According to the Center for Disease Control and Prevention (CDC) a pandemic is “an epidemic that has spread over several countries or continents, usually affecting a large number of people.” An epidemic, per the CDC, is “an increase, often sudden, in the number of cases of a disease above what is normally expected in that population in that area.”

• Consult the official governmental websites for the cities, counties, and states where the employer conducts business in order to monitor the latest actions and recommendations.
• Consult the websites for applicable state and local health departments and state workforce commissions.
• Monitor the CDC’s Workplaces and Businesses website. 
• The Occupational Safety and Health Administration (OSHA) maintains a webpage with the latest OSHA agency guidance. On January 29, 2021, OSHA published Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace, and this Guidance was updated on June 10, 2021. On June 10, 2021, OSHA announced issuance of an Emergency Temporary Standard (ETS). Effective June 21, 2021, the ETS applies only to “healthcare services and healthcare support services,” subject to certain exceptions (including telehealth services and dispensing prescriptions by pharmacists in a retail setting). OSHA also has a Non-ETS Frequently Asked Questions webpage, which is found here.
• The Equal Employment Opportunity Commission (EEOC) has issued guidance on What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. 
• Additional EEOC guidance, Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, was updated in March 2020 to specifically address the COVID-19 pandemic.
• The Department of Labor (DOL) has prepared several fact sheets, Questions and Answers, and posters relating to the Families First Coronavirus Response Act (FFCRA).
• The Wage and Hour Division of the DOL published a Question and Answer document regarding COVID-19 and the Fair Labor Standards Act (FLSA).
• The National Labor Relations Board (NLRB) has announcements and guidance documents within its usual news feed.
• For companies operating in California, the California Labor & Workforce Development Agency (LWDA) and the California Department of Industrial Relations (DIR) developed a website that contains consolidated resources regarding COVID-19. 
• United States Citizenship and Immigration Services (USCIS) has created a USCIS Response to COVID-19 page to detail how the COVID-19 pandemic has affected the agency’s operations and how it has responded.
• Employers and foreign national employees should consult the Department of State website and the visa application site for the latest information on the status of visa processing at U.S. Embassies and Consulates abroad, appointment wait times, and other visa processing details.

Updated 09.30.2021

Federal, state, and local laws govern many of the actions an employer may take in response to the COVID-19 pandemic. Some of the considerations include:

• Federal and state health and safety laws, such as standards set by OSHA and similar state-specific plans.
• Discrimination and leave laws, including the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act (ADA), the Rehabilitation Act, the FFCRA, and specific state and local anti-discrimination and leave statutes. Some jurisdictions are implementing COVID-19-specific laws regarding paid time off. 
• Federal and state worker notification laws related to layoffs and plant closures, such as the Worker Adjustment and Retraining Notification (WARN) Act and similar state statutes.
• Federal and state privacy laws.
• Federal immigration laws.
• Federal and state wage-and-hour laws, such as the Fair Labor Standards Act (FLSA) and similar state statutes.

Updated 05.08.2020

On June 10, 2021, OSHA announced issuance of an Emergency Temporary Standard (ETS). Effective June 21, 2021, the ETS applies only to “healthcare services and healthcare support services,” subject to certain exceptions (including telehealth services and dispensing prescriptions by pharmacists in a retail setting). Under the ETS, employers must develop and implement a COVID-19 plan for each workplace. The ETS refers employers to OSHA materials for purposes of developing a COVID-19 plan. If the employer has more than 10 employees, the plan must be in writing. Employers must designate one or more workplace safety coordinators to implement and monitor the plan, and the coordinator(s) must be knowledgeable about infection control principles and practices.

The ETS further requires employers to conduct a workplace-specific hazard assessment to identify potential COVID-19 risks. Employers must seek input and involvement from nonmanagerial employees and their representatives in connection with this assessment, and the COVID-19 plan must address any hazards that are identified. Employers must monitor each workplace to ensure ongoing effectiveness of the plan and update it if needed.

In settings where direct patient care is provided, the employer must limit and monitor points of entry, screen and triage all individuals who enter the setting (patients, visitors, delivery people, etc.), and implement other applicable patient management strategies in accordance with CDC guidance. 

Employers also must provide face masks and ensure that each employee is properly wearing a mask when indoors, subject to certain exceptions (e.g., while eating or drinking, as long as social distancing is observed, or due to medical necessity). Certain PPE (e.g., respirators and gloves) must be provided to employees who are exposed to a person with suspected or confirmed COVID-19. Employers must limit the number of employees present during aerosol-generating procedures on a patient with a suspected or confirmed COVID-19 diagnosis.

Employees must ensure physical distancing of six feet where feasible. Employers must install physical barriers at fixed work locations where feasible, clean and disinfect areas in accordance with CDC guidance, and ensure that there is proper ventilation (applicable only to employers who own the building).

Employers must screen all employees before each shift, which can be accomplished by asking employees to self-monitor. If a COVID-19 test is required, the employer must provide the test to the employee at no cost. Employers must require employees to notify the employer if the employee has a suspected or positive COVID-19 diagnosis or is experiencing certain COVID-19 symptoms (e.g., loss or taste or smell, cough, fever over 100.4°). Employers must immediately remove an employee with COVID-19 symptoms or diagnosis from the workplace and notify employees who had close contact with the infected employee. The employer must continue to provide benefits to the removed employee and compensate them at their regular rate of pay, up to $1,400 per week, until the employee returns. For employers with fewer than 500 employees, this amount is reduced beginning the third week of removal.

Employers must support vaccination for each employee and provide training on COVID-19.

The ETS also imposes recordkeeping requirements relating to the employer’s COVID-19 plan and COVID-19 cases in the workplace.

The ETS specifically cites to the CDC’s May 2021 guidance, which relaxed recommendations for vaccinated individuals to wear masks, as a factor to justify many of the ETS provisions. The CDC issued new guidance in July 2021 recommending Americans “wear a mask indoors if you are in an area of substantial or high transmission.”

In August 2021, OSHA updated its COVID-19 Healthcare ETS webpage to specifically address the changing CDC guidance on masking. Based on OSHA’s review of the latest guidance, science and data on COVID-19, OSHA has determined that “no changes to the ETS are necessary at this time, but the agency will continue to monitor and assess the need for changes each month.” OSHA’s full statement can be found here.

Additional OSHA regulations mandating vaccines are anticipated but are not yet in place. Per President Biden’s announcement on September 9, 2021, OSHA is developing a rule to require all employers with 100 or more employees to ensure their workforce is fully vaccinated and require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. OSHA has stated that it will implement the requirement through an additional ETS that is expected in the coming weeks. The president directed OSHA to include in this new ETS a requirement that employers provide paid time for employees to receive and recover from the vaccine.

Updated 09.24.2021

On June 10, 2021, OSHA issued guidance for employers who are not subject to the Emergency Temporary Standard, which is applicable to healthcare services. The updated guidance states that most employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at risk from COVID-19 exposure (unless otherwise required by state, local, tribal, or territorial law). The guidance focuses on protecting unvaccinated or otherwise at-risk workers.

The guidance encourages employers to take steps to make it easier for employees to get vaccinated. For workers who are not vaccinated or at risk, OSHA recommends implementing physical distancing, maintaining ventilation systems, and properly using face coverings. Employers should instruct all employees with COVID-19 symptoms to stay home from work.

On August 13, 2021, OSHA updated this guidance to adopt recommendations recently issued by the CDC. Based on evidence of breakthrough infections in fully vaccinated people, the CDC now recommends that fully vaccinated people (1) wear a mask in public indoor settings in areas of substantial or high transmission; (2) wear a mask regardless of level of transmission if individuals are at risk or have someone in their household who is at increased risk of severe disease or is not fully vaccinated; and (3) get tested 3-5 days following a known exposure to someone with suspected or confirmed COVID-19 and wear a mask in public settings for 14 days following exposure or until a negative test result.

Updated 08.20.2021

Yes; however, whether employers implement a remote work policy likely depends on many factors, including the nature of the employer’s business and what makes sense for the employees. In creating a remote work policy, employers should not single out employees—whether to telework or to continue reporting to the workplace—based on characteristics protected under federal, state, and local anti-discrimination laws.

Employers should also be aware of state tax issues related to their remote workforce, including potential tax withholding obligations. Employers with questions should contact their tax advisors or legal counsel.

Finally, if an employee is working remotely and moves to a new state, even for a short period of time, this may implicate a number of legal considerations in addition to taxes, such as labor laws in the new state. Employers with questions should work with counsel.

Updated 03.05.2021

The Department of Labor advises that employers cannot require employees who are covered by the Fair Labor Standards Act (FLSA) to pay for, or reimburse an employer for, items that constitute business expenses of the employer if this would reduce an employee’s earnings below the requisite minimum wage or overtime. The Department of Labor also indicates that if an employer, for example, provides an employee a computer or pays for an additional phone line for the employee’s home, the employer cannot require the employee to reimburse it for these costs if doing so would reduce the employee’s earnings below the required federal minimum wage or overtime that is due in any workweek. Moreover, employers cannot require employees to pay or reimburse for items if a remote work arrangement is provided as a reasonable accommodation to a qualified individual with a disability. Employers should review state and local laws, as some may require the reimbursement of employment-related expenses.

Updated 05.03.2021

No; a remote work arrangement does not in and of itself change how an employee should be compensated. Hourly, non-exempt employees should track their time working at home as if they reported to work, and the employer should pay the employees accordingly. If an employee works overtime, the employee should be compensated for the overtime hours performed. Exempt employees should be paid if they perform any work during a workweek regardless of whether the work is performed at an office or remotely.

Please note that state and local laws may differ. If an employee is working remotely and moves to a new state, even for a short period of time, this may implicate labor laws in that state, tax obligations, and other legal issues. Employers with questions should contact counsel.

UPDATED 03.05.2021

Employers with remote workers generally need to register and withhold income tax in the state in which their employees are working. However, a small number of states (New York being the most prominent) use a “convenience of the employer rule,” which generally assigns compensation from remote work to the employer’s office location unless the employee is working remotely for the convenience of the employer or the remote worker’s home office is a bona fide employer office. During the COVID-19 emergency, several states have issued guidance temporarily requiring or permitting employers to withhold state income tax at the employer’s location rather than the remote worker’s location.

Unlike state income tax withholding, state unemployment insurance taxes and most other state payroll taxes are designed so that only one state’s law covers an employee’s multistate service for an employer. Employers’ state unemployment and other payroll tax obligations generally follow a four-part “localization of work” test initially established by the U.S. Department of Labor. Under this test, the employer must first determine whether an employee’s service is “localized” in a state. An employee’s service is localized in a state if the employee’s service is performed entirely in one state or if the employee’s service is performed in more than one state but the service in other states is incidental to the employee’s service. If the employee’s service is not localized in a state, the employee’s service is attributed to a state under a cascading series of alternative rules that look to the employee’s “base of operations,” the location from which the employee is directed and controlled, and the employee’s state of residence.

State income tax withholding and state payroll tax obligations vary significantly by state. Employers with questions should contact their tax advisors or legal counsel.

Updated 09.24.2021

The presence of an employee in a state or local taxing jurisdiction is generally sufficient to create tax nexus with that jurisdiction and may give rise to obligations to register and pay various business taxes (e.g., income, franchise, or gross receipts taxes). The extent of those taxes will depend on the jurisdiction and each employer's facts. Some states have advised that employees working remotely in their state because of state emergency orders or declarations related to COVID-19 will not create tax nexus for the employer. These protections are generally limited and temporary. Employers with questions should contact their tax advisors or legal counsel.

Employers must compensate employees for all hours worked remotely, including overtime, in accordance with the FLSA or any applicable state law, so long as the employer knew or had reason to believe the employee performed the work. Thus, according to the DOL, even if an employee worked hours that were not authorized, the employer must still compensate for this time. The DOL makes clear that “[i]t is an employer’s obligation to exercise control to prevent unwanted work from being performed.” The DOL also explains that in most cases, an employer can satisfy its obligation to compensate employees who are working remotely by providing a reasonable time-reporting procedure and paying the employee for all reported hours. However, an employer is not required to pay an employee for time worked remotely that is unreported if the employer neither knew nor should have known about the work. On August 24, 2020, the DOL issued Field Assistance Bulletin No. 2020-5 that also addressed when employers needed to pay non-exempt employees who work remotely at locations not controlled by the employer. State wage-and-hour laws may vary.

UPDATED 05.03.2021

The DOL addresses a similar issue in its frequently asked questions regarding the FLSA. Pursuant to the FLSA, an employer generally must pay employees only for hours they actually work, regardless of whether that is in the office or at home. If an employee is completely relieved of duty and the period is long enough to enable the employee to “use the time effectively for her own purposes” then these hours “are considered ‘off duty’ time and are not hours worked.” The DOL explains that this principle applies whether a schedule is agreed upon in advance or if the employer permits flexibility to choose hours that the employee will take off to, for example, care for a child. Accordingly, employers are not required to count the hours in the middle of a workday that an employee uses to take care of personal or family obligations as hours worked. State wage and hour laws may vary.

Updated 08.13.2021

The Department of Labor, through its COVID-19 and the Fair Labor Standards Act Questions and Answers, makes clear that “[t]he Department of Labor’s Occupational Safety and Health Administration (OSHA) does not have any regulations regarding telework in home offices.” OSHA issued a directive in February 2000 stating that it will not inspect—and does not expect employers to inspect—the home offices of employees. The agency also will not hold employers liable for employees’ home offices. The Department of Labor also clarifies that “[i]f OSHA receives a complaint about a home office, the complainant will be advised of OSHA’s policy. If an employee makes a specific request, OSHA may informally let employers know of complaints about home office conditions but will not follow-up with the employer or employee.”

Employers are also required to record work-related injuries and illnesses and continue to be responsible for keeping such records, regardless of whether such injuries or illnesses occur while an employee is working from home or at a company facility. Any confirmed cases of COVID-19 that occur at an employee’s home, are work-related, and involve one or more of the general recording criteria set forth in 29 CFR 1904.7 (e.g., medical treatment beyond first aid, or days away from work) should be recorded on the OSHA 300 log of the establishment with which the employee is associated.

Employers should monitor state and local laws, which may have different and/or additional requirements related to health and safety for remote work.

UPDATED 05.03.2021

See response to Q. 68.

According to updated guidance from the EEOC, if staff need to know how to contact the employee, and the employee is not working at the workplace, the employer is permitted to inform staff that the employee is teleworking. However, the employer should not disclose the reason the employee is teleworking.

Updated 08.13.2021

A remote work arrangement may be a reasonable accommodation, depending on various factors, including, but not limited to, whether the employee has a disability, the nature of the work that the employee performs, and any undue hardship to the employer. See the Reasonable Accommodations section for additional information.

UPDATED 07.28.2021

The method used by businesses to reopen for in-person work will vary based on a number of factors, including industry and location. Regardless, all employers should consider creating a comprehensive plan to distribute to employees that explains the company’s process for transitioning employees back to work. The plan should communicate, among other things, all safety measures the company will implement, practices and/or processes employees must follow, and any requirements or guidance related to vaccinations.

Employers should consider the impact on their workforce of returning to a physical worksite. In some instances, a phased approach may make sense. For example, employees who have been working remotely might return to the office gradually, a few times a week, to adjust before returning full time. In other cases, employers may prefer to bring back employees in certain job classifications or departments first, before returning all remaining employees. In all circumstances, employers should maintain a consistent dialogue with employees and be available to answer the many questions employees will have regarding returning to work. Employers should use neutral criteria to determine how employees who have been working remotely return to the physical worksite.

UPDATED 04.02.2021

When considering how to return employees who have been working remotely back to working in an office, a phased approach may make sense. However, the factors used for selecting who will return, when, and how must be nondiscriminatory. Employers could choose, for example, that certain job classifications or departments come back to the physical worksite before others. However, making selections based on protected categories, such as age, race, ethnicity, or gender, is discriminatory and should not be used in creating a plan for returning to the physical worksite.

UPDATED 04.02.2021

After the pandemic, employees who have been working remotely may be reluctant to return to the physical worksite. However, as states, cities, and counties begin to fully reopen and vaccines become more readily available, employers can institute policies that require employees who have been working remotely to return to the office. Unless a disability statute or similar regulation obligates an employer to consider a request for remote work as part of a reasonable accommodation, employers are not required to permit employees who have been working remotely to continue doing so indefinitely.

Employers should continue to monitor state, city, and county guidance regarding the opening of businesses as well as various obligations that require employers to maintain a safe working environment for employees.

UPDATED 04.02.2021

Likely, yes. However, there are various factors to consider. Best practice would be to issue communications to employees letting them know that if they relocated during the pandemic, they should keep the company apprised of their move. This is especially the case if employees have moved to a different state, as taxes and various other legal obligations may be implicated. Employers should consider policy statements prohibiting relocation to states where they are not already authorized to do business. Employers also should review communications and agreements they have made permitting employees to telework. Ideally, all teleworking arrangements will include language that gives the employer the ability to terminate a teleworking arrangement and/or communicate that the agreement is temporary. Unless the company has formally agreed to allow an employee to relocate, employees should be informed that when the company chooses to bring employees back to the physical worksite, they will be required to return to their prior office location.

UPDATED 04.02.2021

As states, cities, and counties begin to reopen, many employers will begin reopening their physical worksites and asking employees to return to work at the worksite. If an employee refuses the employer’s request to return to the worksite, the employer should discuss the employee’s concerns. If there is a medical or disability-related concern, a reasonable accommodation may be appropriate depending upon the circumstances. However, absent medical or disability-related concerns, and assuming there is no conflicting state, city, or county guidance, employers can likely discipline, or even terminate, employees who refuse directives to return to the physical worksite. (Note that caution is required in the event an objecting employee engages in protected activity by alleging their refusal to return is warranted by violations of applicable laws or health and safety standards in the workplace, as this could lead to a retaliation claim.)

Notwithstanding the considerations just mentioned, employers should recognize that employees may continue to face child care issues or other challenges that make returning to the physical worksite more difficult. An open, continuing dialogue with employees remains important. It also is advisable to give employees advance notice so that they can manage any personal issues they need to resolve before the anticipated date of returning to a physical worksite.

UPDATED 04.02.2021

No. According to the EEOC guidance, “[i]f there is no disability-related limitation that requires teleworking, then the employer does not have to provide telework as an accommodation. Or, if there is a disability-related limitation but the employer can effectively address the need with another form of reasonable accommodation at the workplace, then the employer can choose that alternative to telework.” Moreover, if an employer is permitting telework because of COVID-19 and choosing to excuse employees from performing one or more essential functions, once an employer reopens the workplace, the employer is not required to grant teleworking as a reasonable accommodation if it requires the employer to continue to excuse the employee from performing essential functions of the position.

Finally, just because an employer temporarily excused performance of an essential function of a job when the workplace was closed does not mean that the employer has permanently altered a job’s essential functions, that telework is always feasible, or that telework does not pose an undue hardship. Ultimately, the EEOC advises that these are going to be “fact-specific determinations” and the employer “has no obligation under the ADA to refrain from restoring all of an employee’s essential duties at such time as it chooses to restore the prior work arrangement, and then evaluating any requests for continued or new accommodations under the usual ADA rules.”

Employers should review state or local law to confirm that a different analysis does not apply.

UPDATED 09.11.2020

The EEOC addressed a similar question in its updated guidance from September 8, 2020. The EEOC explained that if an employer wants to ask only a specific employee questions designed to determine if the employee has COVID-19, or the employer wants to ask that employee to undergo a temperature check or other screening, “the ADA requires the employer to have a reasonable belief based on objective evidence that this person might have the disease.” In such instances, the EEOC explains that the employer should evaluate the reasons it would be taking such action with respect to the specific employee. 

Regardless, employers should tread cautiously in treating employees differently regarding questions asked and tests utilized. Inconsistent treatment can lead to discrimination claims under federal, state, or local law that are separate from the ADA. Employers should discuss these issues with counsel before proceeding.

Updated 09.11.2020

Yes. Employers may ask returning employees if they are experiencing symptoms of COVID-19, including fever, chills, cough, shortness of breath, or sore throat. The CDC also recommends that employers should focus the screening questions on “new” or “unexpected” symptoms, as opposed to chronic conditions or symptoms that the employee has frequently experienced, even prior to the COVID-19 pandemic. Employers should monitor CDC guidance for additional listed symptoms such as sudden loss of smell or taste, nausea, vomiting, diarrhea, and muscle pain.

The EEOC has also reaffirmed that employers may ask employees who work on-site, and who report feeling ill or call in sick, questions about their symptoms as part of the employer’s workplace screening for COVID-19.

Note that the CDC stopped updating its General Business Frequently Asked Questions, and this response is based on the last information provided by the CDC for businesses (last updated May 24, 2021). Although the CDC is no longer updating this webpage, its guidance with respect to this particular issue has not come into conflict with any recent CDC guidance or other federal agency guidance.

Updated 08.11.2021

The EEOC addressed this topic in its updated guidance from September 8, 2020. Such a question is not permissible. The Genetic Information Nondiscrimination Act (GINA) precludes an employer from asking employees medical questions about their family members. However, employers do not run afoul of GINA by asking employees whether they have had contact with anyone diagnosed with COVID-19 or anyone having symptoms associated with COVID-19.

See Q. 27 below for more information on conducting daily in-person or virtual health checks.

Updated 09.11.2020

Yes, and some jurisdictions may require employers to do so. The EEOC has stated that employers may measure and maintain a log of employees’ body temperature (keeping in mind that some people with COVID-19 do not have fevers, and following recommended protocols for employee privacy). The CDC also provides that conducting temperature screenings is an optional strategy for employers to use and sets forth protocols for conducting these screenings. The CDC cautions, however, that conducting temperature checks “will not be completely effective because asymptomatic individuals or individuals with mild non-specific symptoms may not realize they are infected and may pass through screening. Screening and health checks are not a replacement for other protective measures such as social distancing.” 

If maintaining records of employee symptoms or diagnoses, employers must treat them as confidential medical records in compliance with the Americans with Disabilities Act.

Note that the CDC stopped updating its General Business Frequently Asked Questions, and this response is based on the last information provided by the CDC for businesses (last updated May 24, 2021). Although the CDC is no longer updating this webpage, its guidance with respect to this particular issue has not come into conflict with any recent CDC guidance or other federal agency guidance.

Updated 12.04.2020

Yes, and in certain jurisdictions, it may be required. According to the CDC, employers may consider conducting daily in-person or virtual health checks before an employee enters the work facility; however, these should be conducted in accordance with state and local public health authorities and, if available, the employer’s occupational health services. The CDC cautions, however, that conducting health checks “will not be completely effective because asymptomatic individuals or individuals with mild non-specific symptoms may not realize they are infected and may pass through screening. Screening and health checks are not a replacement for other protective measures such as social distancing.”

When implementing health checks, the CDC advises employers to encourage individuals to self-screen before coming on site and to stay home if the individuals meet any of the following criteria:

• Exhibit symptoms of COVID-19
• Have a fever equal to or higher than 100.4°F
• Are under evaluation for COVID-19 (for example, waiting for the results of a viral test to confirm infection)
• Have been diagnosed with COVID-19 in the prior 10 days and are not yet cleared to discontinue isolation
• Have been in close contact with someone infected with COVID-19 during the prior 14 days

Employers may consider asking employees these same questions before they are permitted to come to the workplace. The CDC also recommends that employers should focus the screening questions on “new” or “unexpected” symptoms, as opposed to symptoms that the employee has frequently experienced, even prior to the COVID-19 pandemic.

The CDC also advises that if an employer is implementing in-person health checks, the checks should be conducted safely and respectfully. Employers should consider using social distancing, barriers or partition controls, or personal protective equipment (PPE) to protect the individual conducting the screenings. The CDC cautions that reliance on PPE alone is a less-effective control and more difficult to implement due to shortages relating to PPE and other training requirements.

Further, employers implementing health screens should follow the guidance from the EEOC as it pertains to confidentiality of medical information. Employers also should make certain that health screenings are as private as possible, and decisions about an individual’s risk should not be based upon protected characteristics such as race, age, or national origin.

Inevitably, conducting a health screen implicates a number of laws and considerations, including wage and hour considerations, privacy considerations, and OSHA considerations. The above represents guidance from the CDC but is not exhaustive of all the factors an employer should weigh in conducting health checks. Employers interested in implementing daily in-person or virtual health checks should consult with an attorney.

Note that the CDC stopped updating its General Business Frequently Asked Questions, and this response is based on the last information provided by the CDC for businesses (last updated May 24, 2021). Although the CDC is no longer updating this webpage, its guidance with respect to this particular issue has not come into conflict with any recent CDC guidance or other federal agency guidance.

Updated 01.14.2021

The EEOC addressed this question in its updated guidance issued on September 8, 2020. The EEOC explained that under the ADA as it relates to the current circumstances, employers are permitted to bar an employee from physically entering the workplace if the employee refuses to submit to a temperature check or refuses to answer questions about whether the employee has COVID-19, or has been tested for COVID-19. Even though the EEOC states that employers may bar employees from the worksite in these circumstances, the commission recommends asking employees why they refuse to cooperate and, based on the information obtained, the employer may be able to “provide information or reassurance that [the employer is] taking steps to ensure the safety of everyone in the workplace, and that these steps are consistent with health screening recommendations from the CDC.” The EEOC recognizes that some employees may be hesitant to participate for fear that the employer will spread the medical information throughout the workplace. The ADA, however, prohibits such disclosures and requires employers to maintain the confidentiality of employees’ medical information.

If an employee requests a reasonable accommodation in connection with the employer’s temperature checks and screening process, employers should follow the ordinary accommodation process, including, but not limited to, engaging in a good faith interactive process with the employee.

Employers should review state or local law to confirm that a different analysis does not apply.

Employers who exclude employees from the worksite should also consider whether state wage and hour laws require the employer to pay the employee for the time spent at the worksite prior to being sent home or reporting time.

Updated 09.18.2020

Yes. According to the EEOC, “[t]he ADA requires that any mandatory medical test of employees be ‘job related and consistent with business necessity.’ Applying this standard to the current circumstances of the COVID-19 pandemic, employers may take screening steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore, an employer may choose to administer COVID-19 testing to employees before initially permitting them to enter the workplace and/or periodically to determine if their presence in the workplace poses a direct threat to others.” The EEOC also reaffirms that the ADA does not preclude an employer from following the CDC’s recommendations or the recommendations of other public health authorities pertaining to testing and screening.

When utilizing testing, employers are encouraged by the EEOC to ensure that tests are accurate and reliable, and employers should stay up to date on any changes to testing guidance issued by the CDC or the U.S. Food and Drug Administration.

The CDC has stated that COVID-19 tests may be used as part of a comprehensive approach to reducing transmission in the workplace. The CDC has explained that approaches may include initial testing of all workers before entering a workplace, periodic testing of workers at regular intervals, or targeted testing of new workers or those returning from a prolonged absence such as medical leave or furlough, or some combination of approaches.

The CDC suggests that employers should provide employees who will undergo testing with the following information:

• the manufacturer and name of the test, the type of test, the purpose of the test, the performance specifications of the test, any limitations associated with the test, who will pay for the test, how the test will be performed, how and when they will receive test results, and
• how to understand what the results mean, actions associated with negative or positive results, the difference between testing for workplace screening versus for medical diagnosis, who will receive the results, how the results may be used, and any consequences for declining to be tested.

Patient fact sheets are also required to be provided to individuals who are tested for COVID-19, though these fact sheets will likely be provided by the vendor conducting the testing.

Notwithstanding the use of testing, due to the potential for negative test results (which do not mean an employee will not become infected with the virus at a later time), the EEOC recommends that employees continue following CDC guidance on social distancing, regular handwashing, and other measures that can be taken to reduce the risk or prevent transmission.

Employers should review state or local law to confirm that a different analysis does not apply.

Note that the CDC stopped updating its General Business Frequently Asked Questions, and this response is based on the last information provided by the CDC for businesses (last updated May 24, 2021). Although the CDC is no longer updating this webpage, its guidance with respect to this particular issue has not come into conflict with any recent CDC guidance or other federal agency guidance.

Updated 03.26.2021

Yes. The EEOC and CDC permit employers to send individuals home who show symptoms. Be mindful of potential pay obligations for reporting time.

Note that the CDC stopped updating its General Business Frequently Asked Questions, and this response is based on the last information provided by the CDC for businesses (last updated May 24, 2021). Although the CDC is no longer updating this webpage, its guidance with respect to this particular issue has not come into conflict with any recent CDC guidance or other federal agency guidance.

Generally, yes. Employers may require the use of face masks. However, per guidance from the EEOC, employers need to accommodate religious garb, allergies, or other disabling conditions when requiring these workplace measures.

The CDC guidelines on masking are found here, and a separate page for those who are fully vaccinated is found here.

In addition, various state and local jurisdictions have implemented orders and/or guidance regarding wearing face coverings. Employers should stay up to date with CDC guidance on masking and with any applicable state or local guidance.

Updated 08.11.2021

An employer should talk to the employee and understand the basis of the employee’s fear or concern. If the employee has a fear or concern of contracting COVID-19 due to an underlying disability, the employer should engage in the interactive process and determine whether a reasonable accommodation can be made for that employee (such as permitting the employee to work remotely). See the Reasonable Accommodations section for more information.

If the employee’s fears or concerns are not due to an underlying disability, the employer should seek to understand the employee’s specific concerns regarding the workplace and look into those concerns if the employee reports noncompliance with workplace safety measures. This is because an employee may be protected under the National Labor Relations Act (NLRA) or the Occupational Safety and Health Act (OSHA) if the employee objects to coming to work due to unsafe working conditions. Given that these issues are highly fact-specific, employers should consult with counsel to determine the best way to address these issues.

Updated 06.26.2020

This is highly dependent upon state law. Courts have held that liability waivers between employers and employees can violate public policy and may be unenforceable. This may also implicate state workers’ compensation laws and OSHA liability that often cannot be waived. 

Updated 06.26.2020

The CDC continues to provide guidance regarding travel during the COVID-19 pandemic. The CDC recommends to “delay travel until [individuals] are fully vaccinated.” Employers should carefully consider the following factors when deciding whether to require employees to travel for business purposes:

• Whether the employee is fully vaccinated;
• The level of outbreak at the destination (both within the United States and internationally); 
• The mode of travel;
• The employer’s business purpose for the requested travel;
• Whether there are alternatives to traveling, such as postponing travel or substituting an employee’s in-person appearance for participation via telephone or video conference;
• The employee’s willingness to travel;
• Whether the employee (if a foreign national) will be permitted back into the United States if traveling internationally;
• Whether the employee or someone in the employee’s home is at an increased risk for severe illness from COVID-19;
• Whether the employee, during the 14 days before travel, engaged in activities that could put them at higher risk for COVID-19 (such as going to a large social gathering like a wedding, funeral, or party, or being in crowded settings such as restaurants, bars, fitness centers, or movie theatres);
• Whether the hospitals in the community or the destination are overwhelmed with patients who have COVID-19 (the CDC suggests checking state, territorial, and local department websites to find out); and
• Whether the travel will result in self-quarantine thereafter and the potential impact of such on business operations.

If an employer concludes that employee travel is necessary, employers should follow CDC guidance to protect employees who must travel for work. Employers should also follow CDC and any applicable state or local guidance regarding testing and quarantining after travel. See Q. 36 below for additional information. 

Note that the CDC stopped updating its General Business Frequently Asked Questions, and this response is based on the last information provided by the CDC for businesses (last updated May 24, 2021). Although the CDC is no longer updating this webpage, its guidance with respect to this particular issue has not come into conflict with any recent CDC guidance or other federal agency guidance.

Updated 05.19.2021

The CDC issued an Order on January 12, 2021, that requires all air passengers, including U.S. citizens and fully vaccinated people, arriving to the United States from foreign countries to get tested with a viral test no more than three days before their flight departs and to provide proof of the negative result to the airline before boarding the flight.

There is an exception. Air passengers who have had a positive viral test for COVID-19 in the preceding three months, and have met the criteria to end isolation, may travel instead with documentation of their positive viral test results and a letter from their healthcare provider or a public health official that states they have been cleared for travel. The positive test result and letter together are referred to as “documentation of recovery.” As of summer 2021, this order was still applicable.

For domestic travel, the CDC recommends (but does not require) that unvaccinated travelers get a viral test no more than three days before travel.

Employers should also be mindful of any applicable state or local travel restrictions.

Updated 08.11.2021

The CDC guidance currently does not require all individuals to quarantine after travel; however, the CDC recommends the following.

For fully vaccinated individuals who have traveled domestically, they should self-monitor for symptoms of COVID-19.

For fully vaccinated individuals who have traveled internationally, they should get a viral test three to five days after returning to the United States and self-monitor for symptoms of COVID-19. 

For unvaccinated people who have traveled either domestically or internationally, the CDC recommends that the individual: 

• Get a viral test three to five days after the trip and stay home and self-quarantine for a full seven days after travel (even if the viral test is negative);
• If a traveler will not get tested, stay home and quarantine for 10 days without a test;
• For 14 days after travel (even if the traveler receives a negative viral test), avoid being around people who are at increased risk for severe illness.

For individuals who have recovered from a documented COVID-19 infection within the last three months, those individuals do not need to get tested or self-quarantine after travel (either domestically or internationally) unless they are symptomatic.

Companies should continue to monitor and be aware of all state and local requirements related to travel.

Employers should consult with counsel regarding specific circumstances involving employees and travel.

Updated 05.19.2021

No. The EEOC has expressly stated employers may not require COVID-19 antibody testing before permitting employees to re-enter the workplace. Additionally, the CDC has explained that “the CDC does NOT recommend that employers use antibody tests to determine which employees can work. Antibody tests check a blood sample for past infection with SARS-CoV-2, the virus that causes COVID-19.” But the EEOC has noted that a COVID-19 antibody test is different from a test to determine if someone has an active case of COVID-19 (i.e., a viral test). The EEOC has already stated that COVID-19 viral tests are permissible under the ADA.

Updated 03.26.2021

Likely yes under federal law, so long as employers accommodate disabilities, religious objections, or other legally protected characteristics that prevent employees from receiving the vaccine. Pregnant or lactating workers may need to be accommodated as well. However, state law may prohibit employers from requiring mandatory vaccination policies.

The EEOC’s guidance explains that federal equal employment opportunity laws do not prevent employers from requiring employees who physically enter the workplace to be vaccinated for COVID-19, so long as the employer provides reasonable accommodations to employees who do not get vaccinated due to a disability or a sincerely held religious belief, practice, or observance, unless doing so would cause an undue hardship to the employer. Additionally, employers may need to respond to allegations that the mandatory vaccine requirement has a disparate impact on employees based on protected characteristics.

Additionally, the Department of Justice released a memorandum opinion concluding that the Food, Drug, and Cosmetic Act (FDCA)—which authorizes an “emergency use authorization” (EUA) for a vaccine—does not prohibit entities, including employers, from requiring a vaccine even if the vaccine is authorized for emergency use only. Several lawsuits have been brought by employees alleging that mandatory vaccination policies are prohibited, in part because the COVID-19 vaccines are authorized only under an EUA. Further, one federal Texas district court dismissed federal and state law claims brought by 117 employees related to their hospital-employer’s mandatory vaccine policy.

Meanwhile, on July 29, 2021, President Biden announced that “every federal government employee and onsite contractor will be asked to attest to their vaccination status. Anyone who does not attest to being fully vaccinated will be required to wear a mask on the job no matter their geographic location, physically distance from all other employees and visitors, comply with a weekly or twice weekly screening testing requirement, and be subject to restrictions on official travel.” Further, the Biden Administration is encouraging private employers to follow this model.

Finally, state law may prohibit employers from instituting mandatory vaccination policies. For example, Montana prohibits employers from discriminating against a person based on the person’s vaccination status. Further, several states have proposed legislation to prohibit mandatory vaccination policies. Collective bargaining agreements may impose additional requirements.

Employers should continue to watch for state or local guidance and/or regulations relating to mandating COVID-19 vaccinations.

UPDATED 08.11.2021

That depends on why the employee is objecting. If the employee objects to getting a COVID-19 vaccine on religious grounds or due to a disability, then the employer must engage in the interactive process to determine whether the employee can be accommodated. There are many factors that go into the accommodation analysis, and each objection must be assessed on a case-by-case basis. If the employee objects on other grounds, the employer may exclude the employee from the workplace or possibly even terminate the employee; however, employers should be mindful of checking any state and local laws that may apply. Employers should ensure that employees who handle accommodation requests or employee objections are trained on accommodation procedures and the interactive process, and managers should be trained about the process for referring accommodation requests. Employees also may object on the basis of political beliefs, and employers should consult counsel to determine applicability of any local laws.

Yes, but this decision should be carefully considered. Employers who offer COVID-19 vaccines at the worksite may be liable for losses that arise in administering vaccines to employees, such as when an employee suffers an adverse reaction to a vaccine. Employers may shield themselves from this liability by seeking the protections of the Public Readiness and Emergency Preparedness (PREP) Act. Under the PREP Act, covered persons are immune from liability for losses caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a covered countermeasure if the Secretary of Health and Human Services has issued a declaration about the countermeasures. On March 17, 2020, the Secretary of Health and Human Services issued a declaration under the PREP Act specific to COVID-19. Although vaccines would certainly qualify as a covered countermeasure under the declaration, an employer should consult with counsel about whether the employer and its vaccination program will satisfy the other requirements of the PREP Act to afford immunity.

While the American Rescue Plan Act of 2021 (ARPA) does not require that employers provide paid leave for this purpose, state and local laws may require it. Employers may also be required under state and local law to provide paid sick or medical leave in the event employees suffer adverse side effects from a vaccine. If the employer decides to provide vaccines at the worksite or require vaccination off-site during working hours, employees should remain “on the clock” while vaccines are administered. Employers may also voluntarily choose to provide additional paid leave in an effort to incentivize employees to get vaccinated, even if the vaccine is administered off-site, and to alleviate the need for time off in the case of adverse reactions to vaccines. The CDC encourages employers to offer paid sick leave to seek vaccination in the community. The CDC also advises employers offering the vaccine on-site to stagger vaccinations to ensure continuity of operations, including for both doses, as side effects from the second dose seem to occur more frequently.

Under the ARPA, eligible employers may claim a paid sick and family leave credit for providing paid time off for employees to obtain a COVID-19 vaccination or to recover from an illness related to the immunization. This credit generally is available to eligible employers that pay sick and family leave for leave from April 1, 2021, through September 30, 2021. For more information regarding the paid sick and family leave credit, please see Q. 62, above.

On April 21, 2021, and again on July 29, 2021, President Biden encouraged employers to provide full pay to employees for time needed to get vaccinated and for time needed to recover from the aftereffects of vaccination. For employers with fewer than 500 employees, he also announced a paid leave tax credit to offset the cost of providing time off related to the vaccine. We will continue monitoring developments in this area. 

UPDATED 08.11.2021

Employer-sponsored group health plans (whether fully or self-insured) will generally be required to pay for COVID-19 vaccines for employees covered under the plan without cost-sharing. For employees who are not covered by an employee-sponsored group health plan, the requirement for an employer to pay for a COVID-19 vaccine depends on applicable state law and whether the employer has mandated a vaccine. Some jurisdictions may require employers mandating COVID-19 vaccines to reimburse employees for incidental cost and travel expenses for off-site vaccinations. Even if the company is not required to reimburse employees for the cost of vaccines, offering reimbursement may be a strategy to encourage employees to get vaccinated in an effort to reduce lost productivity due to employees becoming infected with COVID-19 or due to the need to quarantine following close contact with an infected individual.

The Equal Employment Opportunity Commission (EEOC) has stated that employers may ask employees whether they have received a COVID-19 vaccination and may require proof that an employee has been vaccinated. However, the EEOC suggests that employers consider warning employees not to provide any additional medical or genetic information as part of the proof of vaccination, to avoid potentially running afoul of the Americans with Disabilities Act (ADA) or the Genetic Information Nondiscrimination Act (GINA). (Note that the vaccination process may require some prescreening questioning that could implicate the ADA’s prohibition against disability-related inquiries. This is one reason to consider using third-party providers for vaccination purposes rather than having in-house personnel handle aspects of vaccine administration. Employers administering vaccines should carefully review employment prescreening questions to ensure that they are job-related and consistent with business necessity.) Additionally, employers should be cautious about asking employees why they have not received the vaccine, as such questions may illicit disability-related or genetic information.

Although most employers are not “Covered Entities” subject to the Health Insurance Portability and Accountability Act (HIPAA), which governs and establishes strict protocols associated with the use and disclosure of individuals’ health information, an employer can be subject to HIPAA while acting in the capacity as sponsor of a group health plan. To mitigate risk, employers would be well advised to provide advance written disclosures to employees regarding the vaccination process, the legitimate business reason for the vaccinations, and how the employer (or the group health plan) will use, store, and share (if at all) vaccination data of individual employees. Obtaining a signature acknowledgment and consent to a vaccination protocol is recommended, and if any third parties subject to HIPAA are administering vaccines, they should require employees to fill out a valid HIPAA authorization prior to releasing information about vaccine status to the employer. If coverage for the COVID-19 vaccine is provided through the group health plan, the employer (as the plan sponsor) must separately comply with all HIPAA policies and procedures applicable to the group health plan as a HIPAA Covered Entity.

Employers should also be cognizant of other state and local laws applicable to personally identifiable information other than HIPAA, especially as those laws relate to employees’ health status. HIPAA is only one of many laws that may apply with respect to employees’ private health information and status.

Employers should keep the proof of vaccination in confidential files (similar to employee medical files), separate from employee personnel files and accessible only by those who have a business “need to know” and have been routinely trained with respect to HIPAA and other laws applicable to an individual’s personally identifiable information. If employers administer vaccines in-house, any prescreening records should be kept in the separate, confidential files. Employers should not disclose which employees have or have not been vaccinated. 

Finally, employers should review any state and local laws regarding asking whether employees have received a COVID-19 vaccination or asking for proof of such vaccination, as some jurisdictions may prohibit this.

updated 05.19.2021

According to EEOC guidance, under certain circumstances, employers may offer incentives to employees who receive COVID-19 vaccines. An employer may offer an incentive to employees to voluntarily provide documentation or other confirmation of a vaccination received from a third-party provider (i.e., that is not the employer or an agent of the employer). 

For vaccines administered by the employer, an employer may provide any incentive (which includes both rewards and penalties) provided the incentive “is not so substantial as to be coercive.” The EEOC explained, “[b]ecause vaccinations require employees to answer pre-vaccination disability-related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information” and therefore run afoul of the ADA. 

For information about employees’ family members, employers may offer an incentive to employees to provide documentation or other confirmation that employees’ family members have been vaccinated without running afoul of GINA. If the employer administers the vaccine, employers should not acquire genetic information, and the EEOC has said the pre-vaccination medical screening questions for the three COVID-19 vaccines now available do not.

Employers may not offer any incentives to an employee in exchange for a family member’s receipt of a vaccination from an employer or its agent. However, the EEOC has said GINA permits an employer to offer vaccinations to an employee’s family members if it takes certain steps to comply with GINA, including not requiring employees have their family members vaccinated, not penalizing employees if their family members do not get vaccinated, and keeping all medication information obtained from family members during the screening process confidential.

Employers should also be mindful of potential discrimination claims by individuals who are unable to participate in a COVID-19 vaccine program due to disabilities or religious beliefs and, thus, are ineligible for the incentive through no fault of their own. However, the EEOC has received requests for clarification but has yet to weigh in, so employers should monitor this issue as it develops.

For non-exempt employees, employers should consider how such bonuses/incentives are paid and whether such bonuses/incentives should be included in a non-exempt employee’s regular rate of pay. The Department of Labor has not yet addressed vaccination incentives. Similarly, employers should consider whether the incentive should be considered wages for tax purposes.

Updated 07.28.2021

This answer is currently unclear.

On July 27, 2021, the CDC recommended that fully vaccinated people “can further reduce their risk of becoming infected with the Delta variant and transmitting it to others by wearing a mask in public indoor settings in areas of substantial or high community transmission .” The CDC, however, has not offered any helpful guidance on what settings qualify as “public indoor settings” and whether all indoor workplaces would qualify. Further, it is unclear whether the CDC intends to provide any guidance for workplaces given that it recently archived its “Guidance for Businesses and Employers Responding to Coronavirus Disease 2019 (COVID-19)” and “General Business Frequently Asked Questions” pages and noted that it would no longer be updating these pages.

The CDC recommends that fully vaccinated individuals continue to wear masks in correctional facilities, homeless shelters, and schools.

OSHA has not updated its guidance in reaction to the CDC’s July 27 guidance. OSHA’s current guidance regarding fully vaccinated individuals provides as follows: "Except for workplace settings covered by OSHA's ETS and mask requirements for public transportation, most employers no longer need to take steps to protect their workers from COVID-19 exposure in any workplace, or well-defined portions of a workplace, where all employees are fully vaccinated. Employers should still take steps to protect unvaccinated or otherwise at-risk workers in their workplaces, or well-defined portions of workplaces."

Employers should also be mindful of any state and local orders that may be more restrictive than the federal agencies’ guidance. 

UPDATED 08.11.2021

The CDC has issued guidance explaining, “Most fully vaccinated people with no COVID-like symptoms do not need to quarantine or be restricted from work following an exposure to someone with suspected or confirmed COVID-19, if they follow the testing and masking recommendation above.” The testing and masking recommendation provides that fully vaccinated people should be tested 3-5 days following a known exposure to someone with suspected or confirmed COVID-19 and to wear a mask in public indoor settings for 14 days or until they receive a negative test result.

If a fully vaccinated person develops symptoms or tests positive, the CDC has said that the person should get tested, stay home, and stay away from others.

Individuals who have received only one dose of a two-dose series, or who are still within the two-week window from receipt of their final dose, should follow current guidance on quarantining after exposure to COVID-19. See also Q. 82.

UPDATED 08.11.2021

Fear of contracting COVID-19 or experiencing symptoms of the disease are not necessarily a “disability” under the ADA. Despite the pandemic, employers still have a right (and a duty) to engage in the interactive process regarding accommodations. If an employee requests an accommodation, the employer still may ask questions and seek documentation to determine whether the employee has a “disability” as defined by the ADA (a physical or mental impairment that substantially limits a major life activity, or a history of a substantially limiting impairment). Also, an employer may ask questions or request documentation to determine whether an accommodation is necessary and feasible.

Examples of permissible accommodation questions include inquiries about the nature of the limitation caused by the disability and how the proposed accommodation or some other measure will address it. Employers may also take into consideration whether the proposed accommodation will allow the employee to perform all “essential functions” of their position. Note that employers may begin this process before the workplace reopens or choose to skip the “interactive process” and simply grant accommodation requests in the interest of expedience.

Note that the EEOC has stated that employers may begin this process before the workplace reopens. Employers could also choose to skip the “interactive process” and simply grant accommodation requests in the interest of expedience. The EEOC has also acknowledged that the COVID-19 pandemic may have resulted in unexpected or increased requests for reasonable accommodations, causing a delay in responding to these requests. The EEOC encourages employers and employees to use interim solutions to enable employees to keep working as much as possible while the parties engage in the interactive process.

UPDATED 09.11.2020

Possibly. Simple concern about infection is not typically enough to rise to the level of a “disability” requiring reasonable accommodation. However, individuals with preexisting mental or physical conditions that might not otherwise require workplace accommodation may qualify for such under these circumstances. For example, individuals with otherwise-manageable anxiety disorders might have limited functioning at this time due to exacerbated symptoms and require workplace accommodations in order to continue performing essential job functions.

However, employers should not preemptively exclude from the workplace an employee who is within a group that the CDC identifies as potentially placing the employee at higher risk for severe illness if the employee contracts COVID-19. For example, referring to the Age Discrimination in Employment Act, the EEOC states, “The ADEA would prohibit a covered employer from involuntarily excluding an individual from the workplace based on his or her being 65 or older, even if the employer acted for benevolent reasons such as protecting the employee due to higher risk of severe illness from COVID-19.” Further, the EEOC has said, in relation to pregnancy, “Sex discrimination under Title VII of the Civil Rights Act includes discrimination based on pregnancy. Even if motivated by benevolent concern, an employer is not permitted to single out workers on the basis of pregnancy for adverse employment actions, including involuntary leave, layoff, or furlough.”

Rather, the employer should wait until the employee requests a reasonable accommodation, unless the employee’s disability poses a “direct threat” to the employee’s health that cannot be eliminated or reduced by reasonable accommodation. The direct threat requirement comes from the ADA and is a high standard. The EEOC explains that a “direct threat” means the employee has a disability that poses a “significant risk of substantial harm” to the employee’s own health. Merely having a condition identified by the CDC does not automatically meet the direct threat test. Rather, the employer must make an individualized assessment based on a reasonable medical judgment about the particular employee’s disability—not the disability in general—using the most current medical knowledge and/or the best available objective evidence. There are multiple factors the employer should consider: the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, the imminence of the potential harm, the severity of the pandemic in a particular area, the employee’s own health (for example, is the employee’s disability well-controlled), the employee’s particular job duties, and the likelihood that an individual could be exposed to the virus at the worksite. General measures that an employer may be taking to protect all workers, such as mandatory social distancing, also would be relevant.

The EEOC has stated, “Even if an employer determines that an employee’s disability poses a direct threat to the employee’s own health, the employer still cannot exclude the employee from the workplace—or take any other adverse action—unless there is no way to provide a reasonable accommodation (absent undue hardship). The ADA regulations require an employer to consider whether there are reasonable accommodations that would eliminate or reduce the risk so that it would be safe for the employee to return to the workplace while still permitting performance of essential functions. This can involve an interactive process with the employee. If there are not accommodations that permit this, then an employer must consider accommodations such as telework, leave, or reassignment (perhaps to a different job in a place where it may be safer for the employee to work or that permits telework). An employer may only bar an employee from the workplace if, after going through all these steps, the facts support the conclusion that the employee poses a significant risk of substantial harm to himself [or herself] that cannot be reduced or eliminated by reasonable accommodation.”

Employers should check local regulations to ensure they are aware of obligations outside of the ADA context.

UPDATED 05.19.2021

Due to business exigencies caused by the pandemic, accommodations that would not have previously caused an “undue hardship” might now pose one. For example, obtaining certain items or reassigning job tasks on a temporary basis may be more challenging, or the sudden loss of business income or discretionary funds might make requests unreasonable in the current climate. Employers must take care, however, to explore alternate accommodations and to always document the reason for concluding that a requested accommodation would cause an “undue hardship.”

Alternatively, employers could consider adapting the interactive process and setting end dates for accommodations—while, for example, awaiting medical documentation or in anticipation of changing circumstances based on public health directives or business conditions—to avoid the argument that certain adjustments were granted on a long-term or permanent basis.

UPDATED 04.22.2020

The EEOC has said, “Accommodations may include additional or enhanced protective gowns, masks, gloves, or other gear beyond what the employer may generally provide to employees returning to its workplace. Accommodations also may include additional or enhanced protective measures, for example, erecting a barrier that provides separation between an employee with a disability and coworkers/the public or increasing the space between an employee with a disability and others. Another possible reasonable accommodation may be elimination or substitution of particular ‘marginal’ functions (less critical or incidental job duties as distinguished from the ‘essential’ functions of a particular position). In addition, accommodations may include temporary modification of work schedules (if that decreases contact with coworkers and/or the public when on duty or commuting) or moving the location of where one performs work (for example, moving a person to the end of a production line rather than in the middle of it if that provides more social distancing).

These are only a few ideas. Identifying an effective accommodation depends, among other things, on an employee’s job duties and the design of the workspace. An employer and employee should discuss possible ideas; the Job Accommodation Network (www.askjan.org) also may be able to assist in helping identify possible accommodations. As with all discussions of reasonable accommodation during this pandemic, employers and employees are encouraged to be creative and flexible.”

UPDATED 05.08.2020

Generally, employers may take adverse action against employees who refuse to wear face masks pursuant to company policy unless the face mask causes a workplace hazard or cannot be worn due to an employee’s health restrictions. State and local orders may require the use of face masks in the workplace or by the general public.

According to the EEOC, if an employee was already receiving a reasonable accommodation before the COVID-19 pandemic, absent undue hardship to the employer, the employee may be entitled to an altered or additional accommodation. An employer may talk with the employee to determine whether the same disability or a different disability is the reason for the employee’s additional or altered accommodation request, and to discuss the reason the accommodation is necessary. 

The EEOC has addressed this issue. According to the EEOC, “[a]ssuming all the requirements for such a reasonable accommodation are satisfied, the temporary telework experience could be relevant to considering the renewed request.” The experience could serve as a “trial period” to demonstrate whether the employee could perform the essential functions while working remotely, and this information is relevant in considering a renewed request for accommodation. Ultimately, it will likely be a fact-specific inquiry. However, regardless, the employer and employee must engage in an interactive process regarding the renewed request. 

UPDATED 09.11.2020

No; the requirement to provide leave under the Families First Coronavirus Response Act expired as of December 31, 2020.

Maybe. Employers should engage in the interactive process. Post-Acute COVID-19 Syndrome, colloquially referred to as long COVID occurs when an individual who had COVID-19 continues to experience ongoing symptoms for months afterward. Individuals with long COVID might have difficulty working in the same way they did before and may be entitled to workplace accommodations so they can do their job.

The U.S. Department of Labor stated that accommodations for long COVID could include the following (not an exhaustive list): providing or modifying equipment or devices, part-time or modified work schedules, reassignment to a vacant position, and/or adjusting or modifying examinations, training materials, or policies. Employers should engage in the interactive process, just as they would for others with a disability, to determine whether the accommodation requested is reasonable or would cause an undue hardship.

UPDATED 08.11.2021

Pursuant to the Families First Coronavirus Response Act (FFCRA), from April 1, 2020, through December 31, 2020, covered employers were required to provide two types of paid leave for COVID-19-related reasons: (1) emergency paid sick leave; and (2) expanded family and medical leave. In exchange for providing the paid leave, the FFCRA allowed employers who satisfied the requirements of the FFCRA to claim tax credits to cover the cost of the paid leave wages. The FFCRA requirement expired on December 31, 2020.

The Consolidated Appropriations Act, 2021, did not extend the obligations under the FFCRA. Rather, if an employer covered by the FFCRA voluntarily chose to provide paid leave consistent with the requirements of the FFCRA, as amended for purposes of the Act, tax credits were for qualified leave wages paid through March 31, 2021. 

On March 11, 2021, President Biden signed the American Rescue Plan Act of 2021 (ARPA). Under the ARPA, refundable tax credits are available for qualified leave wages an eligible employer provides for leave taken by employees between April 1, 2021, and September 30, 2021, if the leave would have satisfied the requirements of the Emergency Paid Sick Leave Act and the Expanded Family and Medical Leave Act under the FFCRA, as amended for purposes of the ARPA. Tax credits are available for qualifying leave taken by employees between April 1, 2021, and September 30, 2021. 

Businesses (including tax-exempt organizations) with fewer than 500 full-time and part-time employees and certain governmental employers are eligible for tax credits under the ARPA. Certain self-employed individuals are eligible for similar tax credits. Additional information regarding eligibility is available on the IRS website. 

Under the ARPA, otherwise eligible employers are not permitted to take a tax credit for otherwise qualified leave wages if the employer discriminates in favor of highly compensated employees, full-time employees, or employees on the basis of tenure with respect to the availability of the provision of qualified sick or family and medical leave wages.

The FFCRA required covered employers to provide emergency paid sick leave for six reasons related to COVID-19. The ARPA expanded the reasons for which an employee can take leave. Thus, under the ARPA, eligible employers can claim a tax credit if they pay qualified sick leave wages, which means pay for leave taken if the employee is unable to work or telework for any of the following reasons:

1. The employee is under a federal, state, or local quarantine or isolation order related to COVID-19;
2. The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19;
3. The employee is:
   • experiencing symptoms of COVID-19 and seeking a medical diagnosis,
   • seeking or awaiting the results of a diagnostic test for, or a medical diagnosis of, COVID-19 and the employee has been exposed to COVID-19 or the employee’s employer has requested the test or diagnosis, or
   • obtaining immunization related to COVID-19 or recovering from any injury, disability, illness, or condition related to the immunization;
4. The employee is caring for an individual who is subject to a federal, state, or local quarantine or isolation order related to COVID-19, or has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19;
5. The employee is caring for the child of the employee if the school or place of care of the child has been closed, or the childcare provider of the child is unavailable, due to COVID-19 precautions; or
6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

To claim tax credits, employers should provide sick leave in a manner consistent with the FFCRA, as amended by the ARPA. According to the IRS, this means “the leave would have satisfied the requirements of the EPSLA [Emergency Paid Sick Leave Act] and Expanded FMLA [Family and Medical Leave Act], as amended for purposes of the ARP[A].” Employers with questions should consult with counsel.

The ARPA does not mandate sick leave but allows tax credits for employers who choose to provide such leave. Pursuant to the ARPA, eligible full-time employees can take up to 10 days (80 hours) of paid sick leave for reasons described in Q. 58 above, beginning April 1, 2021, and through September 30, 2021. Part-time employees can receive the number of hours of paid sick leave that the employee works, on average, in a two-week period for leave between April 1, 2021, and September 30, 2021. The IRS notes that the Department of Labor’s guidance regarding determinations of full-time and part-time status and calculating leave for part-time employees continues to apply for the ARPA.

Employers can provide up to 10 days (80 hours) of paid sick leave, and claim the applicable tax credits, beginning April 1, 2021, even if an employee previously exhausted 10 days of sick leave under the FFCRA.

The FFCRA required covered employers to provide expanded family and medical leave when an employee needed to care for a child whose school or place of care was closed or childcare provider was unavailable for reasons related to COVID-19. Pursuant to the ARPA, employees can take family and medical leave for any of the reasons listed in Q. 58 above (i.e., the same reasons as sick leave). Thus, under the ARPA, eligible employers can claim a tax credit if they pay qualified family leave wages, which means pay for leave taken if the employee is unable to work or telework for any of certain qualifying reasons.

These reasons include:

1. The employee is under a federal, state, or local quarantine or isolation order related to COVID-19;
2. The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19;
3. The employee is:
   • experiencing symptoms of COVID-19 and seeking a medical diagnosis,
   • seeking or awaiting the results of a diagnostic test for, or a medical diagnosis of, COVID-19 and the employee has been exposed to COVID-19 or the employee’s employer has requested the test or diagnosis, or
   • obtaining immunization related to COVID-19 or recovering from any injury, disability, illness, or condition related to the immunization;
4. The employee is caring for an individual who is subject to a federal, state, or local quarantine or isolation order related to COVID-19, or has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19;
5. The employee is caring for the child of the employee if the school or place of care of the child has been closed, or the childcare provider of the child is unavailable, due to COVID-19 precautions; or
6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

To claim tax credits, employers should provide sick leave in a manner consistent with the FFCRA, as amended by the ARPA. According to the IRS, this means “the leave would have satisfied the requirements of the EPSLA [Emergency Paid Sick Leave Act] and Expanded FMLA [Family and Medical Leave], as amended for purposes of the ARP[A].” Employers with questions should consult with counsel. The IRS also notes that although the reasons an eligible employer pays an employee qualified family leave wages are the same as for qualified sick leave wages, such wages cannot be for the same hours for purposes of claiming tax credits.

The ARPA does not mandate family and medical leave but allows tax credits for employers who choose to provide such leave. Pursuant to the ARPA, an eligible employer can provide covered employees with qualified family leave wages for up to 12 weeks for the reasons described in Q. 58 above between April 1, 2021, and September 30, 2021. 

Employers should contact counsel regarding the interaction between family and medical leave under the ARPA and their general Family and Medical Leave (FMLA) policies.

The Families First Coronavirus Response Act (FFCRA) provides employers with a tax credit against the employer’s portion of certain payroll taxes (for tax credits claimed prior to April 1, 2021, the tax credits are applied against Social Security taxes, which consists of a 6.2% tax on wages by the employer; for tax credits claimed after March 31, 2021, the tax credits are applied against Medicare taxes, which consists of a 1.45% tax on wages by the employer). The tax credit is equal to 100% of the paid leave wages required to be paid under the FFCRA between April 1, 2020, and December 31, 2020. If the tax credit (wages paid out under the new benefit) exceeds the amount of the employer’s portion of Social Security tax due for the applicable quarter, the employer may treat the excess as a refundable overpayment. The amount of any tax credit claimed by an employer is subject to certain limitations, including a cap tied to the type of leave taken by an employee ($511 per day in cases of leave taken to care for oneself and $200 per day where leave is taken to care for another individual). The amount of the tax credit that may be claimed by an employer is increased by an amount equal to the employer’s portion of any Medicare taxes (and the employer’s portion of any Social Security taxes with respect to any tax credits claimed after March 31, 2021) incident to the payment of paid leave wages under the FFCRA (however, this additional tax credit amount continues to operate as an offset only against the employer’s portion of Social Security taxes or Medicare taxes, as described above). Tax credits under the FFCRA are includible in an employer’s gross income.

Shortly after enactment of the FFCRA, the Internal Revenue Service issued guidance allowing eligible employers who pay qualified leave wages, such that the employer anticipates receiving the above-described tax credit, to fund the qualified leave wages by (1) retaining federal employment taxes that the employer would otherwise be required to deposit with the IRS, or (2) requesting an advance from the IRS. Federal employment taxes that may be retained by an eligible employer in lieu of depositing such taxes with the IRS include federal income taxes ordinarily withheld from employees and FICA taxes (both the employees’ and employer’s shares of Social Security and Medicare taxes). If a qualified employer’s qualified leave wages exceed such employer’s available federal employment tax deposits, the employer can file a Form 7200, Advance Payment of Employer Credits Due to COVID-19, to claim an advance credit for the remaining qualified leave wages it has paid for the quarter for which it did not have sufficient federal employment tax deposits. According to the IRS website, the IRS will accept Form 7200 up to the earlier of February 1, 2021, or the date a taxpayer files the Form 941 for the fourth quarter of 2020. Recordkeeping and retention requirements apply to credits claimed under the FFCRA (see Qs. 63 and 64 below). An eligible employer should not claim an advance for the same portion of the anticipated tax credits it relied upon to reduce its federal employment tax deposits.

The Consolidated Appropriations Act, 2021, extended the eligibility period for FFCRA tax credits to March 31, 2021, and is available to employers who provide FFCRA paid family and medical leave through that date. However, the Act does not mandate that employers provide FFCRA paid leave. That mandate expired on December 31, 2020. Thus, since January 1, 2021, employers have had the option to voluntarily provide FFCRA paid leave to employees and, by so doing, remain eligible to receive the tax credit under the FFCRA with respect to such paid leave until the end of March 2021 (and now until September 30, 2021, under the ARPA, as described below).

The American Rescue Plan Act (ARPA) of 2021 further extends the eligibility period for FFCRA tax credits to September 30, 2021. The ARPA also implemented two significant FFCRA modifications that are important for purposes of claiming FFCRA tax credits. First, the ARPA provides for an additional 10 days (80 hours) of paid sick leave for which an employer may claim FFCRA tax credits, beginning April 1, 2021. This change permits employees who had previously exhausted leave under the FFCRA to take additional leave under the FFCRA (if such leave is made available by the employer) and an employer may claim FFCRA tax credits in connection with such leave. Second, the total cap on the amount of FFCRA tax credits that an employer may claim for expanded family and medical leave with respect to an employee has been increased from $10,000 to $12,000 (the per-day caps described above continue to remain in effect).

On April 21, 2021, President Biden encouraged employers to provide full pay to employees for time needed to get vaccinated and for time needed to recover from the aftereffects of vaccination. For employers with fewer than 500 employees, he also announced a paid leave tax credit to offset the cost of providing time off related to the vaccine. We will continue monitoring developments in this area. Further information regarding President Biden’s announcement can be found in this fact sheet.

This does not constitute tax advice and employers with questions should contact counsel regarding applicable tax credits.

See also Summary of Tax Provision of the Families First Coronavirus Response Act and Certain Tax Filing Changes.

UPDATED 04.26.2021

Yes. According to the IRS, an eligible employer will substantiate eligibility for leave credits if the employer receives a written request for leave from the employee, which includes the following: 

1. The employee’s name;
2. The date(s) for which leave is requested;
3. A statement of the COVID-19-related reason the employee is requesting leave and written support for such reason; and
4. A statement that the employee is unable to work, including by means of telework, for such reason.

According to the IRS FAQs:

• If an employee is making a leave request based on a government quarantine order or self-quarantine advice, the statement from the employee should include the name of the governmental entity ordering quarantine or the name of the healthcare professional advising self-quarantine. If the person subject to quarantine or isolation, or advised to self-quarantine, is not the employee, the statement should include the person’s name and relationship to the employee. 
• If an employee requests leave based on a school closing or the unavailability of a childcare provider, the employee’s statement should provide the name and age of the child (or children) who needs to be cared for, the name of the school (or summer camp, summer enrichment program, or other summer program) that closed, or the place of care that is unavailable, and a statement that no other suitable person will be providing care for the child during the period for which the employee is receiving family medical leave.
• If leave is requested to obtain a COVID-19 vaccination or recover from a condition related the COVID-19 vaccination, the employee’s statement should include the date of the vaccination. If the employee is requesting leave because the employee is awaiting the results of a COVID-19 test or diagnosis, due to either being exposed or because the employer requires the test, the employee’s statement should include the date of the test.

The IRS also provides the following example: “A state government directive specifies that employees quarantining either because they have COVID-19 symptoms or have been directly exposed to COVID-19 are not required to provide their employer with a COVID-19 test result or a healthcare provider’s note to validate their illness or exposure and need for leave. A written request from an employee providing the name of the government entity and briefly describing the directive would satisfy the applicable substantiation requirements.”

Employers with questions regarding requiring notice from employees and updating their leave request forms should consult counsel.

Yes. Question 67 of the IRS FAQs indicates that an eligible employer will substantiate eligibility for leave credits if, in addition to the information described in Q. 63 above, the employer creates and maintains records that include the following information: 

1. Documentation showing how the eligible employer determined the amount of qualified sick and family leave wages paid to employees that are eligible for the credit, including records of work, telework, and qualified sick leave and qualified family leave;
2. Documentation showing how the eligible employer determined the amount of qualified health plan expenses that the employer allocated to wages;
3. Documentation to show how the eligible employer determined the amount of collectively bargained benefits that the eligible employer allocated to wages;
4. Copies of any completed Forms 7200, Advance Payment of Employer Credits Due to COVID-19, that the eligible employer submitted to the IRS; and
5. Copies of the completed Forms 941, Employer’s Quarterly Federal Tax Return, that the employer submitted to the IRS (or if an eligible employer uses a third-party payer to satisfy its employment tax obligations, records of information provided to the third-party payer regarding the eligible employer’s entitlement to the credit claimed on Form 941).

According to the IRS, eligible employers should keep all records that relate to paid sick and family leave credits for at least six years after the date the tax becomes due or is paid, whichever is later. Such records should be available for the IRS to review.

Employers who have employees working in the United States with temporary work authorization should evaluate the rapidly evolving restrictions on international travel and the potential impact on an employee’s immigration status. Further, employers need to consider the effect of travel restrictions and remote work on document verification and case processing, as well as other procedures. If the employer intends to conduct layoffs, furloughs, or reduce hours, employers should take caution with their H-1B, E-3, and H-1B1 classified employees. Employers also need to carefully consider the ramifications of employment termination on their employees’ immigration status.

These issues are rapidly evolving, and employers should contact legal counsel to evaluate their particular situation.

The U.S. Department of Homeland Security (DHS) is allowing certain employers to defer the physical presence requirement of I-9 documentation inspection and is temporarily allowing electronic or remote review of I-9 documentation. The electronic or remote review must be completed within the normal I-9 deadlines established, and the I-9 form must be annotated to document the deviation in the normal review process. Only companies whose employees are working remotely as a result of the COVID-19 pandemic may utilize this I-9 process change; employees who are physically present at their workplace must follow routine I-9 document inspection procedures.

Employers should consult with legal counsel to determine whether they are eligible for the modified I-9 verification process, and to confirm the process that is required.

The new provisions mentioned in Q. 66 above were set to expire on May 19, 2020, but DHS has been extending these provisions on a month-to-month basis. On May 26, 2021, the department announced a continuation of the provisions and an extension to last for four months. On August 31, 2021, the department announced a new extension set to last through December 31, 2021. The announcement noted that the department will continue to monitor the national emergency and provide updated guidance as needed. Presumably, a future announcement will indicate additional details and a timeline for employers to return to typical physical inspection of I-9 documentation.

Upon resumption of normal operations or upon the department’s termination of these provisions, all employees who underwent remote verification must undergo in-person verification within three business days.

Employers should consult with legal counsel to determine whether they are eligible for the modified I-9 verification process.

UPDATED 09.24.2021

Foreign national employees in H-1B, E-3, or H-1B1 status may work remotely under certain circumstances. If an employee’s work authorization does not contemplate a work from home option, the employee may work from home without filing a new Labor Condition Application (LCA) or amending their H-1B, E-3, or H-1B1 petition as long as the worker’s home is within the normal commuting distance of the workplace.

For prospective employees in H-1B, E-3, or H-1B1 status, there are new interim rules regarding LCA posting requirements. Employers should carefully consider the interim U.S. Department of Labor posting requirements with advice of legal counsel.

UPDATED 04.16.2020

Generally, foreign nationals are restricted from entering the United States from Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, South Africa, and Zimbabwe. This does not include U.S. citizens and permanent residents or individuals who fall into other categories. Non–U.S. citizen or permanent resident employees may be restricted from traveling to the United States from these countries until the travel ban is lifted. Foreign nationals attempting entry from other countries (and who were not physically present in the above countries during the 14-day period preceding their attempted entry into the United States) are subject to the November 8, 2021, air travel policy detailed below.

On October 25, 2021, the White House issued a memo stating that the United States is moving away from country-by-country restrictions and adopting an air travel policy that relies primarily on vaccination and testing. The new policy took effect November 8, 2021.

Generally, foreign national air travelers are required to provide proof that they are fully vaccinated prior to boarding an airplane to fly to the United States, with only limited exceptions. All fully vaccinated travelers are required to show documentation of a negative COVID-19 test taken three days before travel to the United States.

U.S. citizens and lawful permanent residents traveling by air are not required to be vaccinated, but any unvaccinated travelers are required to show proof of a negative COVID-19 test taken one day before travel to the United States.

More details on the new policy impacting air travel is provided by the Department of State, the Centers for Disease Control and Prevention, and the White House.

Land border and ferry crossings are subject to a different policy. As of November 8, 2021, U.S. Customs and Border Protection allows fully vaccinated travelers from Mexico or Canada to enter the United States at land and ferry ports of entry for non-essential reasons. Unvaccinated travelers can continue to travel for essential purposes (which generally includes individuals traveling to work in the United States) as they have in the past. However, beginning January 21, 2022, U.S. Customs and Border Protection will require that all inbound foreign national travelers crossing U.S. land or ferry ports of entry, whether for essential or non-essential reasons, be fully vaccinated for COVID-19 and provide related proof of vaccination.

Due to the complexity and evolving nature of the restrictions, all travel for non–U.S. citizen employees should be carefully considered with advice of legal counsel.

UPDATED 12.02.2021

It may. The U.S. Department of State has suspended routine visa services at its embassies and consulates worldwide. Services to U.S. citizens as well as emergency or urgent visa services will still be provided. This will affect non-U.S. citizen employees’ ability to travel to the United States if they require visa services, including obtaining a visa stamp in their passports before being able to travel to the United States.

UPDATED 04.16.2020

It may. Effective March 18, 2020, U.S. Citizenship and Immigration Services (USCIS) has temporarily closed its field offices, asylum offices, and application support centers. Individuals who had application support center appointments will receive new appointment letters in the mail when normal operations resume. Individuals who had interviews at USCIS for immigration benefits have had those interviews cancelled and will likely have the interviews rescheduled when USCIS reopens. All other appointments must be rescheduled by contacting USCIS once the field offices reopen. These USCIS office closures could prevent individuals with expiring work permits from remaining in the United States lawfully. Employers with employees in this situation should consult with counsel and monitor developments carefully.

UPDATED 04.16.2020

Discuss with the employee, if possible, when the affected employee was at the employer’s site prior to diagnosis to find out with whom the affected employee had contact at the employer’s site. Use this information to provide notice to the appropriate individuals. (See Qs. 75 and 76 below.) 

The CDC states that employers should take action if an employee is suspected or confirmed to have COVID-19 infection, including determining which employees may have been exposed to the virus. Based on those determinations, employers may need to take additional precautions:

• Inform employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the Americans with Disabilities Act.
• Most workplaces should follow the Public Health Guidance for Community-Related Exposure and instruct potentially exposed employees to stay home for 14 days, telework if possible, and self-monitor for symptoms. Employers can consider the CDC’s alternative options to the 14-day quarantine period for workers who have been exposed to someone with COVID-19 after reviewing state and local guidance as to the applicability of the CDC’s alternative options. (See Q. 82.) Note that the CDC states that workplaces should consider the quarantine alternatives as acceptable measures, but not the preferred options, to mitigate staffing shortages. The CDC has provided additional recommendations for isolation, quarantine, and testing of fully vaccinated individuals as well.
• Critical infrastructure workplaces should refer to COVID-19 Critical Infrastructure Sector Response Planning and guidance on Testing Strategy for Coronavirus (COVID-19) in High-Density Critical Infrastructure Workplaces after a COVID-19 Case Is Identified. Employers in critical infrastructure also have an obligation to manage potentially exposed workers’ return to work in ways that best protect the health of those workers, their co-workers, and the general public.
• The CDC recommends the implementation of testing strategies to supplement measures to reduce transmission in the workplace. The CDC states that repeated testing over time, also referred to as serial testing, may be more likely to detect infection among workers who have been exposed than testing done at a single point in time. The CDC recommends that fully vaccinated people with no COVID-19-like symptoms and no known exposure should be exempted from routine screening testing programs, if feasible. But, fully vaccinated people should “[g]et tested 3-5 days after exposure to someone with suspected or confirmed COVID-19 and wear a mask in public indoor settings for 14 days or until they receive a negative test result.”

Follow all directions from the state and local health department, including whether any site closures are needed.

Educate employees about how they can reduce the spread of COVID-19 following CDC and state and local health department guidance.

Evaluate whether the employer needs to report the positive diagnosis to OSHA. (See Q. 74 below.)

Follow CDC guidance on environmental cleaning and disinfection as well as any directions or guidance from state or local health authorities. This may include closure of the affected work area and the relocation or temporary furlough of employees, if possible, while the employer engages in the cleaning and disinfecting of surfaces, equipment, and other elements of the work environment where exposure occurred.

The CDC’s Frequently Asked Questions state that in most cases if an employee is suspected or confirmed to have COVID-19, the business does not need to shut down the facility. However, the CDC recommends closing any areas used for prolonged periods of time by the sick person, with the following guidelines:

• Close off areas used by the person who is sick and do not use those areas until they have been cleaned and disinfected.
• Wait as long as possible (at least several hours) before you clean and disinfect.
• For information on when the employee can return to work, see Qs. 81 and 82.

Employers should also consider whether they need to report any COVID-19 clusters to public health officials. The CDC has stated, “Public health authorities should consider proactively recommending that any employers in their jurisdiction notify them if they learn about ≥2 cases in workers who have been in close contact (within 6 feet for a total of 15 minutes or more) in a non-residential and non-healthcare worksite.” Some state or local health departments have reporting requirements for COVID-19 clusters in the workplace, and employers should review these state or local requirements to determine whether the employer needs to report.

Note that the CDC stopped updating its Guidance for Businesses and Employers Responding to Coronavirus Disease 2019 (COVID-19) (last updated March 8, 2021), General Business Frequently Asked Questions (last updated May 24, 2021), and COVID-19 Critical Infrastructure Sector Response Planning (last updated December 3, 2020), and this response is based on the last information provided by the CDC for businesses. Although the CDC is no longer updating these webpages, its guidance with respect to this particular issue has not come into conflict with any recent CDC guidance or other federal agency guidance.

UPDATED 08.27.2021

The CDC provides that employees who have symptoms of COVID-19 when they arrive at work or become sick during the day should immediately be separated from other employees, customers, and visitors and sent home. If the employee is still at work, remove and isolate the affected employee, consider providing the employee with a face mask, and arrange for the employee to leave the workplace confidentially. Follow OSHA’s Guidance on Preparing Workplaces for COVID-19 (pages 9-10) regarding appropriate methods for isolating the affected employee and protecting non-infected workers before the employee departs the workplace. Then, refer to Q. 81 for when the employee may return to work.

Note that the CDC stopped updating its General Business Frequently Asked Questions (last updated May 24, 2021), and this response is based on the last information provided by the CDC for businesses. Although the CDC is no longer updating this webpage, its guidance with respect to this particular issue has not come into conflict with any recent CDC guidance or other federal agency guidance.

UPDATED 05.01.2020

OSHA’s general recordkeeping requirements provide that covered employers must record certain work-related injuries and illnesses on their OSHA 300 log. COVID-19 may be a recordable illness if a worker is infected as a result of performing the worker’s work-related duties.

On April 10, 2020, OSHA issued guidance exempting most employers from making work-related determinations unless there was reasonably objective evidence reasonably available to the employer of a “work-related” case. OSHA did not, however, exempt employers in healthcare industries, emergency response organizations, and correctional institutions from making this determination. 

On May 19, 2020, OSHA revised its guidance, rescinding the loosened restrictions issued on April 10, effective May 26, 2020. According to OSHA, this guidance is intended to be time-limited to the current COVID-19 public health crisis.

Under the revised guidance, OSHA is requiring all employers to record COVID-19 cases beginning on May 26, 2020, if:

1. The case is a confirmed case of COVID-19, as defined by the Centers for Disease Control and Prevention (i.e., an individual has at least one respiratory specimen that tested positive for SARS-CoV-2);
2. The case is “work-related” as defined by Title 29, Section 1904.5 of the Code of Federal Regulations; and
3. The case involves one or more of the general recording criteria set forth in Title 29, Section 1904.7 of the Code of Federal Regulations, which include restricted work, days away from work, and/or medical treatment beyond first aid.

The OSHA guidance nevertheless notes that “in many instances it remains difficult to determine whether a COVID-19 illness is work-related, especially when an employee has experienced potential exposure both in and out of the workplace.” Further, recording a COVID-19 illness does not, of itself, mean that the employer has violated any OSHA standard. In addition, existing regulations provide that employers with 10 or fewer employees and certain employers in low-hazard industries have no recording obligations; they need only report work-related COVID-19 illnesses that result in a fatality or an employee’s in-patient hospitalization, amputation, or loss of an eye.

In its revised guidance, OSHA instructs compliance officers enforcing the new rule to apply a variety of factors in determining compliance, such as:

1. The reasonableness of the employer’s investigation into work-relatedness.
   Employers, especially small employers, are not expected to undertake extensive medical inquiries, given employee privacy concerns and most employers' lack of expertise in this area. Thus, OSHA indicates that a sufficient investigation would include the following:
   • Asking the employee how he/she believes COVID-19 was contracted;
   • While respecting employee privacy, discussing the employee’s out-of-work activities that led to the illness; and
   • Reviewing the employee’s work environment for potential COVID-19 exposure.
2. The evidence available to the employer.
   Employers should decide whether a case is work-related based on evidence reasonably available to them at the time the determination is made, but can change the determination later when the employer later learns more information that might impact the work-relatedness determination.
3. The evidence that a COVID-19 illness was contracted at work.
   OSHA’s guidance identifies the following circumstances as evidence that may weigh in favor of or against work-relatedness:
   • Likely work-related if several cases develop among workers who work closely together and there is no alternative explanation;
   • Likely work-related if an employee contracted COVID-19 shortly after lengthy close exposure to a customer or coworker who is confirmed positive and there is no alternative explanation;
   • Likely work-related if the employee’s job duties involve frequent, close exposure to the general public in an area with ongoing community transmission and there is no alternative explanation;
   • Likely not work-related if the employee is the only worker to contract COVID-19 and the employee’s job duties do not include frequent contact with the public, regardless of community transmission; and
   • Likely not work-related if the employee, outside of work, has close and frequent contact with someone such as a family member, significant other, or friend (who is not a coworker) who has COVID-19.

OSHA considers COVID-19 a respiratory illness, so it should be coded as such on the 300 log. If an employee voluntarily requests that his or her name not be entered into the OSHA 300 log, the employer must not publish the employee’s name.

On September 30, 2020, OSHA revised guidance pertaining to employers’ reporting obligations for COVID-19-related hospitalizations and fatalities. Based on existing regulations regarding workplace fatalities, OSHA’s new guidance clarifies that employers must report an employee death if it occurs within 30 days of that employee’s exposure to the virus on the job (not from the time of confirmed diagnosis, as indicated in prior guidance). Fatalities must be reported within eight hours after learning that an employee has died and determining that the cause of death was work-related. For hospitalizations, employers must report such cases “within 24 hours of knowing both that the employee has been in-patient hospitalized and that the reason for the hospitalization was a work-related case of COVID-19.”

In light of these changes, OSHA recommends frequently checking its webpage at https://www.osha.gov/SLTC/covid-19/ for updates.

Employers should also monitor developments at a state and local level that may require additional reporting. One such example is California’s COVID-19 Emergency Temporary Standards, which are described here. 

UPDATED 12.04.2020

Yes, based on the current guidance from the CDC and assuming the employee who has been diagnosed with COVID-19 may have had contact with any employees within a timeframe suggesting potential exposure per CDC guidelines. In this situation, using predetermined methods for emergency communications with the workforce, employers should inform impacted employees that they may have been exposed to or been in contact with an individual in the workplace who has tested positive for COVID-19 within a timeframe suggesting potential exposure per CDC guidelines. Importantly, employers should not share the name of the employee with COVID-19; however, the notification should specify the relevant work area, the employee’s recent dates in the workplace, and the individual’s last day in the workplace. If any records reflecting an employee’s positive COVID-19 diagnosis or potential exposure are created, employers should ensure that the records are segregated from personnel files and kept in separate confidential medical records files.

Employers should also monitor developments at a state and local level that may require reporting under varying circumstances. For example, California has enacted a COVID-19 notice requirement, which is described further here.

Note that the CDC stopped updating its General Business Frequently Asked Questions (last updated May 24, 2021), and this response is based on the last information provided by the CDC for businesses. Although the CDC is no longer updating this webpage, its guidance with respect to this particular issue has not come into conflict with any recent CDC guidance or other federal agency guidance.

Updated 12.04.2020

Generally, yes, if those visiting the employer’s facilities would have come into contact with the employee or the location where the employee was working in the employer’s facility within a timeframe suggesting potential exposure per CDC guidelines.

Evaluate how best to notify vendors and facility visitors. Importantly, do not share the name of the employee with COVID-19; however, do specify the relevant work area, the employee’s recent dates in the workplace, and the individual’s last day in the workplace. If any records reflecting an employee’s positive COVID-19 diagnosis or potential exposure are created, ensure that the records are not shared with the vendors/contractors, are segregated from personnel files, and are kept in separate confidential medical records files.

In the EEOC webinar held on March 27, 2020, the EEOC made clear that the ADA does not permit a broad disclosure of medical information of a specific employee. Likewise, broad disclosure of medical information is not recommended by the CDC. The CDC advises employers to maintain confidentiality of people with confirmed COVID-19.

The EEOC recently explained that employers should use a generic descriptor when providing notice, such as telling employees that “someone at this location” or “someone on the fourth floor” has COVID-19.

However, the EEOC has made clear that employers may disclose the name of an employee to a public health agency when the employer learns that the employee has COVID-19. The EEOC has also said that a temporary staffing agency or contractor that places an employee in a business’s workplace and then learns the employee has COVID-19 may disclose the employee’s name to the business.

Note that the CDC stopped updating its General Business Frequently Asked Questions (last updated May 24, 2021), and this response is based on the last information provided by the CDC for businesses. Although the CDC is no longer updating this webpage, its guidance with respect to this particular issue has not come into conflict with any recent CDC guidance or other federal agency guidance.

Updated 09.11.2020

Based on the current situation with the COVID-19 pandemic, no laws enforced by the EEOC prevent an employer from following CDC guidelines and other public health department recommendations that mandate employers give notice of an employee’s COVID-19 diagnosis, as discussed in Q. 22. However, the EEOC notes that, even if employees might be able to figure out who had the COVID-19 diagnosis, employers are still prohibited from confirming or revealing the employee’s identity in the notice or when asked by other employees.

Updated 09.11.2020

The EEOC’s updated guidance included a similar question regarding this topic. The ADA requires employers to keep employee medical information confidential, and information that an employee has COVID-19 or symptoms of COVID-19 constitutes medical information. However, the EEOC has explained that just because the information constitutes medical information “does not prevent the manager from reporting to appropriate employer officials so that they can take actions consistent with guidance from the CDC and other public health authorities.”

The EEOC posits that the real question is “what information to report: is it the fact that an employee—unnamed—has symptoms of COVID-19 or a diagnosis, or is it the identity of the employee? Who in the organization needs to know the identity of the employee will depend on each workplace and why a specific official needs this information. Employers should make every effort to limit the number of people who get to know the name of the employee.”

The EEOC also clarifies that the ADA does not “interfere” with an employer’s designated representative interviewing an employee to obtain the names of individuals with whom the employee may have had contact through the workplace, so that the employer can take the appropriate actions.

Employers should review state or local law to confirm that a different analysis does not apply.

Updated 09.11.2020

The EEOC has addressed this question and concluded that the ADA’s confidentiality requirement does not preclude the employee from reporting this type of information to a supervisor.

Updated 09.18.2020

That depends. The CDC’s guidance states, “Employees should not return to work until the criteria to discontinue home isolation are met, in consultation with healthcare providers.” The CDC’s guidance on the criteria to discontinue home isolation depends on whether additional testing will be administered to determine if the person is negative for COVID-19. The CDC no longer recommends that additional testing be administered to determine if a person is negative for COVID-19, except for those who are severely immunocompromised (in which case the decision should be made in consultation with infectious disease experts) and those who need to discontinue isolation or other precautions earlier than would occur under the symptom-based strategy.

If the person tested positive for COVID-19, showed symptoms, and will not receive additional testing, or if the person exhibited symptoms of COVID-19 and was not tested, the person may return to work if the following three criteria are met:

• At least 10 days have passed since the symptoms first appeared.
• At least 24 hours have passed since last fever without the use of fever-reducing medications; and
• Other symptoms have improved (e.g., cough, shortness of breath).

Note that some people with severe illness may need an extended duration of isolation for up to 20 days after the onset of symptoms.

If the person tested positive for COVID-19, showed symptoms, and will receive additional testing, the person may return to work if the following three criteria are met:

• Resolution of fever without the use of fever-reducing medications;
• Improvement in other symptoms (e.g., cough, shortness of breath); and
• Negative COVID-19 test results from at least two consecutive tests taken at least 24 hours apart.

If the person tested positive for COVID-19 but did not exhibit any symptoms, the person may return to work if:

• At least 10 days have passed since the individual’s first COVID-19 test that yielded a positive result; and
• The person remained asymptomatic.

Note that the CDC stopped updating its Guidance for Businesses and Employers Responding to Coronavirus Disease 2019 (COVID-19), and this response is based on the last information provided by the CDC for businesses (last updated March 8, 2021). Although the CDC is no longer updating this webpage, its guidance with respect to this particular issue has not come into conflict with any recent CDC guidance or other federal agency guidance.

Updated 12.04.2020

The CDC recommends that individuals quarantine if they have been in close contact with someone who has had COVID-19. People who are fully vaccinated do NOT need to quarantine after contact with someone who had COVID-19 unless they have symptoms. Exposed individuals (including vaccinated individuals with no symptoms) should get tested 3-5 days after close contact with someone who has COVID-19. Additionally, individuals who have been exposed should wear a mask in indoor public spaces for 14 days following exposure or until obtaining a negative test result. Local public health authorities should be consulted regarding how long a quarantine should last. Health authorities will consider stopping quarantine after day 10 without testing or after day 7 after receiving a negative test result (the test must occur on day 5 or later).

For more information on vaccinated individuals and quarantine requirements, see the CDC page on When You’ve Been Fully Vaccinated.

Close contact means being within six feet of someone who has COVID-19 for a cumulative total of 15 minutes or more over a 24-hour period starting from two days before illness onset (or, for asymptomatic people, two days prior to test specimen collection) until the time the patient is isolated, regardless of whether the individuals were wearing face coverings. 

The CDC also recommends that if the individual ends the quarantine before the 14-day period, the individual must:

• Continue to monitor for symptoms of COVID-19 through the 14th day following exposure;
• If the individual has symptoms, immediately self-isolate and contact their local public health authority or healthcare provider;
• Wear a mask, stay at least six feet from others, wash their hands, avoid crowds, and take other steps to prevent the spread of COVID-19 until the end of the 14-day period.

However, the CDC has stated that it “currently recommends a quarantine period of 14 days.” However, depending on local circumstances, quarantine can end after Day 10 without testing if no symptoms have been reported during daily monitoring. Additionally, when diagnostic resources are available, quarantine can end after Day 7 if an individual tests negative and no symptoms were reported. Individuals must be tested 48 hours before the planned quarantine discontinuation under this method.

Employers should review state and local health department guidance to determine whether employees may return to work after meeting the CDC’s alternative quarantine period guidelines.

UPDATED 12.07.2021

The Cybersecurity and Infrastructure Security Agency has released a memorandum, updated December 16, 2020, regarding the identification of critical infrastructure workplaces during COVID-19. The Centers for Disease Control and Prevention (CDC) provides that “[s]tate and local officials make the final determinations for their jurisdictions about critical infrastructure employees.” The CDC also describes the process for allowing critical infrastructure employees to work if they have been exposed but are not showing symptoms. 

If a critical infrastructure worker has been exposed to COVID-19 and does not have symptoms of COVID-19 or test positive for COVID-19, the CDC has stated that “[e]mployers may consider allowing exposed and asymptomatic critical infrastructure workers to continue to work in select instances when it is necessary to preserve the function of critical infrastructure workplaces. This option should be used as a last resort and only in limited circumstances, such as when cessation of operation of a facility may cause serious harm or danger to public health or safety.”

If these circumstances are met, then the critical infrastructure worker may be permitted to continue working and not quarantine, so long as the following risk mitigation precautions are taken:

• The employee self-screens for symptoms of COVID-19 before coming to work;
• The employee’s temperature is taken and symptoms are assessed before starting their shift;
• The employee self-monitors for symptoms;
• The employee maintains six feet of distance from other employees as work duties permit;
• The employee follows the CDC recommendation to wear a face mask at all times while in the workplace for 14 days after last exposure; and
• The employer cleans and disinfects all areas such as offices, bathrooms, common areas, and shared equipment routinely.

State and local guidance may conflict with this CDC guidance, so employers should consult with counsel on whether critical infrastructure workers should continue working after exposure. The CDC’s guidance as to critical infrastructure employees has not yet been revised regarding individuals who are fully vaccinated, but an update is anticipated.

Note that the CDC stopped updating its General Business Frequently Asked Questions (last updated May 24, 2021) and COVID-19 Critical Infrastructure Sector Response Planning (last updated December 3, 2020), and this response is based on the last information provided by the CDC for businesses. Although the CDC is no longer updating these webpages, its guidance with respect to this particular issue has not come into conflict with any recent CDC guidance or other federal agency guidance.

UPDATED 08.11.2021

Yes, but the EEOC advises employers to consider loosening “fitness for duty” standards to accept forms, stamps, or emails certifying clearance to return to work following symptoms or a positive diagnosis, because doctors and healthcare professionals may be too busy to provide the formal documentation. The CDC likewise recommends that employers should not require a COVID-19 test result or a healthcare provider’s note for employees who are sick to validate their illness, qualify for sick leave, or to return to work. If employers do require such verifications, however, they should be sure to do so consistently to avoid any appearance of disparate treatment.

Be aware, also, that state and local jurisdictions may have orders in place governing whether employers can require fitness-for-duty verifications.

Note that the CDC stopped updating its Guidance for Businesses and Employers Responding to Coronavirus Disease 2019 (COVID-19) (last updated March 8, 2021), and this response is based on the last information provided by the CDC for businesses. Although the CDC is no longer updating this webpage, its guidance with respect to this particular issue has not come into conflict with any recent CDC guidance or other federal agency guidance.

UPDATED 05.15.2020

According to the DOL, the Wage and Hour Division will consider “telemedicine,” which involves face-to-face examinations or treatment of patients by remote video conference through computer or mobile devices, as an in-person visit. The DOL has stated that for a telemedicine visit to be considered in-person, it must include an examination, evaluation, or treatment by a healthcare provider; be permitted and accepted by state licensing authorities; and generally, be performed by video conference.

UPDATED 03.26.2021