COVID-19 Return to Work FAQs

After Texas Governor Greg Abbott’s press conference on April 27, returning to the workplace is more of a near reality than ever for many Texans. We have prepared a list of questions that employers may have as they begin the challenging task of returning employees to the workplace. Please contact us if we can help you navigate the processes and practices to get your office open and keep your employees safe.

On May 4, our labor & employment attorneys hosted a webinar titled "Employment Law Q&A as Texans Go Back To Work." Click here to watch a recording. 

Considerations Before Deciding to Reopen a Workplace
Q: What should an employer consider in making the decision to reopen its workplace?
 
A: The CDC has issued new guidance for employers seeking to reopen their workplaces. The CDC recommends that employers consider the following three questions:
  • Is the business located in a community that no longer requires significant restrictions on the return of non-essential workers?
  • In reopening, can the business operate by returning only non-essential employees from the local geographic area (and without non-essential employees who may reside in areas that continue to require more stringent measures)?
  • Are protective measures available for employees who are at a higher risk of exposure or transmission (e.g., sufficient social distancing; duties that minimize contact; personal protection equipment)?
According to CDC guidelines, employers should only reopen their workplaces if the answer to each of the preceding three questions is “yes.”  The CDC further recommends that, even if an employer answers “yes” to each question above, employers should implement the following safety actions:
  • Restricting the use of shared space and items
  • Practicing healthy hygiene, including frequent and thorough handwashing and respiratory etiquette (covering coughs and sneezes)
  • Establishing appropriate cleaning and disinfection protocols
  • Configuring spaced seating/workplaces (more than six feet apart)
  • Staggering work schedules
  • Prohibiting non-essential travel
  • Encouraging remote work, if possible
  • Training employees in the above safety actions
Q: What steps should employers take to prepare for employees returning to work?
 
A: First, employers should analyze the risks associated with their job sites and workforce. Such considerations include where, how, and from what sources workers may be exposed to COVID-19. Likely sources may include coworkers, customers, vendors and the general public.
 
An employer should then implement the CDC’s recommended safety actions outlined above, as well as procedures for ongoing employee monitoring, including:
  • Conduct frequent routine employee health checks;
  • Require employees to stay home if they are sick;
  • Monitor absenteeism;
  • Evaluate the effectiveness of the current leave policies;
  • Implement an action plan for employees who contract COVID-19 or who exhibit symptoms of the virus once in the workplace; and
  • Test emergency communication channels to ensure timely and effective transmission of important health and safety information to employees.
Once an employer has developed and implemented appropriate precautions, it should communicate such precautions to its workforce to assure employees that the workplace environment is one where they can work without concern of unnecessary exposure to COVID-19. Employers should also clearly communicate with and train all employees on the modified workplace procedures and required precautions so that each employee can do their part to protect themselves and each other.
 
Q: What changes to workplace space arrangements should be made prior to reopening?
 
A: The workplace layout may need to be rearranged in order to comply with recommended social distancing requirements. Employers may need to close common areas and reconfigure work stations in open floorplans. Other temporary modifications may include, for example, installing partitions between workspaces, designating one-way foot traffic lanes in hallways, or mounting a plexiglass partition between receptionists and visitor waiting areas. 
Return-to-Work Policies and Employee Health Screenings
Q: Should employers consider implementing return-to-work policies? If so, what should be included?
 
A: Yes. Return-to-work policies are helpful from both a compliance and an employee morale perspective. These policies can be used to detail an employer’s workplace safety measures, as set forth above. Importantly,  such a policy should set forth an employer’s expectations with regard to the employee’s cooperation and compliance concerning COVID-19 screening questions or testing procedures—e.g., inquiries about symptoms, travel, third party exposure, temperature screening or COVID-19 testing (COVID-19 testing procedures are discussed more fully below).
 
Q: May an employer ask employees about whether the employee is experiencing any COVID-19-related symptoms before allowing them to re-enter the workplace?
 
A: Yes. An employer may ask employees if they are experiencing symptoms of COVID-19. Specifically, an employer may ask employees if they have any of the following symptoms: fever, chills, cough, shortness of breath, sore throat, loss of smell or taste and muscle pain. Employers should rely on the CDC for the most up-to-date symptoms of COVID-19 and only ask employees about those identified symptoms. That list is available here.
 
Q: Can an employer check employees’ temperatures to screen for COVID-19 before allowing them to return to work?
 
A: Ordinarily, this would be an impermissible medical examination under the Americans with Disabilities Act. However, the EEOC issued recent guidance which states that an employer may take employees’ temperatures in an effort to maintain a safe workplace in light of COVID-19. 
 
Q: Can an employer require employees to submit to COVID-19 testing before allowing an employee to return to work?
 
A: Generally, yes. While this ordinarily would not be permissible, the extreme risk of COVID-19 resulted in the EEOC issuing recent guidance which approves allowing employers to test for the virus. Specifically, employers may test an employee for COVID-19 if the individual would pose a direct threat to the health of others. In such a case, the employer should document the basis for the testing—like the employee had one or more symptoms, was exposed to another diagnosed with the illness, or had recently traveled to a CDC Level 2 or 3 country.
 
Employees with COVID-19 or Symptoms of COVID-19
Q: If an employee has symptoms of COVID-19 or tests positive for the virus, may an employer require the employee to stay home?
 
A: Yes. All employees experiencing any symptoms of COVID-19 should be required to stay home and away from work. Employers may also require a doctor’s note certifying fitness for duty prior to allowing such an employee to return to work.
 
Q: What other steps should an employer take if an employee tests positive for COVID-19 after returning to work?
 
A: The employee who tested positive should immediately be sent home. Then, the employer should ask that employee to create a list of employees with whom he or she has been in close contact within the prior two weeks. The employer should notify all employees on that list that a co-worker has tested positive and they might have been exposed to the virus. The employer should further recommend that the exposed employees communicate with their physicians about next steps. Although the safest course of action would be to have all of the employees who were in close contact with the positive employee quarantine for 14 days, that may be impracticable. In any event, all such identified employees should be closely monitored.
 
Q: What must an employer do with the COVID-19-related medical documentation and information for its employees and applicants?
 
A: Federal law requires employers to treat employee/applicant medical records as strictly confidential. Such records must be stored separately and apart from an application or personnel file and only disclosed to those who require access to the information to make personnel decisions.
 
Q: What steps should employers take when an employee has been exposed to COVID-19 but is not experiencing symptoms?
 
A: If practicable, employees who have had close contact with a person with COVID-19 should quarantine for 14 days following exposure. If quarantine is not an available option or the individual is a critical infrastructure worker, the employer should carefully monitor the exposed employee for symptoms, require the employee to wear a mask, and ensure the employee maintains a safe distance between the employee and other persons. Additionally, the employer should work with the exposed employee to identify coworkers the employee has had close contact with since exposure and notify those coworkers of their potential exposure.
New Job Applicants
Q: May employers ask job applicants about their symptoms, take their temperature, or require them to take a COVID-19 test?
 
A: After a conditional job offer is made, an employer may require job applicants to answer questions about their symptoms, have their temperature taken, and submit to a COVID-19 test. Offer letters may need to be revised to add these required screening/testing procedures.
 
Q: What does an employer do if a job applicant has symptoms of the virus or tests positive for COVID-19?
 
A: The employer has a two options: (1) delay the applicant’s start date until he or she has  been cleared by a doctor to return to work; or (2) withdraw the applicant’s job offer. 
 
Q: What must an employer do with the COVID-19-related medical documentation and information for its employees and applicants?
 
A: Federal law requires employers to treat employee/applicant medical records as strictly confidential. Such records must be stored separately and apart from an application or personnel file and only disclosed to those who require access to the information to make personnel decisions.  
Addressing Employee Concerns
Q: Can an employee refuse to return to work due to a concern they may contract COVID-19?
 
A: An employee cannot refuse to work based on a general fear that they may contract COVID-19 if they come into the workplace. The Occupational Safety and Health Administration (OSHA) regulations allow employees to refuse to work only where there is an “imminent danger” to the employee’s health or safety. OSHA has interpreted the “imminent danger” standard to require a “reasonable expectation that toxic substances or other health hazards are present and exposure to them will shorten life or cause substantial reduction in physical or mental efficiency.” Most non-healthcare workplaces will not meet this standard unless there has been recent on-site exposure to COVID-19.
 
Q: Should employers consider discouraging at-risk employees (i.e., 65+; those with underlying health conditions) from returning to work?
 
A: Employees age 65 or older and those with certain underlying medical conditions are at increased risk for severe illness if they contract COVID-19. As such, to preserve their health and limit the business’s potential liability, employers should consider discouraging at-risk employees from returning to work, if possible. Employers should explain to any such employees that the purpose of discouraging their return to work is to protect their health. Although employers are not required to pay employees who do not return to work, the TWC has announced that employees who refuse to work because they are 65 or older are still eligible for unemployment benefits.
 
Q: Can an employer require an at-risk employee to sign a waiver before returning to work?‚Äč
 
A: It is unclear and certainly depends on the nature of the workplace. Employers have to balance the risk of requiring a 65+ employee to sign a waiver before returning to work (age discrimination claim) and the risk of a claim from a 65+ employee who falls seriously ill or even dies from the virus. If an employee is 65+ or has an underlying health condition, the employer should consider preparing and implementing a liability waiver to protect against any employee claims regarding COVID-19.
 
Q: Can an employee’s refusal to return to work require the employer to evaluate whether the employee has a disability and consider whether it is required to accommodate the employee? 
 
A: As a threshold matter, the employer must determine whether the employee is disabled. Employers are only required to provide disabled employees with reasonable accommodations that do not cause an undue hardship on the business. With respect to COVID-19, for example, an underlying medical condition that creates vulnerability to infection is likely a disability. Once it has been determined that the employee has a disability,  an employer may be required to allow a disabled employee to work remotely if the employee can still perform the essential functions of his or her job outside of the workplace. If, however, a disabled employee must be at the workplace to perform his or her job, an employer must consider alternative reasonable accommodations, such as allowing the employee to isolate in an unused office to reduce the risk of exposure to the virus or using barriers to maximize the distance between the employee and coworkers, customers, or the general public.  
Returning Formerly Laid Off or Furloughed Employees
Q: When an employer returns formerly laid off or furloughed employees to work, are those employees entitled to mandatory leave benefits under the FFCRA?
 
A: Employers with fewer than 500 employees are generally required to provide 10 days of paid sick leave and expanded benefits under Family Medical Leave Act (FMLA) pursuant to the Families First Coronavirus Response Act (FFCRA). Under the FFCRA, employers must provide up to 80 hours of paid sick leave (subject to certain caps) for employees who are unable to work for expressly defined COVID-19-related reasons. The law also allows employees to take up to 12 weeks of FMLA leave, 10 of which are paid at 2/3 of the employee’s regular rate (subject to certain caps), if they are unable to work because they must care for a child whose school is closed or whose care provider is unavailable due to the COVID-19 pandemic.