As the COVID-19 pandemic stretches on in the United States, employers continue to face workplace safety and employee leave issues. Federal, state and local responses to the pandemic are constantly evolving and can affect business operations, staffing needs and personnel management efforts.

To help you and your clients continue to navigate the pandemic, we’ve put together the following list of top questions and answers from our recent webinar, “Important Coronavirus Updates for Employers.”

­Employee Leave

Do you know whether the Emergency Paid Sick Leave will be extended into 2021?

Federal emergency paid leave under the Families First Coronavirus Response Act (FFCRA) is set to expire on Dec. 31, 2020. It is unclear whether these provisions will be extended to 2021 as any extension would have to be passed by Congress. In the meantime, employers should be aware of any similar state or local requirements that may apply in 2020 and beyond.  ­

What employers are subject to FFCRA? Are there any exemptions?

The FFCRA applies to certain public employers and private employers with fewer than 500 employees. Small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or child care unavailability if the leave requirements would jeopardize the viability of the business as a going concern. Strict requirements apply to claiming this exemption.

Are part-time employees eligible for paid leave under FFCRA?

Part-time employees are eligible for paid leave under the FFCRA. A full-time employee is eligible for up to 80 hours of leave, and a part-time employee is eligible for the number of hours of leave that he or she works on average over a two-week period, if the employee:

• Is subject to a federal, state or local quarantine/isolation order related to COVID-19;
• Has been advised by a health care provider to self-quarantine related to COVID-19;
• Is experiencing COVID-19 symptoms and seeking medical diagnosis; or
• Is caring for an individual who subject to a quarantine/isolation order or has been medically advised to self-quarantine.

In addition, full-time and part-time employees are eligible for leave if they cannot work because of the need to care for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19. A full-time employee is eligible for up to 12 weeks of leave at 40 hours a week, and a part-time employee is eligible for leave for the number of hours that he or she is normally scheduled to work over that 12-week period.

COVID-19 Testing and Vaccinations

Can an employer require employees to be vaccinated once the vaccination has been approved by the FDA? If so, are there situations where an employee can be exempt from this requirement? ­

Under federal anti-discrimination laws, employers may require employees to receive vaccinations only if the requirement is job-related and either consistent with business necessity or justified by a “direct threat.” Historically, this has enabled employers in some health care settings to require their employees to receive a flu vaccine.

For employers outside of these settings, voluntary employee vaccination policies are usually more prudent than mandatory ones. In fact, the EEOC has emphasized that, even during a pandemic, some employees may be protected from mandatory vaccination policies, particularly under medical, disability and religious accommodations.

­­Are all COVID-19 tests free, including those that are required by employers to return to work? Is there a special rule for employees working in nursing homes or for health care providers?   

While many COVID-19 tests will be covered by insurance or through government funding, not all COVID-19 tests are free. Specifically, health plans must cover COVID-19 testing (and related services) without cost-sharing when the test is for individual diagnostic purposes. However, this rule does not extend to tests that are not considered medically necessary, such as return-to-work screening tests. If free public testing is not available, the cost of a test may need to be covered by the employee or employer.

While there is no direct federal guidance on this issue, employers may need to cover the costs of COVID-19 tests they require in certain circumstances. Under the Americans with Disabilities Act, employers may require employees who may pose a “direct threat” to the workplace to undergo medical examinations by a provider of the employer’s choice. In these cases, the employer must pay all costs associated with the employees’ visits.

Some industries, such as health care, may have additional testing responsibilities and funding sources. For example, nursing homes are subject to staff testing requirements and the federal government has allocated specific funding to support testing needs.

Workplace Safety

Are employers required to report COVID-19 cases if they happen at work?

Federal OSHA regulations require employers to report work-related hospitalizations and fatalities, including those that result from work-related exposures to COVID-19. However, OSHA requires employers to report only those work-related hospitalizations that occur within 24 hours of a workplace exposure to COVID-19. This report must be submitted within 24 hours. Work-related fatalities that occur within 30 days of a work-related exposure to COVID-19 must be reported within 8 hours. Reporting hospitalizations and fatalities is not an admission of guilt or fault.

Employers may also need to follow state or local case reporting and notification requirements. A number of states have adopted comprehensive COVID-19 safety plans, which may include specific requirements for COVID-19 reporting. State and local public health requirements may also impose reporting and notification obligations on employers.

How can I deal with employees who refuse to work because of safety concerns or refuse to wear protective equipment like face coverings?

The appropriate response will depend on the particular circumstances, the reason for the employee’s refusal to work and whether the employee’s position is reasonable.

Under federal law, employees can refuse to work if they have a legitimate reason to feel unsafe. Employers are encouraged to evaluate “unsafe” work claims carefully (and potentially consult with an attorney) to determine whether any claim is protected by law. If an unsafe claim is determined to be unreasonable and there are no extenuating circumstances, employers can enforce disciplinary or attendance policies as necessary.

In some cases, employers may need to provide reasonable accommodations to employees if their refusal to come to the workplace could be related to a disability or other protected characteristic. Employers should communicate with employees regarding the reason for their concerns to determine what their legal obligations might be.

A similar analysis applies to employees who refuse to wear face coverings or other protective equipment. In general, employers can require employees to wear protective gear (for example, masks and gloves) and observe infection control practices (for example, regular hand washing and social distancing protocols).

If an employee refuses to follow these requirements, the employer should determine the employee’s reason for doing so. According to the EEOC, where an employee with a disability needs a related reasonable accommodation under the ADA (such as non-latex gloves, modified face masks for communicating using lip reading, or gowns designed for individuals who use wheelchairs), or a religious accommodation under Title VII (such as modified equipment due to religious garb), the employer should discuss the request and provide the modification or an alternative if is feasible and not an undue hardship on the operation of the employer’s business.

Want More Information?               

A full recording of the “Important Coronavirus Updates for Employers” webinar can be found here, along with dozens of other archived webinars exploring today’s most important insurance topics.