|This general guidance is based on U.S. federal employment law and the current medical assessment of COVID-19. State and local laws may apply, and medical assessments may change, resulting in different conclusions.|
Question 1. May an employer count an employee’s time away from work due to the employee’s own COVID-19 illness against the employee in terms of the employer’s attendance policy?
- Answer 1. Yes, as long as the illness is not an FMLA-qualifying serious health condition (see the section covering FMLA-related questions below), in which case the employer should comply with the FMLA’s prohibition on counting these types of absences against an employee. Note that there may be times when complications arising from COVID-19 (or COVID-19’s effects on a preexisting medical condition) could be considered a disability, in which case the ADA may be implicated and a reasonable accommodation may be required, such as a modification to the employee’s attendance requirements. Here again, though, employers may wish to consider the implications of doing something that might be perceived as creating a financial penalty for staying away from work while sick (see questions 10, 11, and 12). See our FFCRA FAQs.
Q2. Should an employer discipline employees who are away from work because of COVID-19 for violating its attendance policy?
- A2. One of the main reasons that employers may want to refrain from disciplining employees under these circumstances is that a large number of employees’ attendance records will be adversely impacted. Having a large percentage of the workforce subject to termination because of attendance issues would be extremely disruptive to an employer’s continued business operations and would have a negative effect on employee relations. Additionally, applying discipline for taking time away from work because of COVID-19 might encourage employees who already have attendance issues not to reveal their COVID-19 symptoms rather than risk termination. See our FFCRA FAQs.
Q3. Does an employer’s waiver of strict compliance with its attendance policy regarding COVID-19 set a negative precedent, opening the door for employees with other serious illnesses to argue that their absences should not be counted against them in terms of the attendance policy?
- A3. No, as long as that waiver is consistently applied to all COVID-19 absences and to COVID-19 absences only. If employers make clear to employees that the waiver of strict compliance with the attendance policy is for COVID-19 only, employers should be able to distinguish between an absence related to COVID-19 and any other type of absence, based on the serious, widespread, non-recurrent nature of the current COVID-19 outbreak.
For more answers to your frequently asked questions, please select a topic below:
- Compensation and Tax Issues
- Disability Related Inquiries and Medical Examinations
- Employees with Symptoms or Exposure
- Families First Coronavirus Response Act (FFCRA)
- Health coverage
- Hiring During the COVID-19 Pandemic
- Reduction in Force/WARN
- Retirement Plan Issues
- Short-term disability coverage
- Tax Credits Under FFCRA and the CARES Act
- Vacation, Paid Time Off, and Paid Sick Leave
- Wage and Hour
- Workers’ Compensation
- Workplace Safety