The advice below addresses many of the questions and scenarios that California nonprofit organizations are facing with regard to employees and the Coronavirus.
Q: Can a nonprofit organization require an employee to stay home from work if the employee has had exposure to the Coronavirus, but no symptoms?
A: The organization has a duty to maintain safe and healthy conditions for its employees. If based on an objective standard, the organization has reason to believe that an employee was exposed to COVID-19 and poses a safety threat to other employees, clients, or community members, the organization may place the employee on leave in order for the employee to seek a medical diagnosis.
Consistent with CDC guidance, we recommend that organizations avoid independently making these kinds of medical decisions—such as which individuals should be subject to quarantine—without advice from medical professionals and/or public health officials. In the case of an asymptomatic employee who may have come into contact with someone with COVID-19, the organization should ask the employee to consult with their doctor in order to understand the risk of exposure. Organizations should also contact their local health officials for guidance in how to evaluate risks and appropriate response.
If directed by health officials, nonprofit organizations may need to provide notice to their communities about potential exposure. Organizations should coordinate with local public health officials in providing this notice. It is important to remember that Organizations may not disclose the identity of the subject individual—whether directly or indirectly—to the community, since doing so could violate their right to privacy under the California Constitution and California’s Confidentiality of Medical Information Act.
If public health officials determine that an employee may not attend work for a period of time, organizations should determine whether it would be possible for the employee to perform work remotely.
If the organization is operated out of a shared building or area, the organization should inform building management so they can take whatever precautions they deem necessary.
Q: Can an organization require an employee to stay home from work if the employee has just traveled to a country with a Level 2 or Level 3 Travel Notice?
A: Organizations should rely on the latest guidance of federal, state and local health departments before making any decisions regarding quarantine of employees.
Currently, the CDC calls for quarantine of individuals who have traveled to countries with Level 3 travel notices, but not for countries with Level 2 or 1 travel notices. This means organizations can require individuals returning from Level 3 countries to stay home for a period of 14 days from the time they left an area with widespread or ongoing community spread. The CDC advises that these individuals self-monitor at home and practice social distancing. Organizations that send employees home from work because of their recent travel to a Level 3 country should consider allowing these employees to work remotely on a temporary basis if doing so is consistent with their job duties.
Presently, the only country with a Level 2 travel notice is Japan. The CDC states that travelers who go to Japan “should limit contact with others and monitor their health for 14 days after returning to the United States.” It is unclear exactly what limiting contact with others means, but it appears to be something short of quarantine. We recommend that organizations perform an individualized assessment of the employee’s job duties in order to determine whether it is possible for the employee to return to work while maintaining limited contact with others for this 14-day period. If this is not possible, organizations should consider offering these employees the ability to work remotely if this is consistent with their job duties. When in doubt, organizations should contact their local health department and seek their recommendation, rather than attempting to make medical decisions on their own.
While organizations should be aware of the CDC’s and other federal and state agencies’ current recommendations, it is your local public health department that is in the position of interpreting this guidance in light of the particular circumstances, including with respect to your organization’s geographic area. For example, the CDC states that if conditions worsen to the point where there is widespread transmission of COVID-19, requiring quarantine of individuals who have traveled internationally could be arbitrary in the context of similar risk among others in the community if there is already an outbreak in your organization’s particular area. Decisions that are arbitrary—apart from possibly having no public health benefit—also increase the risk of discrimination claims.
We note that the Department of Industrial Relations (“DIR”) has stated that employers can request that employees inform them if they are planning or have traveled to countries considered by the CDC to be high-risk areas for exposure to COVID-19. However, employees have a right to medical privacy, so employers cannot inquire into areas of medical privacy.
Q: Can an organization ask an employee to leave work and go home if the employee shows symptoms consistent with COVID-19?
A: Yes, an organization can require an employee to go home if the employee is showing symptoms of acute respiratory illness consistent with COVID-19. The CDC reports illnesses have ranged from mild symptoms to severe illness and death for confirmed COVID-19 cases. In its Interim Guidance for Employers and Businesses, the CDC recommends that employees who appear to have acute respiratory illness symptoms (i.e. cough, shortness of breath) upon arrival to work or become sick during the day should be separated from other employees and be sent home immediately.
Organizations should follow their existing sick-leave policies and ensure that they are acting in a non-discriminatory manner by treating employees consistently, including using an objective standard to determine when to send employees home.
Q: Does it matter if the employee insists it’s just a cold or allergies?
A: No, it should not. Organizations are not qualified to distinguish symptoms associated with allergies from those associated with communicable conditions, such as a cold, influenza, or COVID-19. Therefore, in order to promote a safe and healthy environment for all employees and students, organizations should act in a consistent manner and apply the same standard to all employees who are symptomatic.
If an employee provides a certification from their treating physician that the symptoms are non-communicable, the organization may reasonably rely on such assurances and allow the employee to return to work. However, without such certification, the organization should require that the employee remain at home until they are asymptomatic (i.e., showing no signs of fever, coughing and/or shortness of breath).
Q: How do Organizations determine an employee’s pay status if he/she is sent home from work?
A: An employee’s pay status may depend on a number of factors, including whether the employee is sick, whether the employee is exempt or non-exempt, the terms of their employment agreement and the policies contained in the employee handbook. Organizations are advised to seek the advice of legal counsel when making decisions about an employee’s pay status to ensure that they are complying with California wage and hour laws and their contractual obligations.
The DIR has posted FAQs regarding payment of employees and employees’ right to use accrued leave due to COVID-19. These FAQ’s are accessible here: https://www.dir.ca.gov/dlse/2019-Novel-Coronavirus.htm.
1. Sick Employees Who Are Sent Home
If an employee is sent home from work due to having acute respiratory symptoms, the Organization may require and must allow the employee to use accrued sick leave. Paid sick leave can be used for absences due to illness, the diagnosis, care or treatment of an existing health condition or preventative care for the employee or the employee’s family member.
If the employee has no sick leave balance from which to draw or the employee exhausts their sick leave, the organization may allow the employee to elect to draw down accrued vacation or personal leave absent contrary provisions in the employment contract or employee handbook.
If during an employee’s leave, a treating physician diagnoses the employee with COVID-19, the employee may qualify for unpaid leave under the Family Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) (if the organization has 50 or more employees, and if the employee is otherwise eligible for leave) because the condition could constitute a “serious health condition.” Organizations should also review their employee handbook policies, which may afford employees with greater rights than what is required under the law.
Employees who are diagnosed with COVID-19 may also be eligible for State Disability Insurance benefits (SDI), or short-time disability benefits offered by the Organization. An employee who becomes infected in the workplace may also be eligible for Worker’s Compensation benefits.
Also, under California law, if a non-exempt employee reports to their regularly scheduled shift but is required to work fewer hours or is sent home, the employee must be compensated for at least two hours or no more than four hours of reporting time pay for that work day. This applies equally to asymptomatic employees who are sent home due to possible exposure, as discussed in Section 2, below.
2. Asymptomatic Employees Who Are Sent Home Due to Possible Exposure
If an employee who is not sick is sent home from work because of potential exposure to COVID-19, the organization should not require the employee to use his or her sick leave since the employee is not ill, but the organization can allow the employee to use sick leave at his or her option. The DIR explains in its FAQ’s on COVID-19 that an employee is entitled to use sick leave for preventative care, and preventative care may include self-quarantine as a result of potential exposure to COVID-19 if it is recommended by civil authorities, where there has been exposure to COVID-19, or where the worker has traveled to a high risk area.
The DIR has stated that an employer cannot require an employee who is quarantined to exhaust paid sick leave, and it must be the employee’s choice regarding whether to use sick leave.
If the employee declines to use sick leave, has no sick leave balance from which to draw, or the employee exhausts their sick leave, the organization may allow the employee to elect to draw down accrued vacation or personal leave absent contrary provisions in the employment contract or employee handbook.
3. When Employees Have Exhausted Their Paid Leave Balance
If an employee sent home from work has no paid leave balance from which to draw, or has elected not to use it, the organization should place the employee on either paid or unpaid administrative leave.
If the employee is non-exempt, employers are under no obligation to continue paying wages if no work is performed. If the non-exempt employee performs any work while on leave, including checking emails, the employee must be paid for all hours worked.
Under the California Labor Code, employees who are exempt should not have their salaries deducted unless they have not performed work for the entire workweek. This means that if an exempt employee who is sent home has done any work remotely, the employee generally must be paid his or her salary for the full workweek. The Department of Labor Standards Enforcement (DLSE) provides an exception to this general rule and permits deductions of salary in increments of full working days “occasioned by sickness or disability” if the deduction is made “in accordance with a bona fide plan, policy, or practice of providing full compensation for loss of salary occasioned by both sickness and disability and the employee has exhausted his or her leave under the policy.” (DLSE Enforcement Manual 51.6.15.2). Thus, if an employee is sent home because the employee is sick or has COVID-19, and the employee has exhausted his or her accrued sick leave, organizations should be able to dock the employee’s pay for each full work day that the employee is absent and performs no work due to illness (but there can be no salary deduction for a partial day absence).
If an exempt employee sent home from work is not sick, and the employee has exhausted or declined to use his paid time off, the organization ordinarily would have no obligation to continue salary if the employee has performed no work for a full workweek.
Organizations should also consider morale and the public relations implications of not paying employees who are sent home by the organization, without showing signs of illness, and run out of paid time off. Organizations may provide greater benefits to employees than required under the law or contract so long as similarly situated employees are treated equally.
Q: When can an employee who is sent home return to work?
A: A symptomatic employee sent home from work should contact a medical professional for further advice. The employee should engage in self-observation while away from work.
Organizations should instruct a symptomatic employee not to return to work unless the employee is asymptomatic and no longer contagious or if a healthcare provider advises that the employee may return to work. Although it is common to require a note from the employee’s treating physician clearing the employee to return to work, the CDC advises against this due to the additional strain on the already overburdened health care system.
The California Fair Employment and Housing Act (FEHA) also permits employers to require that the employee undergo a medical examination at the employer’s expense for the purpose of determining the employee’s “fitness for duty” prior to their return to work so long as the request is job-related and consistent with business necessity. Organizations are encouraged to seek the advice of legal counsel in determining whether to require a fitness for duty exam.
Organizations should immediately send home any employee who returns to work after an acute respiratory illness and still exhibits symptoms of a communicable disease, and require clearance from a healthcare provider, whether in the form of a doctor’s note, or in appropriate cases, a fitness for duty exam.
For employees who have had exposure to COVID-19, or who have returned from travel to a Level 3 country, current CDC advice provides that COVID-19 symptoms may appear 2-14 days after exposure. Therefore, employees should remain on leave for a period of not less than 14 days after the potential exposure unless a health professional or the county health department advises the employer otherwise. If the employee has not exhibited any symptoms associated with COVID-19 during this time, the employer may allow the employee to return to work.
Q: Can an employee be disciplined for not coming to work because of COVID-19 concerns?
A: Organizations should be careful about disciplining employees who are refusing to come to work or voicing other concerns about the conditions of their employment related to potential exposure to the coronavirus.
The best approach is for organizations to educate employees about current recommendations from local and state health officials or other reliable sources, and to reassure employees that the organization will act consistently with this up-to-date guidance.
Another thing to keep in mind is that, according to the CDC, preliminary data suggests that older adults and persons with underlying health conditions or compromised immune systems might be at greater risk for severe illness from the Coronavirus. Organizations should be alert to whether an employee is refusing to come to work due to concerns about his/her heightened risk of becoming seriously ill. This is because under the Americans with Disabilities Act (“ADA”) and FEHA, employees with known pre-existing conditions, including underlying health conditions or compromised immune systems, may request a reasonable accommodation that will allow them to telecommute as opposed to returning to work. Employers must engage in the interactive process with employees who request reasonable accommodations and must accommodate the request if doing so would not create an undue hardship for the employer’s operation.
Disciplining an employee who refuses to come to work or expresses concern about the coronavirus as related to their employment, may also be protected activity under the National Labor Relations Act (“NLRA”) to the extent it falls within the definition of concerted activity.