All 50 states are in various stages of reopening businesses, schools, retailers and restaurants. Employees are concerned about returning to work, health and safety issues, medical and family leave laws and policies, disability accommodations, and job security. This FAQ covers a few related highlights of the Department of Labor’s recent guidance.
Can my employer send me home if I have symptoms of COVID-19? What if I have no symptoms but my boss thinks I’m “high-risk?”
A policy banning employees with COVID symptoms from the workplace is lawful. Such policies and enforcement must be consistent and comply with anti-discrimination laws. Employers should not refuse employees based on speculation that they are high-risk (e.g. because they are over age 65 or pregnant.) There must be objective evidence that the employee poses a direct threat to himself or others, and no available reasonable accommodation (that would not pose an undue hardship) to eliminate the threat, such as telework. Be sure to check your company’s policies on sick leave, as well as possible leave under the Families First Coronavirus Response Act (FFCRA) and Family and Medical Leave Act (FMLA).
Can I get FFCRA paid leave if I have COVID symptoms and unilaterally decide to self-quarantine without medical advice?
No. If you become ill with COVID-19 symptoms, you may take paid sick leave under the FFCRA only to seek a medical diagnosis or if a health care provider otherwise advises you to self-quarantine.
Do I have a right to return to work after taking FFCRA leave?
Generally, yes. The statute requires employers to provide the same (or a nearly equivalent) job to an employee who returns to work following leave. Your employer is prohibited from firing, disciplining, or otherwise discriminating against you because you take protected leave.
However, you are not protected from employment actions, such as reductions-in-force and layoffs, that would have affected you regardless of whether you took leave. This means your employer can lay you off for legitimate business reasons, unrelated to your leave.
Your employer may also refuse to return you to your work position if you are a highly compensated “key employee” as defined under the FMLA, or if your employer has fewer than 25 employees, you took FFCRA family leave because school/place of care was closed, or child care provider was unavailable, and if four specific company hardship conditions exist.
Can my employer require that I quarantine after taking leave to care for my parent who was advised by a health care provider to self-quarantine due to COVID symptoms? Can they require me to take a COVID test?
Due to the public health emergency and potential exposure to an individual with COVID, your employer can temporarily reinstate you to an equivalent position requiring less interaction with co-workers or require that you telework.
You also must comply with the company’s general policy for any employees who had contact with a COVID-infected person to test negative, regardless of taking leave.
If my child’s school is offering only online instruction, is it considered “closed” for FFCRA paid leave?
Yes. If the physical location where your child received instruction or care is now closed, the school or place of care is “closed,” even if some or all instruction is being provided online.
If my spouse is available to help with child care, can I still take FFCRA leave to care for my child whose school is closed or child care provider is unavailable due to COVID?
You may take FFCRA leave for your child only when you need to, and actually are, caring for your child, but not at the same time a co-parent or co-guardian is available to provide the care.
- Lori Goldstein, Employment Attorney, CRC Board Member