COVID-19 U.S. Employment Law Update and Guidance for Employers

Depending on an employer’s business, location, nature of the worksite, applicable laws and guidance from federal and local public health authorities, employers may consider some or all of the following when preparing to reopen worksites:

• implementing enhanced cleaning routines for high-traffic or common areas
• installing physical barriers between employee work stations and/or customers
• rearranging workstation spacing to support social distancing efforts
• limiting the number of people who can be in certain locations, such as elevators
• modifying work schedules to minimize the number of people physically in the workplace
• increasing remote-work capabilities
• modifying visitor policies and limit on-site meetings, conferences and events
• requiring (and/or providing) personal protective equipment (PPE), including face coverings and gloves¹
• requiring employees to bring lunches or providing packaged meals to employees to minimize outside exposure
• conducting temperature screenings and/or reliable COVID-19 testing to the extent available (but only pursuant to current guidance from the Centers for Disease Control and Prevention (CDC) and U.S. Food and Drug Administration)²

Employers should be prepared for some forms of government-mandated COVID-19-related restrictions to continue for the foreseeable future. Governmental recommendations and mandates may cover issues like requirements for health screenings and temperature checks, use of masks and other PPE, social distancing, cleaning protocols and contact tracing. For instance, in New York, Illinois and certain other jurisdictions, essential businesses are required to provide face coverings in certain circumstances.³ As with current guidance on these topics and others, there may be considerable variation across jurisdictions. Employers with operations across the United States should therefore consider how best to monitor and implement rapidly developing local requirements and guidance.

The law’s General Duty Clause requires employers to provide their employees with a workplace free from recognized hazards likely to cause death or serious bodily harm.⁴ Employers also may have additional obligations to employees under contract. For example, companies subject to collective bargaining agreements should carefully examine whether terms and conditions of employment — such as shift time and hazard pay — will need to be bargained for with the union as employees return to work.

Employers should continue to monitor CDC and other public health authorities’ guidance regarding employees who have been exposed to COVID-19 but are asymptomatic.

Yes. Employers can and should continue to tell employees that if they have COVID-19 symptoms,⁵ they should stay at home and not risk exposing others to illness. In localities such as Chicago, employees are required by public health order to remain home if they display any symptoms of COVID-19.⁶ Employers who use staffing through agencies should advise their vendors that their employees who are ill or have these symptoms should not report to the worksite either. In some states, wage and hour laws may be implicated where employees who report to work are sent home.⁷

Generally no, this is not permissible under the ADA and other equal employment opportunity (EEO) laws absent a directive from the CDC or state/local public health authorities that employers should take such measures.⁹ This is a complex issue and may require an analysis of the particular facts. We suggest consulting legal counsel before taking any act that requires an employee to leave the workplace due to a high-risk status.

The symptomatic employee should be sent home or told to stay home. The employer should, as a general practice, notify persons who may have been exposed of the possible exposure without identifying the identity of the employee. Employers also should take other appropriate steps in response to the report, including activating specific cleaning protocols as warranted.

Employers of critical infrastructure employees may wish to review CDC-issued guidance regarding a variety of safety practices for employers who choose to permit asymptomatic critical infrastructure employees to continue to work following a potential exposure to COVID-19. Among other things, this guidance states that information on persons who had contact with the employee over the period beginning two days before the employee’s onset of symptoms should be compiled. As noted above, guidance is regularly being updated, and we recommend that you consult with legal counsel as these issues arise in your workplace.

The employee need not self-report for the employer to send an employee exhibiting COVID-19 symptoms home.¹⁰ As discussed, employers should send the employee home and take all appropriate steps to inform other employees of potential exposure without disclosing the identity of the affected employee.

At this time, employers may conduct body temperature screenings of employees before they enter the workplace.¹¹ Employers should, however, consider the fact that not all individuals with COVID-19 have a fever (and an employee may have a fever for a reason other than COVID). Before implementing body temperature screenings, employers may wish to consider alternatives (e.g., employee home/self-screenings) and should develop appropriate protocols for conducting the screening and retaining any confidential medical information consistent with the ADA. Employers may also ask employees to temperature test prior to work every day and to self-certify that they are fever-free before entering the workplace. Records of such temperature checks should be treated as a confidential medical record and handled accordingly. In certain circumstances, wage and hour laws may also require employers to pay employees for “waiting time” spent to be tested, even if the employee is sent home due to fever.¹² With any new form of information collection undertaken as part of COVID-19 response efforts, employers should consider legal compliance obligations related to providing employees appropriate notice of the employer’s information collection and any jurisdiction-specific requirements that may apply.

The EEOC has said that employers subject to the ADA are permitted to ask employees if they are experiencing symptoms associated with COVID-19 consistent with the ADA’s requirements. In a recent webinar, the EEOC indicated that different considerations may apply in cases involving employees who are teleworking and not physically interacting with coworkers.¹³ As always, employers should consider that applicable state law may be less permissive than what the EEOC currently allows.

Employers should conduct these screenings in a consistent manner; the EEOC has advised that employers may ask targeted employees such questions only if the employer has a reasonable belief based on objective evidence that this individual might have COVID-19.¹⁴

Any information regarding an employee’s COVID-19 symptoms or diagnosis must be kept confidential consistent with the legal requirements applicable to employee medical records. Please see the question and answer above for further discussion of these considerations.

Yes. Representatives of the EEOC have advised employers in a recent webinar that their view is that it is more sound to ask if the employee has come into contact with anyone diagnosed with or showing symptoms of COVID-19 rather than asking about family members specifically.¹⁵ Should an employer become aware that an employee has been exposed to COVID-19, as discussed, the employer may take other steps in response, consistent with public health guidance. As with any new form of information collection undertaken as part of COVID-19 response efforts, employers should consider legal compliance obligations related to providing employees appropriate notice of the information collection and any jurisdiction-specific requirements.

The EEOC has advised that an employer may inquire if an employee has traveled to any locations identified by the CDC as a Level 3 risk area. Additionally, employers may ask employees if they have traveled to any areas where state or local public health officials recommend that visitors self-quarantine after visiting. However, an employer should not require employees to report personal travel to any nonaffected areas or other forms of travel. As of May 11, there is a Level 3 Travel Alert on all global destinations.¹⁶ The CDC has also put a Level 3 warning on all cruise travel.¹⁷ The CDC is regularly updating its website, so employers should check periodically for updates at https://www.cdc.gov/coronavirus/2019-ncov/travelers/index.html. Employers should consider obligations to provide appropriate notice to employees regarding the collection of this information.

Employers have a duty to protect their employees from discriminatory or retaliatory behavior by other employees if they are suspected to have COVID-19 or have self-reported. Employers may remind employees that it is against federal law to discriminate against fellow employees based on race, national origin, color, sex, religion, age, disability or genetic information. Supervisors and managers should watch for, stop and report any harassment or discrimination, and employers should review such allegations and take appropriate action. Where COVID-19-related rumors directed at ethnicities arise, employers should consult their company antidiscrimination and antiharassment policies and address conduct that violates such policies.

Yes, and federal, state and local laws may guarantee leave taken for certain COVID-19 reasons for certain employees. Nationwide, eligible employees will be able to take paid job-protected leave under the Families First Coronavirus Relief Act (FFCRA) for a number of COVID-19-related reasons if their employers are covered under the FFCRA. States and cities — like New York¹⁸ and San Francisco¹⁹ — have passed measures to ensure certain employees will be able to take leave for certain COVID-19-related reasons, and we expect similar legislation to be passed in the coming weeks and months. Further, Family and Medical Leave Act-eligible employees will be able to take unpaid leave for covered reasons, and several states (and cities) offer paid or unpaid leave through their own pre-existing programs that certain employees may be eligible to use if they have (or a family member has) COVID-19. Whether employees will be able to use employer-provided leaves is generally determined by the specific policies of that employer. Under California law, employers cannot require quarantined employees to use paid sick leave, but employees may choose to do so.²⁰

Employers may also consider whether to adopt leave-sharing arrangements pursuant to which U.S. employees with accrued leave are permitted to donate their unused leave to a “bank” maintained by the employer for use by other U.S. employees. Employees who must be away from work and would otherwise be required to take unpaid leave then have the opportunity to avail themselves of paid donated leave instead. This Sidley Employee Benefits Update about Employee Leave-Sharing Programs in the Age of COVID-19 provides further information.

The ADA requires that medical information be kept confidential and stored separately from employee personnel files. Managers and supervisors who obtain confidential medical information about employees should therefore continue to follow existing confidentiality protocols to the extent possible. If it is not possible for a supervisor to follow the employer’s standard procedure for maintaining the confidentiality of medical information and storing it separately during this period due to, for instance, remote working requirements, the EEOC has advised that employers should put in place alternative measures to safeguard the information until the regular procedures can be used again. Employers should, as a general matter, take information security compliance obligations and best practices into account and evaluate any changes to the company’s information security posture and risks that result from increased remote working or other changes occasioned in light of the COVID-19 pandemic. Note that state law may also impose requirements on employers with respect to collection, use, retention and/or disclosure of health-related information, including notice-related requirements, which should be examined on a jurisdiction-by-jurisdiction basis.²¹

Under the I-9 rules, employers must review original identity and work authorization documents for every new hire in the physical presence of the employee within three days of the start of work. In light of the national emergency, the agency has announced that it will defer the physical presence requirement associated with the I-9 and permit employers to comply with the process using remote technology. This option is available only to employers that have instituted remote work arrangements. For I-9s executed during this time, employers will be required to conduct physical inspection of the original documents after normal operations resume. Employers who resume operations partially or fully will no longer be eligible to use this temporary workaround and will need to arrange for employees who were remotely onboarded to come to the workplace in person, within three business days of their return, with original documents to update their materials. This can be tricky where employers have offices in multiple states with differing stay-at-home orders or where employees refuse to come into work. We encourage employers to consult with legal counsel to determine the best path forward.

At this time, U.S. Citizenship and Immigration Services has suspended all in-person interviews, including adjustment-of-status interviews and biometrics appointments in the U.S., and further service disruptions are likely to occur. The Department of State has suspended all routine visa services at U.S. consulates abroad. The President has also barred, on a temporary basis, all processing of green-card cases from abroad. In the current situation, employees who are foreign nationals have significant new restrictions on their travel, their ability to obtain visas and travel documents and other considerations. Government operations issues such as the closure of foreign consulates will require additional planning to ensure minimal disruption in work. Depending on the employee’s visa classification, there may be special compliance implications to the employer related to work-from-home policies, workplace office closures, work stoppages and other consequences of disrupted business activity. Please see our Sidley Immigration Update for more information.

¹ Please note that if employers require that employees wear PPE, the employer must provide such equipment at its own expense. While PPE such as a cloth face mask need not meet OSHA standards, PPE such as respirators will need to meet Occupational Safety and Health Administration (OSHA) standards. Also, keep in mind that employers may also be required to provide reasonable accommodations with respect to such protective gear. For example, employers who require that employees wear gloves may be required to provide nonlatex gloves to an employee with an allergy. EEOC, What You Should Know About the ADA, the Rehabilitation Act and Other EEO Laws, https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.

² The Equal Employment Opportunity Commission (EEOC) has stated that given the current circumstances surrounding COVID-19, employers covered by the Americans With Disabilities Act may measure employees’ body temperature. Employers will also be able to administer an “accurate and reliable” COVID-19 test but will need to review guidance from relevant authorities about what is and is not considered safe and accurate testing and should consider incidences of false negatives and false positives associated with a particular test. The EEOC has said that such testing should not take away from the importance of infection control practices including routine disinfection, social distancing, regular handwashing and other measures. EEOC, What You Should Know About the ADA, the Rehabilitation Act and Other EEO Laws, https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.

³ New York Executive Order, https://www.governor.ny.gov/news/no-20216-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency; Illinois Modified Stay at Home Order, https://www2.illinois.gov/dceo/Media/PressReleases/Pages/PR20200423.aspx.

⁴ OSHA, Guidance on Preparing Workplaces for COVID-19, https://www.osha.gov/Publications/OSHA3990.pdf. Some states have their own OSHA-approved state plans that may impose additional obligations.

⁵ CDC, Symptoms of Coronavirus, https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html.

⁶ City of Chicago Orders Sick Residents to Remain Home to Prevent Further Spread of Covid-19, https://www.chicago.gov/city/en/depts/mayor/press_room/press_releases/2020/march/MandateSickResidents.html.

⁷ California Department of Industrial Relations: Coronavirus Disease (COVID-19) FAQs on laws enforced by the California Labor Commissioner’s Office, https://www.dir.ca.gov/dlse/2019-Novel-Coronavirus.htm.

⁸ High-risk individuals, as defined by the CDC, can include those with chronic medical conditions and those who are 65 and older. CDC, People Who Are at Higher Risk for Severe Illness, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html.

⁹ EEOC, What You Should Know About the ADA, the Rehabilitation Act and Other EEO Laws, https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws. (“The ADA and Rehabilitation Act rules continue to apply, but they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC about steps employers should take regarding the Coronavirus.”)

¹⁰ EEOC, What You Should Know About the ADA, the Rehabilitation Act and Other EEO Laws, https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.

¹¹ EEOC, What You Should Know About the ADA, the Rehabilitation Act and Other EEO Laws, https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws. As of May 11, the CDC has recommended that employers consider regular health screenings of temperature and respiratory symptom screening upon employee and visitor arrival each day in any area with minimal to substantial community transmission or impact. CDC: Schools, Workplaces & Community Locations, https://www.cdc.gov/coronavirus/2019-ncov/downloads/community-mitigation-strategy.pdf.

¹² DOL, Fact Sheet #22: Hours Worked Under the Fair Labor Standards Act, https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/whdfs22.pdf; California Department of Industrial Relations, Coronavirus Disease (COVID-19) – FAQs on laws enforced by the California Labor Commissioner’s Office, https://www.dir.ca.gov/dlse/2019-Novel-Coronavirus.htm.

¹³ EEOC Coronavirus Webinar, March 27, 2020, https://www.eeoc.gov/transcript-march-27-2020-outreach-webinar.

¹⁴ EEOC Coronavirus Webinar, March 27, 2020, https://www.eeoc.gov/transcript-march-27-2020-outreach-webinar.

¹⁵ EEOC Coronavirus Webinar, March 27, 2020, https://www.eeoc.gov/transcript-march-27-2020-outreach-webinar. (citing the Genetic Information Nondiscrimination Act).

¹⁶ CDC, Travel Health Notices, https://wwwnc.cdc.gov/travel/notices.

¹⁷ CDC, COVID-19 and Cruise Ship Travel, https://wwwnc.cdc.gov/travel/notices/warning/coronavirus-cruise-ship.

¹⁸ New York State, Emergency COVID-19 Paid Sick Leave, https://www.governor.ny.gov/programs/paid-sick-leave-covid-19-impacted-new-yorkers.

¹⁹ Office of Labor Standards Enforcement, San Francisco Paid Sick Leave & The Coronavirus, https://sfgov.org/olse/san-francisco-paid-sick-leave-coronavirus. 

²⁰ California Department of Industrial Relations: Coronavirus Disease (COVID-19) FAQs on laws enforced by the California Labor Commissioner’s Office, https://www.dir.ca.gov/dlse/2019-Novel-Coronavirus.htm.

²¹ Also note that the Health Insurance Portability and Accountability Act (HIPAA) protections remain in effect, and covered entities will need to comply with its confidentiality requirements. Please see this Sidley Privacy and Cybersecurity Update for additional information on the limited HIPAA waiver in response to COVID-19.