Employers

And those prohibitions go for potential new hires, she added.

“You are allowed to withdraw an offer until they are free of symptoms, or have people stay home,” if they have been in contact with sick people or tested positive.

Q: How long can workers be sent home over concerns they may transmit COVID-19?

A: Pace said that the rules are somewhat uneven here because people who have had contact with COVID-19 positive family members or others are supposed to quarantine for 14 days, according to the CDC.

But people who actually have been sick can return to work after three days of being symptom-free without the aid of medication or after 10 days since the illness began, according to the CDC.

And workers must disclose illness, she said.

“People have to tell the company, the HR people, if they are sick,” she said. “This is different during the pandemic. We’ve been doing policies that each employee must notify HR if anyone in their household has tested COVID positive.”

Q: Can a business force workers to wear masks? What about customers?

A: “OSHA allows companies to require employees to wear a mask,” Pace said. “They can make you do that.”

They also can ask the same of customers, though it is less clear how strict enforcement will be for such policies. Major chains are beginning to enact such policies, she said.

The wearing of masks and adhering to social-distancing protocols like standing six feet apart could present a thorny issue around the workplace, as people vary in terms of how much they agree with these policies, said Karen Stafford, Arizona president of the Employers Council in Scottsdale.

But if an employer establishes these practices as company policy, then they would want to enforce them like any other policy, she said.

Q: Can employers take a worker’s temperature as a condition of working?

A: Usually, no, but during the pandemic, yes, Balitis said. The EEOC issued guidance that allows temperature checks during a pandemic, but it also warns that people with the virus don’t always show a fever.

In a new survey by human-resources consultant Mercer, 35% of employer respondents said they plan to conduct COVID-19 screening and assessments onsite, most commonly with temperature screenings (26%) and/or by administering a symptom questionnaire (20%). Only 4% plan to screen for antibodies.

Q: Can employers require workers to take a COVID-19 test to return to work?

A: Yes. Again, under normal circumstances this would not be permitted, but the EEOC guidance on this subject says employers are allowed to do this. But it warns such testing, if it can even be obtained, should not replace social distancing, hand washing and other prevention measures.

Q: What if an employer has concerns a worker is at extra risk because the person is older, pregnant, asthmatic, etc.? What if the employee is concerned about exposure on the job to COVID-19?

A: Employers can’t simply reassign workers out of concern for them if they are following state and federal guidelines for disease prevention, Pace said.

“Technically as an employer you cannot make judgments about employees in trying to protect them because you think it’s a good thing to do,” she said. “It’s against the ADA.”

But if the employee shares a concern about being at extra risk in a certain position, employers should provide them with a work-release form for a doctor to fill out. This document is then used as the basis for a conversation in which the worker can present options for how the employer can accommodate their needs.

“Then the company is supposed to look at that and figure out if they can accommodate those restrictions or not,” Pace said. “It is the employer’s choice to accept what the employee or healthcare provider suggests. They have to be fair about it and reasonable and try to fairly address the situation.”

The company is supposed to look for vacant positions within the company before letting a worker go, she said.

Q: If a business laid off or furloughed workers, and now is reopening, who should be rehired first?

A: If the workforce is unionized, the employer has to refer to the collective bargaining agreement. Otherwise, furloughed worker should come back first, Balitis said.

“For most businesses it will be the natural order,” he said. “That’s why they furloughed some and laid off others.”

Q: What criteria can employers consider when bringing people back? Can they focus on workers who don’t have underlying health conditions, or age, to protect people from getting sick on the job?

A: No.

“This is a little counter intuitive,” Balitis said. “Employers are better off considering benign factors like seniority … as opposed to focusing on who may be at higher risk like who is older, who has asthma. If they start looking at those factors they are going to run into discrimination problems.”

Balitis said once employers have a list of workers to bring back, they should review it to ensure they have not inadvertently weighted it against any particular group.

“For example, if the list is 20 people and only four are minorities, that should raise a flag for the employer,” he said. “It could easily happen.”

Q: How much sick time do workers come back with?

A: In Arizona, if a business lets a worker go and then rehires them within six months, that person maintains all the accrued and unused sick time they had before they were fired, Balitis said.

In addition, new paid sick-leave entitlements passed by Congress are valid through the end of the year.

In addition, employees retain all unused Family Medical Leave Act benefits. So if they were, for example, five weeks into an FMLA leave, and then furloughed, then brought back, they retain the remaining five weeks of FMLA leave they didn’t use, Balitis said.

Incidentally, businesses would be wise to familiarize themselves with workplace regulations, including new ones.

The Department of Labor in April ordered Bear Creek Electrical of Tucson to pay an employee $1,600 after department investigators found the company had refused to provide the man with paid sick leave as required under a newly passed federal emergency act. Healthcare providers had ordered the man to self-quarantine after he showed potential coronavirus symptoms.

Q: Are you legally bound to hold to promises made early in the pandemic regarding hours, wages, positions, etc. when you reopen?

A: No, but it’s a good idea to review what employees were told when this all began, Balitis said.

“They may have made representations to employees about what the circumstances may be,” he said. “Maybe they were trying to be compassionate about the situation. Come time to come back, those folks are going to focus like a laser on those representations.”

It would be difficult for a worker to claim such a promise is legally binding, but employers need to consider those promises from a morale standpoint, he said.

“That’s less legal advice than HR coaching for businesses,” he said.

Q: Will these guidelines change? A: The rules and guidance are constantly shifting. Balitis said business owners and human-resource managers will need to continue watching for federal changes that pertain to reopening businesses.

“During the restart period, employers also should keep a close eye on Congress and federal legislation that is under consideration relating to businesses ramping back up,” he said. “For example, one bill already has been introduced that would require employers to implement heightened precautionary measures that go beyond OSHA and CDC guidelines.”

Q: Given social-distancing and other concerns, what other workplace changes might be coming?

These will vary by employer, but cubicles might be reconfigured, fewer people allowed in breakrooms, more Plexiglass partitions set up and so on. Work hours and shifts also could change.

“Maybe half the staff works Monday and Tuesday only, and the rest works Wednesday, Thursday and Friday, and then they flop the next week,” said Stafford. “Or you have a morning crew and an afternoon crew.”

In the Mercer survey, 63% of employer respondents said they are considering “staggered returns,” perhaps with people with last names starting with A-M working on certain days, and those with names beginning with N-Z working other days. Many employers plan to create smaller work groups.

Q: Are employers required to allow employees now working remotely to continue to do so?

No, and this could be another challenge for many businesses. Given the mask-wearing and social-distancing challenges, some employers will want to allow certain employees to continue working from home, at least temporarily. But it might not last for long.

In a new survey by staffing-firm Robert Half, 79% of the professional workers who responded said they’d like to work remotely more often than they had before the coronavirus outbreak, with parents with kids at home especially receptive to the idea. But in the separate survey of employers by Mercer, only 8% of these businesses said they plan to allow most employees to continue to work virtually as much as they want.

The changes brought about by the health emergency are “an opportunity set a plan and to set expectations,” said Stafford of the Employers Council.