6. Should I require my employees to wear a mask?

The Centers for Disease Control and Prevention has recommended that individuals wear face masks ”to slow the spread of the virus and help people who may have the virus and do not know it from transmitting it to others.” And many employers are making face coverings part of the work uniform for jobs that require physical proximity and for jobs in counties that have mandatory face mask requirements.

If you are requiring employees to wear face masks, as a best practice decision or because required by a state or local law, you should provide the masks or reimburse employees for the cost.

Again, check your local ordinance. For example, both Los Angeles and Sonoma County require masks and require employers to pick up the cost of masks for employees.

Some executive orders that do not expressly call for employees to wear face masks still require employers to take a range of precautionary measures to protect personnel who are required to work onsite because the employer falls within a critical infrastructure sector exempt from stay-at-home orders or to maintain minimal business operations (such as payroll, or essential functions that support the rest of the workforce in teleworking).

7. What happens if an employee returns to work and they (or someone in their family) get sick?

Employers need to understand the Families First Coronavirus Response act which provides paid sick leave for people affected by COVID-19. Smaller employers (under 50 employees) need to understand their ability to be exempt from some of the paid emergency family leave requirements. You can find more information here.

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