Employers, employees and COVID-19: What’s required by law?
Recently, Stephen Longo was interviewed on KKTV regarding what an employer can require of their employees during the pandemic.
Some top questions related to the workplace during COVID-19 include:
Can my employer make me stay home without sick time?
In short, no, not if you or a family member is sick or quarantined. If you’re sick, a family member is sick or being tested, you will qualify for benefits under the Family First Coronavirus Response Act. That is four days paid leave for testing, two weeks paid leave if you or a family member is sick or quarantined, 12 weeks of leave if you’re home caring for a child. There are some other exceptions and you can also use regular PTO or sick leave.
Can my employer require me to wear a mask, take my temperature before work, etc.?
Yes. Generally, that would not be permitted under EEOC or ADA guidelines; however, the EEOC updated regulations in March to allow for masks and temperature checks. An important caveat is that temperature checks need to be in addition to other policies to limit the spread of COVID19. The other thing to consider is that these temperature checks become medical records and employers need to make sure they are also abiding by privacy and HIPPA regulations.
If someone gets COVID-19, how detailed can their employer be about what they have, where they work, who they are, etc.?
An employer cannot ID the employee – that’s the big one. However, they are required to interview the employee and determine who they may have been exposed to and notify those other individuals that they were in contact with the employee who had COVID19.
Can my employer require me to get tested for COVID-19 OR require me to take an antibody test to see if I've already had COVID-19 before returning to work?
No. They cannot require a test or antibody tests. Frankly, antibody tests are a few to several weeks away from being available in CO anyway. An employer CAN require that an employee get a ‘fit for duty’ or ‘healthy clearance’ from a doctor before returning to work.
A lot of businesses are asking employees to take unpaid time off. What does the law say about furloughs?
Colorado is a right to work or ‘at will’ employment state. Employers can have employees take unpaid time off or fire employees for any reason. Honestly, most companies that are offering unpaid time off are generally doing so to avoid firings and layoffs by having everyone give a little, so no one has to be let go.
Is a business obligated to tell the public where an employee who tested positive for the virus worked in a store?
No; however, they are required to tell people who may have been exposed to that infected employee. Depending on the situation or the store, that may provide an indication where that employee worked.
What about people working from home? What does the law say about working overtime, or odd hours, or taking breaks?
If you’re working from home, you’re still entitled to overtime and breaks as if you were in the office. Nothing changes from a legal standpoint. Your overtime hours may still need to be approved beforehand. I think the change and complication are having systems to record work hours, meal breaks, and overtime through your employer.
Does an employee have the right to demand to work from home?
Yes and no. Generally, employees do not have the right to refuse to come to work unless they believe they are in imminent danger of being exposed. At the same time, employees are protected by the Family Medical Leave Act and the Families First Coronavirus Response Act. We also have state mandates for limited business operations that protect employees. In short, an employer could terminate an employee for refusing to come into work (or demanding to work from home), but I think those are very limited circumstances.
Colorado isn't under a mandatory mask order, but the governor is asking all of us to do our part to help slow the spread. Austin is requiring anyone over the age of 10 to wear one. In Philadelphia, a man was reportedly physically dragged off a city bus by police because he wasn't wearing a mask. Can the state force people to wear one?
It is an interesting constitutional issue. We just saw yesterday that NY issued a statewide order to wear a face-covering in public. Some other states are indicating that they will issue civil citations or tickets for non-compliance. Most of these mandates are being done by executive order and frankly, I think most states, including Colorado, are trying to avoid forcing masks because of the enforcement difficulties and constitutional implications. I think Governor Polis has taken the right approach – as a community, we are capable of doing the right thing to protect those vulnerable to COVID19.