As more North Carolina businesses prepare to reopen in Phase 2 and are able to expand operations in Phase 3, questions abound about operating in our new normal. Returning to work will stir mixed emotions for both employers and employees. Employers may be eager to get their workforce back and produce revenue again, but they’ll also be concerned about providing a safe workplace. Employees may be looking forward to a return to normal but concerned about being exposed to COVID-19.
We’ve culled common questions being posed by our employment law clients to help others navigate a return to work and business as usual. Businesses that prioritize planning and communication will be more likely to keep employees and customers healthy, increase the likelihood of staying open and avoid legal pitfalls.
What overall guidelines do you recommend for businesses planning to reopen or return to their physical locations?
Employers can take several measures and precautions to make it as safe an environment as possible for employees returning to work. Employment policies related to COVID-19 should be written and provided to all employees. The following resources and guidance will help:
- CDC and OSHA Resources: Check the CDC’s helpful guidelines for all employers and for small businesses. Guidelines for workplace safety have also been published by OSHA.
- Encouraging working from home: In North Carolina, Gov. Cooper’s Phase 1 reopening plan encourages employers to continue teleworking policies.
- Phased approach: If employees have adjusted well to working from home, they should be encouraged to do so. When possible, employers should consider steps for planning a staged return with some employees continuing to work from home. A phased approach allows employers to begin implementing COVID-19 with a small workforce and gives the employer time to make adjustments as needed. Employers may want to consider staggering shifts or even alternate workdays/weeks.
- Company policy manager: While a larger task force may weigh in on COVID-19-related issues, employers should designate an individual responsible for the company’s response and available to answer questions from employees. This person should (1) be familiar with legal requirements, (2) instruct managers on their duties and (3) apply policies consistently across the organization’s workforce to avoid discrimination claims or retaliation.
Can you require an employee to wear personal protective equipment?
Yes, an employer may require its workforce to wear personal protective equipment (PPE), such as masks and gloves, and to observe infection disease prevention and control practices (washing hands and social distancing). Companies should consider providing resources on proper ways to wear masks, hand washing instructions and safe workspaces. While not required, providing masks and distributing hand sanitizers will ensure that employees have access to these in-demand supplies. Employers may also want to tape personal spaces to encourage social distancing.
Can you take an employee’s temperature or ask medical questions?
This is one of the most common questions we’ve received. The short answer is yes — an employer can conduct temperature screenings, according to the EEOC. Employers may also ask whether employees are experiencing COVID-19 symptoms, such as fever, chills, cough, shortness of breath or sore throat. Importantly, employers must keep information about employee illness or symptoms confidential. Employers may also administer COVID-19 testing to employees.
Can you require a doctor’s note for employees to return to work?
Employers may require a doctor’s note for anyone returning to work following an illness —not just related to COVID-19 — certifying that an employee is cleared to return to work. Employers should not ask for a medical diagnosis in the note. However, given that visiting a healthcare provider may be anxiety-provoking, employers should be flexible with the form of such notes. In some cases, an email from a doctor may be sufficient.
What if an employee can’t return to work due to childcare issues?
The Emergency Family and Medical Leave Expansion Act (EFMLA) mandates that certain employers must provide 12 weeks of protected leave and two-thirds of regular pay for any employee that is out of work due to loss of childcare. The EFMLA applies to certain public companies and private employers with less than 500 employees (with certain exemptions, such as for small businesses with fewer than 50 employees if the leave requirements jeopardize the viability of the business). As more businesses return to work, some NC childcare facilities may be closely behind. However, other childcare providers may choose to be more cautious and reopen at a later date.
What if an employee gets sick? Do we need to provide compensation?
Under the Emergency Paid Sick Leave Act (EPSLA), certain employers are required to provide 2 weeks of paid sick leave at regular rate of pay for employees who:
- have been advised by a medical profession to self-quarantine; and
- has experienced COVID-19 symptoms and is seeking a medical diagnosis.
For an employee who is (1) caring for a person subject to a quarantine order; (2) caring for a child whose school or childcare is closed; or (3) experiencing any other substantially similar condition, employers are required to provide 2 weeks of paid sick leave at two-thirds of the regular rate of pay.
The EPSLA applies to certain public companies and private employers with less than 500 employees (with certain exemptions, such as for small businesses with fewer than 50 employees if the leave requirements jeopardize the viability of the business).
We don’t need our full workforce back right now. How should we determine who can return to work?
Employers must make decisions regarding who returns to work and who doesn’t on a neutral basis. Otherwise, they may run the risk of discrimination claims or retaliation. The same applies to decisions to lay off, furlough or reduce working hours for certain employees. Employers must consider and document demographic information when making each of these decisions.
Many of my employees will continue working from home. Are they eligible for overtime if working from home?
For many, 9 – 5 workdays and 40-hour work weeks have lost their structure. Even if working from home on flexible schedule, eligible employees are entitled to overtime pay for work beyond 40 hours. Employers should ensure that employees are accurately keeping and sharing records of time worked with the company.
About the Author:
Marc Gustafson is a partner at the law firm of Bell, Davis & Pitt. His practice focuses on employment law and litigation. Marc is also a mediator certified by the North Carolina Dispute Resolution Commission. He has been recognized by Best Lawyers in America, Legal Elite and Super Lawyers in employment law.