• Chamber_Join_The_Chamber_webbanners_2_(3)_(1).jpg
  • The Following information is current as of the printed date of publication. Please visit WWW.ADP.COM to check for updates. 

     

    COVID-19 FAQs (UPDATED 3/16/20) Workplace Infection Control Practices Impacting Employees

    3/16/2020

    These general FAQs have been prepared to provide general guidance for employers in connection with the 2019 novel coronavirus/COVID-19.

    This guidance is current as of March 16, 2020. Legislation titled the Families First Coronavirus Response Act will alter these FAQs. However, this legislation is pending, and could be significantly revised before it passes. Assuming it passes, the current version indicates it will take effect 15 days after enactment. We are actively monitoring the pending legislation and will be prepared to communicate how this impacts you once more is known.

    GENERAL INFORMATION

    1.  Where can I find information about COVID-19?

    A: The Centers for Disease Control and Prevention (CDC), the U.S. Occupational Safety and Health Administration and the World Health Organization have created dedicated webpages with information on COVID-19.

    In addition, state and local health officials are developing guidelines and resources on the illness. Check your state and local Department of Health for additional information.

    EMPLOYEE TESTS POSITIVE – WHAT NOW?

    2.  What should I do if an employee informs me they have COVID-19? Should I tell co-workers?

    A: If an employee is confirmed to have COVID-19, employers should inform other employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality (that is, don't reveal who has the illness). Employers should treat all information about an employee's illness as a confidential medical record and keep it separate from the employee's personnel file.

    As a precautionary measure, you may want to consider asking all employees who worked closely with that employee to self-quarantine for a 14-day period of time to better ensure that the infection does not spread.  In addition, as a best practice, you may want to consider asking a cleaning company to complete a deep cleaning of your workspace.  If you work in a shared office building or area, then you may want to inform management so they can take any necessary precautions.

    Employers should also immediately contact local health officials for further guidance.  However, there is no obligation on the part of the employer to report it to the CDC.  The healthcare provider that diagnosed the individual holds that responsibility.

    WORKPLACE SAFETY

    3.  What is the risk of contracting COVID-19 in the workplace?

    A: According to health officials, the risk of contracting COVID-19 in most jobs generally remains low in the United States. The CDC regularly conducts risk assessments, and as of March 11, 2020:

    ·        For most of the American public, the immediate health risk is considered low.

    ·        People in communities where ongoing community spread has been reported are at elevated risk of exposure.

    ·        Healthcare workers caring for patients with COVID-19 and close contacts of persons with COVID-19 are at elevated risk of exposure.

    ·        Travelers returning from affected international locations (China, Iran, Italy, Japan and South Korea), where community spread is occurring also are at elevated risk of exposure.
     

    ·        Travelers on cruise ships are at an elevated risk of exposure.

    4.  What can I do to help prevent the spread of COVID-19 in my workplace?

    A: Health officials recommend reminding employees of the importance of:

    ·        Washing hands often with soap and warm water for at least 20 seconds.

    ·        Avoiding touching your eyes, nose, and mouth.

    ·        Cleaning things that are frequently touched (like doorknobs and countertops) with household cleaning spray or wipes.

    ·        Covering coughs and sneezes with a tissue or the inside of the elbow.

    ·        Staying home when feeling sick. You can help encourage employees to stay home when they're sick by reminding them of your paid (or unpaid) leave program. Consider reviewing and revising your sick policy and procedures for flexibility. At a minimum, ensure that your policy is consistent with current public health recommendations and existing federal, state, and local laws. Be clear on any notice requirements for absences and enforce rules consistently.
     

    Note: Depending on the circumstances, employers may be required to provide job-protected time off to employees under federal, state, and/or local disability and/or leave laws.

    Employers can help employees practice healthy habits by providing tissues, no-touch trash cans, hand soap and sanitizer, and disposable towels. Routinely clean all frequently touched surfaces, such as workstations, countertops, and doorknobs.

    5.  All of my employees touch the timeclock, how can I clean it?

    A: As a rule of thumb, timeclocks can be cleaned the same way any sensitive optical equipment like a camera would be. There are also information on alternative methods for using the ADP Biometric and Pin entry timeclocks.

    EMPLOYEE TRAVEL

    6. May employers ask employees about travel by cruise ship and/or geographic areas where they have traveled or intend to travel?

    A: Yes, absent a claim that an employee has a recognized privacy interest in their travel activities.  Employers should take steps to reduce any reasonable expectation of privacy that employees might have in those activities.

    7. May employers bar asymptomatic employees from entering the workplace if they have traveled to designated WHO or CDC affected regions (including cruise ships and/or any other modes of transportation that WHO or CDC deems affected)?

    A: Yes, as long as employers act consistently based on travel activities and do not say or do things to suggest they believe such employees actually have a physical or mental impairment, such steps should not violate the Americans with Disabilities Act or other federal, state or local EEO laws.  Employers must remember that states and localities may provide greater protections than federal law.

    8. May employers bar asymptomatic employees from entering the workplace if a household member has traveled to designated WHO or CDC affected regions (including cruise ships and/or any other modes of transportation that WHO or CDC deems affected)?

    A: Yes, given the close contact ordinarily experienced by household members, employers usually would be justified in barring employees from entering the workplace in these circumstances. 

    9. May employers require asymptomatic employees who have traveled to affected regions (including cruise ships and/or any other modes of transportation that WHO or CDC deems affected) or had close contact with such individuals remain at home for the presumed 14-day incubation period?

    A: Yes.

    10.  Can I ask employees to notify me if they've come in contact with someone who has COVID-19?

    A: Employers may ask employees to notify them if they have been in contact with someone who has COVID-19. If the an employee reports contact with someone who has COVID-19, direct the employee to the CDC's guidance for how to conduct a risk assessment of their potential exposure to assess whether they are low, medium or high-risk.

    EMPLOYEE HEALTH / PRIVACY

    11.  May employers require employees who have been asked to remain home due to COVID-19 infection concerns to provide notes from healthcare providers confirming they are capable of returning to work?

    A: If employers do not require disclosure of medical information, they likely can require notes confirming employees are capable of returning to work without violating the Americans with Disabilities Act because the request would not be disability related.  If employers sought information that was found to be a disability-related inquiry under the ADA, we currently anticipate it likely would be justified under the ADA standards for disability-related inquiries of employees.  As a practical matter, however, public health authorities have warned that doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Previously, the EEOC has suggested employers consider new approaches to obtaining fitness for duty information, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.

    12.  May employers require employees confirmed for COVID-19 infection to test negative for COVID-19 infection before they return to work?

    A: Yes, such inquiries should satisfy ADA standards for disability-related inquiries or medical examinations, however, as a practical matter, testing capacity may be limited and employers may need to consider other reliable methods to certify that an individual does not have the pandemic virus.  Employers must also remember that states and localities may provide greater protections than federal law. 

    13.  May employers ask employees if they have symptoms of COVID-19 infection?

    A: The EEOC has not provided clear guidance on this question.  What is clear that any disability-related inquiry must be job-related and consistent with business necessity under the ADA.  With very limited exceptions not likely applicable for most employers implementing COVID-19 infection control procedures, this requires some individualized basis to be concern that a specific employee may not be able to perform essential job functions safely or successfully.  If an employer had some individualized basis for asking a specific employee whether he/she had symptoms of COVID-19 infection, then it may be justified under ADA standards.  Absent individualized fact-based concerns, there is greater risk to asking all employees whether they have symptoms of COVID-19 infection. We expect some employers, such as healthcare employers, may have a more persuasive argument that asking all employees if they have symptoms of COVID-19 infection is permitted under the ADA. In its 2009 Guidance on Pandemics, the EEOC also drew a distinction based on the stage and severity of pandemics. In responding to question as to whether an employer could measure an employee’s body temperature during a pandemic, the EEOC stated that “if pandemic influenza symptoms become more severe than the seasonal flu or the H1N1 virus in the spring/summer of 2009, or if pandemic influenza becomes widespread in the community as assessed by state or local health authorities or the CDC, then employers may measure employees’ body temperature.” According to the EEOC, measuring an employee’s body temperature is an ADA medical examination.  Therefore, even if asking an employee if they have symptoms of COVID-19 infection were determined to be a disability-related inquiry, it should be lawful under the ADA if the pandemic is more severe than seasonal flu.  The EEOC noted in its 2009 Pandemic Guidance that employers should be aware that some people with influenza, including the 2009 H1N1 virus, do not have a fever.  The same has been reported for COVID-19 infections.

    14.  May employers send employees home if they develop symptoms of COVID-19 infection?

    A: Yes.  An employer never has to allow a sick employee to remain at work.  The CDC states that employees who become ill with symptoms of influenza-like illness at work during a pandemic should leave the workplace.  The EEOC has stated that advising such workers to go home is not a disability-related action if the illness is akin to seasonal influenza or the 2009 spring/summer H1N1 virus. Additionally, the EEOC has stated that such actions would be permitted under the ADA if the illness were serious enough to pose a direct threat.

    15.  Can I take an employee's temperature? Can I require employees to get tested for COVID-19?

    A: Generally, both would be considered a medical examination and subject to the rules of the federal Americans with Disabilities Act (ADA) and similar state laws. Under the federal ADA, medical examinations of current employees are prohibited unless they're job-related and a business necessity. This means that the employer must have a reasonable belief based on objective evidence that:

    ·        An employee will be unable to perform the essential functions of their job because of a medical condition; or

    ·        The employee will pose a direct threat because of a medical condition that cannot otherwise be eliminated or reduced by reasonable accommodation. In the past, the Equal Employment Opportunity Commission has said that this exception could apply if the illness is more severe than seasonal flu or a pandemic has been declared in the United States and becomes widespread as assessed by health authorities. 

    Assessments of whether an employee poses a direct threat in the workplace must be based on objective, factual information. Employers are expected to make their best efforts to obtain public health advice that is appropriate for their location, and to make reasonable assessments of their workplace conditions based on this information.

    EMPLOYEE REFUSAL TO COME TO WORK

    16.  Can I stop my employees from going home because they fear they will become exposed while at work?

    A: Employees who refuse to work may have protections from adverse action. For example, under the Occupational Safety and Health Act, employees may have the right to refuse to work if all of the following conditions are met:

    ·        Where possible, they have asked the employer to eliminate the danger, and the employer failed to do so;

    ·        They genuinely believe that an imminent danger exists;

    ·        A reasonable person would agree that there is a real danger of death or serious injury; and

    ·        There isn't enough time, due to the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection.

    Section 7 of the National Labor Relations Act (NLRA), which grants employees the right to act together to improve wages and working conditions, may also come into play in this situation.

    If employees express apprehension about working and the risk of contracting the illness remains low, employers can try to reassure them by discussing the measures the company has taken to protect employees, referring to information from public health officials about the risks of workplace exposure, and suggesting ways they can help further reduce the possibility of exposure. You may also want to consider offering the option of working from home if possible, a flexible schedule so they can limit contact with others, and/or paid or unpaid leave.

    Note: If an employee has an underlying condition that would qualify as a disability, they may be entitled to a reasonable accommodation under the ADA and/or similar state laws. Paid or unpaid leave may be considered a reasonable accommodation.

    FACE MASKS AT WORK

    17.  Should employees wear a face mask to work?

    A: OSHA regulations for personal protective equipment (PPE) and respiratory protection require employers to assess the hazards to which their workers may be exposed when determining whether to require PPE. In this context, consider whether your workers may encounter someone infected with COVID-19 in the course of their job duties, or whether they may come into contact with worksites or materials (such as, laboratory samples, waste) contaminated with the virus.

    Keep in mind that there are key differences between respirators and the facemasks you see people often wear on the street during outbreaks. A respirator reduces exposure to airborne particles, is tight-fitting, and filters out at least 95 percent of particles in the air. Respirators, including those intended for use in healthcare settings, are certified by the CDC/NIOSH. By contrast, most facemasks do not effectively filter small particles from the air and don't prevent leakage around the edge of the mask, so they can't be relied upon to protect workers against airborne infectious agents. However, the CDC does recommend that individuals with a confirmed or suspected case of COVID-19 wear a facemask until they are isolated at home or in a hospital.

    VISITORS

    18. May employers ask visitors to their business locations to disclose their travel activity, including geographic areas where they have traveled and/or mode of transportation, before authorizing their entry to their premises?

    A: Yes, absent a claim that visitors have recognized privacy interests in their travel activities, businesses may ask them if they have traveled to areas of concern.

    19. Does asking visitors to disclose their travel activity, including geographic areas where they have traveled and/or mode of transportation, trigger any privacy obligations?

    A: Yes, such requests may trigger notice of collection obligations under the California Consumer Privacy Act (CCPA) or similar obligations under other state privacy laws. If inquiries are made in Europe, GDPR obligations may be triggered.

    WAGE and HOUR

    20.  Must employers pay employees who are denied access to the workplace?

    A: Absent a contractual commitment to pay, including an applicable collective bargaining agreement, no federal law requires employers to pay non-exempt employees for time they do not actually work.  Federal or state wage hour laws may require exempt employees to be paid their regular salary if they are directed not to report to work.  For example, under federal law, if an exempt employee works any part of a workweek, and is then out sick for the remainder of the week (or quarantined), he should be paid for the entire week, though the employer may require him to use PTO for that paid time.  Some state or local laws may impose additional pay obligations for certain occupations, especially if employers provide little or no advance notice that employees are not to report to work as scheduled.]

    21.  If my business is forced to close, do I have to pay non-exempt employees?

    A: Non-exempt employees (those entitled to minimum wage and overtime) are paid only for "hours worked." Therefore, if non-exempt employees miss an entire day's work because you're closed and you didn't require them to report to work, you're generally under no obligation to pay them, unless you've promised otherwise. You can give employees the option of using any accrued paid time off for the time missed.

    22.  What about exempt employees? Would I have to pay them their full salary if we close?

    A: Exempt employees must generally receive their full salary in any workweek in which they perform work, regardless of the number of hours worked. If your company closes for less than a full workweek due to the virus, you must generally pay an exempt employee their full salary, as long as the employee worked any part of the workweek.

     23.  What if my company is forced to close early because of the virus. Do I have to pay non-exempt employees for the time they missed that day?

    A: If the company closes early, federal law doesn't require you to pay non-exempt employees for the missed time, unless you promised otherwise. However, you must pay these employees for any time they actually worked and for the time they stayed at work while you were making a decision to close. Note that some state laws require employers to pay employees for a minimum number of hours when they report to work but are sent home before the end of their scheduled shift. Check your applicable law for pay requirements when employees are required to report to work but are sent home early.

    24.  What if an employee is on a quarantine and cannot telecommute? Do I have to pay them during the quarantine?

    A: Employers should check applicable policies, collective bargaining agreements, and state and local paid leave laws to determine if pay is required. For example, federal or state wage and hour laws may require exempt employees to be paid their regular salary if they are directed not to report to work, unless it is in increments of a full workweek. Some state and local laws may impose additional pay obligations for certain occupations, especially if employers provide little or no advance notice that employees are not to report to work as scheduled. State and local paid leave laws may also require pay. Even in the absence of a requirement, some employers are electing to pay employees who are placed in quarantine and cannot telecommute.

    PAYROLL

    25.  How do we run payroll if everyone is remote?

    A: You can submit payroll from anywhere. Simply log on to the portal from your phone or computer, or use the ADP Mobile App to submit or make modifications to your payroll. Your Payroll Advisor can help evaluate payroll options for your company and provide you with support, such as:

    ·        Reviewing your scheduled payroll changes.

    ·        Redirecting your payroll delivery in advance to avoid a delay.

    ·        Helping to identify members of your team who do not have direct deposit.

    ·        Facilitating the set-up of direct deposit, Wisely Pay Card and iReports, as/if needed.

    ·        Help reschedule your payroll, if you need.

    Payroll - If your employees do not have a full electronic payment, we offer two ways to ensure they are paid regardless of any kind of delivery delay. We can expedite this set up for direct deposit and/or the Wisely Pay Card.
    Payroll Reports - Presented as PDFs, iReports allow you to quickly and easily analyze your data without printing.


     

    REMOTE WORK

    26.  What responsibilities do employers have to employees while they are working from home?

    A: For non-exempt employees, the employer should take steps to ensure that all work time is recorded and paid, as well as any overtime. We recommend that employers who anticipate having employees working from home for an extended period of time prepare a simple agreement for employees to sign acknowledging their understanding of the arrangement including the employee’s obligation to maintain a safe workspace as well as the temporary nature of the arrangement. Telecommuting arrangements should make clear that employees are expected to maintain safe conditions at the home office and to practice the same safety habits as he/she would in his/her office on the employer’s premise.  This is likely not practical or necessary for employees asked to work from home for only 14 days during an incubation period.  Employers should consult with their workers’ compensation carrier(s) to ensure that telecommuting employees fall with the policy’s coverage.  However, the telecommuting policies and/or agreements should state that the employer assumes no responsibility for injuries that occur in the employee’s home office outside the agreed upon “work hours.” The telecommuting policy should also state that the employer assumes no responsibility for injuries to third parties who may be present at the employee’s home office.  Employers should also determine what expenses they will reimburse in this situation. In some states, including California, employers are required to reimburse the employee for reasonable cost of any internet and phone service needed to perform work duties. There may also be tax implications of the employee working from home.

    27.  What other steps should employers take to ensure employees work effectively from home during a pandemic?

    A: Employers should ensure that the company’s IT infrastructure supports the employee(s) working from home and that the employee has the equipment, whether company-provided or personal as well as internet connection to perform all required work.  Employers should consider communicating to employees their general expectations including: (1) while working from home, the employee will still be expected to complete their work assignments, be available during regular business hours and communicate with their supervisor and others as needed; (2) the employee should continue to adhere to all Company policies; (3) the employer retains discretion to permit, or not permit or discontinue a telecommuting arrangement at any time; (4) employees are responsible for maintaining the confidentiality of all work-related information and follow the company’s confidentiality policies. These items can be covered in the agreement mentioned above.  Under these unique circumstances, employers may need to consider making their work from home arrangements more flexible than usual. For example, if employees are asked to work from home due to community spread of the virus, children are likely to home from school. 

    28.  What happens if schools close and employees need time off?

    A: Among the states and local jurisdictions that require employers to provide paid sick leave, many cover absences related to school closures that are ordered by health officials. Check your state and local laws for details. In the absence of a specific requirement, employers should consider offering paid and/or unpaid leave to these employees.

    29.  Do I have to allow employees to work from home?

    A: In general, employers aren't required to allow employees to work from home. However, telecommuting can help prevent the spread of the illness by allowing employees to work without exposing themselves or others to the virus. Therefore, you should consider telecommuting as an option for jobs that can be performed remotely.

    Note: Telecommuting may be considered a reasonable accommodation if a worker's condition qualifies as a disability under the ADA and/or similar state laws.

    WORKERS’ COMPENSATION

    30.  If employees claim COVID-19 infections arose out of work-related contacts, are such claims covered by workers’ compensation benefits?

    A: Workers compensation coverage may be available in connection with provable workplace exposures that lead to infection and COVID-19 disease, but will depend on state law. This may provide some protection for employers concerned about potential liability and damages.  However, where there is wide-spread community spread of the virus, it may be difficult if not impossible to prove that the exposure that lead to infection occurred at work.

    31.  Does my workers’ compensation policy cover employees working from home? 

    A: In general, an employee injury or illness is compensable under workers’ compensation if it arises out of and in the course of employment, regardless of the location the injury occurs. Employees typically have the burden of proving that the injury is work-related. “Arising out of” refers to what the employee was doing at the time of the injury, and “in the course of” refers to when the injury happened. To successfully claim workers’ compensation benefits, the employee must show that he or she was acting in the interest of the employer at the time the injury occurred.  Workers’ compensation laws vary by state, and employers are encouraged to work with their workers’ compensation carriers as well as their legal counsel to determine strategies to manage workers’ compensation risks for their telecommuters.

    32.  I have an associate showing potential symptoms of the Coronavirus, should I report this as a workers’ compensation claim?

    A: If you feel that the sickness could be considered work related, please report through your normal workers’ compensation claims reporting procedures.  Your carrier will investigate the claim and determine compensability.  Workers compensation coverage may be available in connection with provable workplace exposures that lead to infection and COVID-19 disease, but will depend on state law. This may provide some protection for employers concerned about potential liability and damages. However, where there is wide-spread community spread of the virus, it may be difficult if not impossible to prove that the exposure that lead to infection occurred at work.

    33.  I have an associate that has tested positive for the Coronavirus, should I report this as a workers’ compensation claim?

    A: If you feel that the sickness could be considered work related, please report through your normal workers’ compensation claims reporting procedures.  Your carrier will investigate the claim and determine compensability.  Workers compensation coverage may be available in connection with provable workplace exposures that lead to infection and COVID-19 disease, but will depend on state law. This may provide some protection for employers concerned about potential liability and damages. However, where there is wide-spread community spread of the virus, it may be difficult if not impossible to prove that the exposure that lead to infection occurred at work.

    EMPLOYEE LEAVE

    34.  Does federal FMLA cover employees who are directed to work remotely?

    A: No, if employees are working remotely, there is no basis to classify them as on leave, FMLA or otherwise.

    35.  Does federal FMLA cover employees who are directed to remain out of work but are unable to work remotely?

    A: No, the federal FMLA would not cover this situation, however, some state or local leave laws provide leave in cases of public health emergencies.

    36.  What benefits may be available to employees who are unable to work due to illness during a pandemic?

    A: If eligible, federal FMLA likely would cover these absences.  State or local leave laws, company paid time and leave policies also might cover these absences.  It is unclear whether the ADA or analogous state or local disability discrimination laws would provide protections in these instances.  Please remember to check guidance for California employees.

     

    WARN ACT/MASS LAYOFFS

    37.  Do I have to provide notice under the WARN Act if I have to layoff employees due to the effects of the coronavirus on my business?

    If you are a covered employer under the Worker Adjustment and Retraining Notification (WARN) Act and there is a triggering event such as a “plant closing” or “mass layoff”, then you must abide by the WARN Act’s notice requirements.  There may also be additional notice requirements if employees work in a state that have “mini-WARN” laws.  With that said, under the WARN Act, there is a specific limited exception when layoffs occur due to unforeseeable business circumstances.  This may apply to the effects of the coronavirus on your business but it is by no means guaranteed.  There is a fact specific analysis that must be undertaken, and we would suggest partnering with legal counsel for a complete assessment.