Returning to the Workplace: What Employers Need to Know

While there are myriad issues facing employers as we all return to the workplace, here are some of the most frequently asked questions and answers:

What employers are most affected by these recommendations?

The CDC and OSHA guidelines are likely to have the greatest impact on workplaces with an open floor plan and other areas where workers are in close proximity to one another, and workplaces that allow more than one employee to use the same workspace, office equipment, table, desks and other equipment.

What liability does an employer face for COVID-19 in the workplace?

Workplace illnesses and injuries are typically addressed by a state’s workers’ compensation statutory framework, with some exceptions. Generally, for an illness to be compensable under that system, the employee must have contracted it in the course and scope of employment and it must be related to the work performed by that employee.

Because of the pandemic, and the spread of COVID-19, it remains to be seen whether COVID-19 will be considered a workplace illness in workplaces that are not on the front lines (health care, emergency response or other industries where contact with the virus is likely).

There have already been cases filed in courts where employees have sought to bypass the workers’ compensation statutes and instead seek damages through a civil lawsuit for personal injury. These suits may ultimately prove unsuccessful, but they cost time and money to defend and the outcome is uncertain. Accordingly, employers should stay abreast of local, state and federal guidance, including the CDC and OSHA guidance, and implement prote ctive measures as necessary.

Employers also should be aware that workers’ compensation statutes do not preclude OSHA complaints or ADA/discrimination claims (i.e., a lawsuit stemming from a failure to accommodate), and employers are urged to exercise care in crafting a return to work plan that adheres to local, state and federal programs.

Should an employer adopt leave policies that are more liberal than what the law requires?

It depends. If employees have exhausted sick time and paid emergency leave under the Families First Coronavirus Recovery Act, an employer may wish to grant additional paid leave to retain its workforce, depending on cash flows. If an employer has received a loan under the Paycheck Protection Program (PPP) and will be seeking loan forgiveness, paid leave may assist the employer meeting the requirements for forgiveness.

Should an employer consider amending its cafeteria plan to allow more flexibility?

Yes. Some employees may have an increase or decrease in medical or dependent care expenses due to unanticipated effects of the COVID-19 pandemic. Cafeteria plans may be amended to permit employees to make certain prospective mid-year election changes for co-paying company group health insurance, or contributing to health flexible spending account s (FSAs), or dependent care assistance programs during 2020.

The cafeteria plan may also be amended to extend the grace period for using 2019 FSA carryovers from March 15 to December 31, 2020. To allow for this special relief, the employer should amend its plan and provide applicable notice to employees.

If the employer chooses to allow for more flexibility in its cafeteria plan, it must adopt the amendment on or before December 31, 2021. The amendment may be effective retroactively to January 1, 2020.

Does the law permit flexibility in how an employer classifies workers returning to work after the COVID-19 shut-down?

No. The same rules apply for classifying employees and independent contractors. Employers that seek to expand or contract the number of workers classified as employees after the shut-down need to comply with the rules for classification. Separately, misrepresentations regarding employee classification may adversely affect PPP loan forgiveness.

Is an employee eligible for any tax breaks to ease its cash flow worries as employees return to work?

Yes. See discussion of employee retention credit and payroll tax delays here.

May an ADA-covered employer send employees home if they display influenza-like symptoms during a pandemic?
Yes. Employees who become ill with symptoms of influenza-like illness at work during a pandemic should leave the workplace. As COVID-19 poses a threat to other workers, an employer can (and should) send home an employee with COVID-19 or symptoms associated with it without violating the ADA.

During a pandemic, how much information may an ADA-covered employer request from employees who report feeling ill at work or who call in sick?

ADA-covered employers may ask employees who report feeling ill at work, or who call in sick, questions about their symptoms to determine if they have or may have COVID-19. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.

During a pandemic, may an ADA-covered employer take its employees’ temperatures to determine whether they have a fever?

Yes. As with all medical information, the fact that an employee had a fever or other symptoms would be subject to ADA confidentiality requirements. Employers likewise may maintain a log of temperature checks, while ensuring confidentiality.

During a pandemic, may an ADA-covered employer ask employees who do not have influenza symptoms to disclose whether they have a medical condition that the CDC says could make them especially vulnerable to influenza complications?

No. However, under these conditions, employers should encourage all employees who are sick to stay at home, which will benefit all employees including those who may be at increased risk of developing complications.

If an employee voluntarily discloses (without a disability-related inquiry) that he or she has a specific medical condition or disability that puts him or her at increased risk of influenza complications, the employer must keep this information confidential.

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