As employers continue to navigate the COVID-19 pandemic, below are some of the current issues we are addressing.
1. UPDATED RETURN-TO-WORK GUIDANCE
On July 20, 2020, the CDC updated its guidance for determining when individuals with COVID-19 may discontinue isolation and return to work. Whereas the CDC previously recommended either a test-based strategy or a symptom-based strategy, the CDC now recommends that employers should utilize only symptom-based criteria for determining when and how employees may return to work. The guidance provides that persons with COVID-19 who were directed to care for themselves at home may discontinue isolation if:
• At least 10 days have passed since symptom onset and
• At least 24 hours have passed since resolution of fever without the use of fever-reducing medications and
• All COVID-related symptoms (e.g., cough, shortness of breath) have improved.
In light of the CDC’s updated guidance, we recommend that employers follow this symptom-based approach when determining when employees may return to work following an absence due to COVID-19.
2. CAN I STILL REQUIRE EMPLOYEES TO UNDERGO COVID-19 TESTING BEFORE THEY RETURN TO WORK?
Despite the CDC’s latest guidance, the CDC acknowledges that a test-based strategy may be utilized in the following circumstances:
• With individuals who are severely immunocompromised;
• When individuals wish to discontinue isolation or other precautions earlier than would occur under the symptom-based strategy;
• Depending upon a healthcare provider’s advice and the availability of testing.
Note that where a test-based strategy is used, the CDC requires negative test results from at least two (2) consecutive respiratory specimens collected ≥24 hours apart. All test results should be final before isolation is ended.
3. DOES THE 14 DAY QUARANTINE STILL APPLY?
The CDC continues to recommend that individuals with known exposure to COVID-19 undergo fourteen (14) days of quarantine.
4. IMPACT OF CONTINUED SCHOOL CLOSURES
A. CAN EMPLOYEES SEEK EMERGENCY LEAVE FOR SCHOOL CLOSURES IN THE FALL OF 2020?
The Families First Coronavirus Response Act (FFCRA) provides benefits for qualified employees who are unable to work because of the need to care for their child because the child’s school or place of care has been closed due to COVID-19. Although most Florida school districts have not yet formally announced whether or not they will open for on-campus learning in the Fall of 2020, if schools do remain closed, qualified employees will be entitled to Emergency Paid Sick Leave (EPSL) and Emergency FMLA (E-FMLA) benefits under the FFCRA, which is in effect until December 31, 2020 1.
B. WILL EMPLOYEES QUALIFY FOR LEAVE UNDER FFCRA IF SCHOOLS GIVE THE OPTION OF IN-PERSON INSTRUCTION OR VIRTUAL LEARNING, AND THEY OPT FOR VIRTUAL LEARNING?
Likely not. If an employee’s child is enrolled in school that opens but gives families the option of virtual learning, the employee will not qualify for EPSL or E-FMLA because the school is not actually closed due to COVID-19. School closure is required for EPSL and E-FMLA benefits under FFCRA.
C. WILL EMPLOYEES QUALIFY FOR LEAVE UNDER FFCRA IF THEIR CHILD’S SCHOOL CLOSES BUT OTHER DISTRICT SCHOOLS OPEN FOR IN-PERSON INSTRUCTION?
This question is up for debate and the DOL has not yet weighed in. On the one hand, employers might reasonably deny FFCRA benefits to employees if there is a potential open school in the employee’s district which could enroll the employee’s child, even if the child’s prior/current school is closed. On the other hand, it might be unreasonable to expect an employee to remove their child from their current school and enroll them in a new school. It might also place an untenable burden on those schools within a district that elect to open up to in-person instruction.
5. CAN EMPLOYERS EXEMPT HEALTH CARE PROVIDERS AND EMERGENCY RESPONDERS IF THEY DID NOT PREVIOUSLY DO SO?
The FFCRA permits employers to exempt health care providers and emergency responders from receiving its leave benefits. Many employers who previously elected not to exempt such employees are now determining that they can no longer operate effectively with their health care providers and/or emergency responders taking leave pursuant to the FFCRA. Because the FFCRA specifically allows employers the option to exempt or not exempt these employees in accordance with their needs, employers may reasonably take steps to change their prior policies with regard to exempting these workers. Any policy change should be done in an equitable, consistent manner.
Under FFCRA, “Health Care Provider includes any individual who is capable of providing health care services necessary to combat the COVID-19 public health emergency, including not only medical professionals, but also workers necessary to keep hospitals and health care facilities supplied and operational, workers involved in research, development, and production of equipment, drugs, vaccines, and other items needed to combat COVID-19. “Emergency Responder” includes those who 1) interact with and aid individuals with physical or mental health issues; 2) ensure the welfare and safety of our communities and Nation; 3) have specialized training relevant to emergency response; and, 4) provide essential services relevant to the public’s health and well-being.
The information contained in this document does not constitute legal advice. If you have questions about the matters discussed, please feel free to contact any of our labor and employment lawyers.
1 Employees who have already used all 12 weeks (of Emergency-FMLA and/or FMLA leave) in the designated 12 month year are not eligible for additional leave under Emergency-FMLA or FMLA.