As our team continues to track COVID-19 developments, we wanted to advise employers that there have been some additional and/or revised federal guidance published recently that impacts employers. This “round up” summarizes the key changes and provides links to the guidance to the extent employers would like to review more closely.
Round Up #1: The CDC Issues Revised Guidance on Return to Work After Potential Exposure to or Contraction of COVID (for non-healthcare workers)
Up until recently, the CDC had been advising employers to decide whether a worker who was either confirmed or suspected to have COVID-19 using either the “test-based strategy” or “symptom-based strategy.” In short, employees who tested positive for COVID-19 or experienced symptoms were only able to return to the workplace if:
- At least 72 hours had passed since recovery (defined as resolution of fever without the use of fever-reducing medications and improvement in respiratory symptoms); and at least 10 days have passed since the onset of symptoms (the “symptom-based strategy”); or
- The employee’s symptoms improved and was fever-free without the use of fever-reducing medications, and the employee received two negative tests in a row using specimens collected at least 24 hours apart (the “test-based strategy”).
As of July 20, 2020, the CDC no longer recommends the test-based strategy for most cases. The new guidance, which is available HERE, also amends the symptom-based strategy. Per the CDC, employees with COVID-19 who have symptoms and were directed to care for themselves at home may discontinue isolation (which includes returning to work) under the following conditions:
- At least 10 days have passed since symptom onset;
- At least 24 hours have passed since resolution of fever without the use of fever-reducing medications; and
- Other symptoms have improved.
The CDC warns that individuals with severe cases of the virus may need to quarantine for up to 20 days after the onset of symptoms.
Per the amended guidance, COVID-19 testing “could be considered for persons who are severely immunocompromised.” For anyone else, the “test-based strategy is no longer recommended except to discontinue isolation or other precautions earlier than would occur under the symptom-based strategy outlined above.” Thus, it appears that a worker whose symptoms and fever have dissipated may discontinue isolation and return to the workplace earlier than 10 days if the employee receives two negative COVID-19 test results from specimens taken at least 24 hours apart.
Asymptomatic workers who tested positive for COVID-19 are recommended to wait 10 days after the date of the first positive test before they return to the workplace.
Interestingly, the new guidance appears to conflict with other CDC guidance, which allows individuals who are potentially exposed to return to the workplace after 14 days of quarantine following the last exposure (even if no symptoms ever arise). As the CDC itself recognizes, “it is possible that a person known to be infected could leave isolation earlier than a person who is quarantined because of the possibility they are infected.”
As the CDC acknowledges, its guidance sets a floor for employers to follow, but states and localities are free to adopt their own return-to-work guidance and many of them have, including New York. In addition, employers are encouraged to re-visit their employee screening questions, to ensure that the questions incorporate the most recent CDC or state guidance.
Round Up #2: The DOL Issues Additional Guidance on Unemployment Benefits
When the Coronavirus Aid, Relief and Economic Security (“CARES”) Act was signed into law earlier this year, it established the Pandemic Unemployment Assistance (“PUA”) program, which expanded unemployment insurance benefits to individuals who traditionally were not eligible for such benefits and are unemployed, partially unemployed, or unable or unavailable to work because of specific COVID-19 related reasons.
The DOL’s recent guidance found HERE addresses several issues regarding the PUA program. Here we are highlighting a few of those issues, which relate to questions we have been receiving from clients:
- The guidance states that when an individual refuses work due to a legitimate COVID-19 health and safety concern, they may still be eligible for PUA benefits if the work that is offered to the individual unreasonably exposes them to COVID-19. In such cases, the state may determine that the work is not suitable or that there exists “good cause” for the individual to refuse the work, and the individual may be eligible for benefits so long as they are otherwise qualified.
- The guidance also states that an individual who has been disqualified from regular unemployment benefits because of a prior employment separation issue may nevertheless still be eligible for unemployment benefits if they are currently unable or unavailable to work for one of the COVID-19 related reasons.
Round Up #3: The DOL Issues Additional FAQs Concerning Return to Work Issues and COVID-19 Related Leaves
Finally, the DOL recently issued updates to its various FAQs concerning return to work issues and COVID-19 related leave benefits, including the Families First Coronavirus Response Act (“FFCRA”) FAQs (questions 94-97), the Fair Labor Standards Act (“FLSA”) FAQs (questions 14-19), and the Family and Medical Leave Act (“FMLA”) FAQs (questions 12-13).
Some highlights in the updates include new guidance, which states that:
- If an employee is returning from leave under FFCRA that they took to care for a family member with COVID-19, they must be reinstated to the same or equivalent position, but they may be temporarily reinstated to an equivalent position that requires less interaction with other employees.
- Employers may institute policies, which require employees who have interacted with someone who has tested positive for COVID-19 to telework or take leave until they test negative for COVID-19. However, this policy cannot target only employees who have taken FFCRA leave (to care for a sick relative, for example). Rather, it must apply to all employees. Remember, however, other laws may impact how employers conduct COVID-19 tests (the DOL points to the EEOC’s guidance, which can be found here: HERE).
- Furlough periods do not count toward an employee’s entitlement to leave under FFCRA. For example, if an employee used up all 80 hours of paid sick leave prior to being furloughed, they are not eligible for an additional 80 hours upon their reinstatement. If an employee used part of their leave entitlement prior to being furloughed, they would be eligible to take the remainder of that time after reinstatement. Importantly, employers may not extend periods of furlough just because an employee is expected to be taking additional leave under FFCRA upon reinstatement.
- Telemedicine visits will be considered “in person” visits under the FMLA until December 31, 2020.
If you have any questions relating to this eAlert, please reach out to the NFC Attorney with whom you typically work, or call us at 973.665.9100. We are happy to assist with this or any COVID-19 related issue.