Last updated May 1, 2020.
|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.|
Employees with Symptoms or Exposure
- Answer 1. Yes. Employers may send an employee home if they have COVID-19-related symptoms. In response to the current COVID-19 outbreak, the EEOC has issued updated pandemic guidance, which states that advising workers with symptoms to go home either (a) is not a disability-related action if the illness is akin to seasonal influenza or (b) is permitted under the ADA if the illness is serious enough to pose a direct threat to the employee or coworkers—a standard the EEOC now recognizes the current COVID-19 pandemic meets. The EEOC also advises employers and employees to “follow guidance from the Centers for Disease Control and Prevention (CDC) as well as state/local public health authorities.” The CDC’s Interim Guidance for Business and Employers (“CDC’s Employer Guidance,” which was last updated on April 9, 2020) advises that employees with “symptoms (i.e. fever, cough, or shortness of breath) should notify their supervisor and stay home.” More recently, the CDC expanded its list of symptoms to include: fever, cough, shortness of breath / difficulty breathing, chills, repeated shaking with chills, muscle pain, headache, sore throat, and new loss of taste or smell. Of course, employers should apply this type of policy uniformly and in a manner that does not discriminate based on any protected characteristic (e.g., national origin, gender, race, etc.).
A2. Yes, employers may be justified in taking such precautions such as when the asymptomatic employee fits within certain exposure risk categories established by the CDC’s Public Health Recommendations for Community-Related Exposure (which was last updated on March 30, 2020, and addresses community-related exposures to individuals with symptomatic COVID-19).
While it should be noted that the foregoing CDC guidance is primarily directed as advice for public health authorities, the guidance recommends that an individual who is asymptomatic remain at home (i.e., may be excluded from the workplace) for a period of 14 days after the last exposure under any of the following circumstances:
- The individual had “close contact (<6 feet) for a prolonged period of time” with a symptomatic person with COVID-19;
- The individual is a household member of a symptomatic person with COVID-19;
- The individual is an intimate partner of a symptomatic person with COVID-19; or
- The individual “provides care in a household without using recommended infection control precautions” to a symptomatic person with COVID-19.
Being a symptomatic person with COVID-19 does not require laboratory-confirmed disease if the illness is clinically compatible with COVID-19 in a state or territory with widespread community transmission.
The CDC’s recommendations in the above circumstances apply where the individual was exposed to a symptomatic person with COVID-19 during the period of time from 48 hours before the person’s symptoms began until the person meets the CDC’s criteria for discontinuing home isolation (e.g., 72 hours after fever resolves and 7 days after symptoms first began, among other things). Where an individual is advised to stay home for 14 days following the exposure, the CDC advises that the individual should self-monitor for symptoms, employ social distancing, and follow CDC guidance if symptoms develop.
The CDC generally regards “close contact” as meaning being within 6 feet of the COVID-19 case for a prolonged period of time, but the guidance notes that “[f]actors to consider when defining close contact include proximity, the duration of exposure (e.g., longer exposure time likely increases exposure risk), whether the individual has symptoms (e.g., coughing likely increases exposure risk) and whether the individual was wearing a facemask (which can efficiently block respiratory secretion from contaminating others and the environment).” Similarly, the CDC does not specifically define “prolonged period of time,” but states that it may “vary on the length of time of exposure from 10 minutes or more to 30 minutes or more.” While the CDC points out that brief interactions are less likely to transmit the virus, whether the person has symptoms and the type of interaction, such as whether the person coughed directly into the face of the individual, remain important factors.
For critical infrastructure employees who have had exposure but remain asymptomatic, the CDC advises they may return to work but should pre-screen, engage in regular monitoring, wear a mask at all times in the workplace for 14 days after the last exposure, and practice social distancing as work duties permit. All areas like offices, bathrooms, etc. should be cleaned and disinfected.
In certain communities, the CDC also has issued more detailed Community Mitigation Plans employers may wish to consult. In addition, state and local public health authorities have issued specific guidance within their jurisdictions, which employers should consider reviewing in connection with decisions to keep employees home due to illness or exposure risks. Finally, employers should note there are different standards and CDC guidance for healthcare employees.
The CDC reminds employers that in order to prevent stigma and discrimination in the workplace, employers should use its guidance to determine the risk of COVID-19. Employers considering actions beyond the guidance of the EEOC, the CDC, or state/local public health authorities may want to consider the basis for those and consult with legal counsel.
A3. Yes, employers may be justified in taking such precautions such as when the asymptomatic employee fits within certain exposure risk categories established by the CDC’s Public Health Recommendations after Travel-Associated COVID-19 Exposure (which was last updated on April 23, 2020). While it should be noted that the foregoing CDC guidance is primarily directed as advice for public health authorities, the guidance recommends that an individual who is asymptomatic remain at home (i.e., may be excluded from the workplace) for a period of 14 days after arrival from the following types of travel:
- Travel on a cruise ship or river boat; or
- Travel “from a country with widespread ongoing transmission” (which, as of May 1, 2020, continues to consist of all countries).
In addition, the CDC has recommended travelers within the United States evaluate their travel plans, noting there is community spread of COVID-19 in many areas of the United States. Employers may monitor updates from the CDC and state and local public health authorities. The CDC has advised that determinations should not be made based on race or country of origin.
- A4. Generally yes, as long as the employee’s duties allow telework. Many “stay at home” emergency orders imposed by state and local governments now strongly encourage employers to implement telework wherever feasible, and both the CDC and EEOC recommend employers consider telework options as part of their infection control strategies. The DOL also supports requiring or encouraging employees to telework based on current information from public health authorities, noting it can be a useful infection-control or prevention strategy and may also be an appropriate ADA accommodation. Permitting employees to telecommute may be particularly useful if there are documented cases of COVID-19 in the geographic area. Employers may want to continue consulting public health authorities in the applicable jurisdiction for additional recommendations and assessments as the virus spreads and situations change.
A5. There are several circumstances in which it may be appropriate to allow an employee to return to work after staying home due to symptoms consistent with COVID-19. While the CDC advises not to require a doctor’s note for an employee to return to work, where a healthcare provider has expressly released an employee to return to work, the employer generally should require a doctor’s note. In addition, where a public health authority has released an employee from home isolation or otherwise advised the employee that it is safe to return to work, the employer generally should allow the employee to return under those circumstances. (See question 8.)
In the absence of such express direction, employers may wish to consult the CDC Guidance to determine when an employee may be safe to return to work. The CDC advises that employees who have symptoms should stay home and “should not return to work until the criteria to discontinue home isolation are met, in consultation with healthcare providers and state and local health departments.” Under the referenced “Discontinuation of Home Isolation for Persons with COVID-19” guidance (which expressly is directed to healthcare providers and public health authorities managing COVID-19 patients, rather than undiagnosed employees who were sent home due to fever or other symptoms), the CDC states that symptomatic persons with COVID-19 may discontinue home isolation (and thus presumably return to work) when the following three conditions are met:
- At least three days (72 hours) have passed since the person’s fever resolved without the use of fever-reducing medications (like ibuprofen); and
- There has been “improvement in respiratory symptoms (e.g., cough, shortness of breath);” and
- At least seven days have passed since the person’s symptoms first appeared.
A reasonable and conservative approach in the absence of specific direction from a healthcare provider or the state or local public health authorities is to presume the employee’s symptoms may be COVID-19-related and keep the employee out of the workplace until at least 72 hours after fever resolves, there has been some improvement in the employee’s respiratory symptoms, and it has been at least 7 days since the employee first began experiencing symptoms, per the CDC’s Discontinuation of Home Isolation for Persons with COVID-19 guidance.
Employers considering implementation of policies beyond the CDC’s guidance (e.g., a longer “return to work” time period) should consider the basis for those and consult with legal counsel.
An employer may want to meet with any returning employees to remind them to practice good respiratory etiquette and hand hygiene, avoid close contact with individuals who appear to be sick, and stay home if they begin to feel sick, for the health and safety of those employees and their coworkers, as well as the continued operations of the employer.
A6. First, employers should follow current guidance from the CDC and other public health authorities as it is updated. If an employee is given specific restrictions or instructions by a public health authority or a medical provider, it may prove helpful for the health of the workplace for employers to make all reasonable efforts to accommodate those instructions, including by providing additional leave as necessary.
Second, employers should continue to exercise sound discretion in taking proactive steps to minimize the risk of spreading the virus at work, such as the consideration of accommodations within reason of employee requests for additional time off from work.
Third, employers should remain mindful of potential existing leave obligations under the Family and Medical Leave Act (FMLA) for serious health conditions or accommodations (including additional leave) under the ADA in which an employee’s illness might constitute an ADA disability. Employers with less than 500 employees and public employers should also remain mindful of any applicable paid sick leave obligations under the Families First Coronavirus Response Act (FFCRA) or applicable state laws. As a practical matter, during this outbreak, many employers may wish to encourage employees to stay home until they feel better, up to a reasonable point. Employers should make these decisions uniformly and be on the lookout for potential abuse.
A7. The CDC states that employers should not require a COVID-19 test result or a doctor’s note to validate an employee’s illness, qualify for sick leave, or as a prerequisite to return to work. This is in part because this requirement would place a high burden on the healthcare system and healthcare provider offices and medical facilities may not be able to provide documentation in a timely fashion. Special circumstances may warrant deviation from this advice, however, such as where an employee’s situation continues to meet the ADA’s “direct threat” standards at the time they are attempting to return to work, in which case an employer may require a return-to-work doctor’s note.
In addition, though the CDC’s guidance advises against requiring a return-to-work note, if the employee’s illness is a “serious health condition” under the FMLA (see questions 29 and 30), the employer would be able to require a return-to-work note if the employer complies with the FMLA’s guidelines for requiring such documentation, including, among others, notifying the employee in the initial determination that fitness-for-duty notes will be required and consistently applying the requirement to all FMLA leaves.
It should be noted, however, that the recently released Opening Up America Again guidelines from President Trump, which recommend a phased approach for state and local governments to consider in easing restrictions and allowing employees to return to the workplace, states that during each phase of the plan, employers should “not allow symptomatic people to physically return to work until cleared by a medical provider.” Employers may wish to review the latest state and local orders and recommendations and consider requesting medical releases where appropriate in accordance with such guidance.
- A8. Yes, if the employee would create an unsafe or unhealthful work environment or is a direct threat to him- or herself or others, the employer may refuse to allow the employee to return. Often, having a one-on-one conversation with the employee will reveal the reason for his or her desire to return to work (e.g., he or she has exhausted all paid leave, has an important project to finish, etc.) and perhaps result in a shared conclusion that he or she is or is not ready to return to work.
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