How should we handle employees who are calling off of work because of COVID-19?

Educate employees on appropriate reasons for calling off work.

As a preliminary matter, it is vitally important that employees are clearly instructed that they should remain home from work if they are experiencing any symptoms of COVID-19.  The most commonly cited symptoms of COVID-19 are coughing, fever (i.e., 100.4°F or higher) and shortness of breath.  However, other unexplained and/or sudden-onset symptoms such as sore throat, gastro-intestinal symptoms (nausea, vomiting and diarrhea) and loss of taste or smell also should be noted.

Understand the reason the employee is calling off.

The next important step is to speak with the employee and clearly understand the employee’s reason for calling off.  In our experience, the three most frequently cited reasons are:  1) the employee is experiencing symptoms of COVID-19 and/or is infected with COVID-19; 2) the employee is afraid of contracting COVID-19 (or a variation of this reason); and 3) the employee has an unrelated health condition which places him or her at greater risk if he or she contracts COVID-19.  We will address all three scenarios.

1) Absent due to COVID-19 symptoms and/or infection

Offer PTO. Employees who are absent due to COVID-19 symptoms and/or infection should be offered the employer’s usual paid time off (PTO) benefits that are afforded to employees while absent due to illness.  Employers should also keep in mind that COVID-19 would qualify as a “serious health condition” under the Family and Medical Leave Act (FMLA) and employees who are eligible for FMLA leave should be granted leave (and allowed to use PTO).  Employers can and should follow their usual FMLA policies and procedures in cases where employees are seeking leave due to COVID-19.  This specifically includes asking the employee to provide a completed “Certification of Health Care Provider” form.  Please note that typically, COVID-19 is a fairly short-lived illness and most employees out with COVID-19 symptoms will return to work before exhausting their leave eligibility under FMLA.

Contact public health authorities. Due to the public health concerns implicated when health care workers are infected with coronavirus, we also recommend that providers contact appropriate authorities when an employee complains of COVID-19 symptoms.  This will help employees obtain a test for COVID-19, and also may help an employee return to work more expeditiously if it turns out that he or she tests negative.  In addition, if employees know that reporting symptoms will lead to involvement from public health authorities and testing they may be less likely to make a false report that they are experiencing COVID-19 symptoms.

Emergency Paid Sick Leave. Please note that under the Families First Coronavirus Response Act (FFCRA), businesses with fewer than 500 employees must provide Emergency Paid Sick Leave to employees who are infected with COVID-19.  However, employers of employees who are “health care providers” are permitted to exempt those employees from receiving the Emergency Paid Sick Leave benefits provided by that law.  The term “health care providers” has been defined broadly and most employees in long term care could be considered as exempt from the application of the FFCRA if their employers elect to do so. If you have not exempted your employees, they are entitled to receive the Emergency Paid Sick Leave

2) Afraid of contracting COVID-19

Second, some employees report that they do not want to come to work because they fear contracting COVID-19.  Some employees state this explicitly, and others cite some variation on this theme (e.g., don’t want to expose my family, etc.). This is not a permissible reason to miss work under the applicable regulations and/or benefits programs.  Moreover, even under Ohio’s Stay-at-Home Order, employees of nursing facilities and other health care providers are considered essential and are encouraged to continue working.  In this situation, we recommend that employers explain to workers why it is important that they continue working (i.e., now, more than ever, we need everyone available to provide care for residents) and that they are expected and required to report to work.  Further, explain to the employees that there is work available, they are scheduled to work, and that if they fail to report to work they will be treated as having abandoned their job which should disqualify them from receiving unemployment compensation.  Such employees should not be available for any employer-sponsored PTO and should not be eligible for unemployment compensation.

3) Conditions allegedly causing increased risk

The third situation – where employees claim they have a medical condition that places the employee at higher risk if he or she contracts COVID-19 – requires a more nuanced approach.  This also sometimes arises when the employee says they live and and/or provide care to a family member who is at greater risk.  Often, such claims are accompanied by a doctor’s note of some kind.

It is not clear whether such an employee would be eligible for FMLA leave and the Department of Labor has not provided any guidance on this issue.  The FMLA provides protected leave for employees with a serious health condition which makes the employee incapable of working.  It is not clear how this will apply in cases where an employee is completely capable of performing his or her job, but a health care provider has advised him or her to refrain from working due to increased risk.  In short, the question is whether the health care provider’s involvement and the potential increased risk moves this from the general fear category (addressed above) into the FMLA category. This category of leave can also raise the issue of the Americans with Disabilities Act (ADA), and if an employee has an underlying condition that their health care provider has advised makes coming to work an unacceptable risk, employers may need to engage in an interactive process to see if any reasonable accommodations can be made (e.g., providing the employee more PPE).

How an employer treats such situations will depend upon how aggressive they want to be in responding to such situations (which might be impacted by whether the employer is experiencing staffing shortages).  The less aggressive approach would be to treat the matter as a request for FMLA leave and direct the employee to complete the Certification of Health Care Provider.  If the information provided by the employee’s doctor on the Certification form would support a claim for FMLA leave, then the employer can approve such leave.  Requiring the employee to provide the Certification form may also help clarify some cases where the employee’s doctor is not claiming that they employee is unable to work.  A more aggressive approach would be to simply treat such requests as a variation of the “afraid to come to work” situation and deny the leave.  Employers should be aware that taking an aggressive approach could create exposure to liability.

last updated:
Apr 30

The material provided on this page is intended to be informational only and is not intended to be nor is it legal advice. EVOLVE Legal Solutions LLC (EVOLVE) disclaims any and all liability related to or arising from the information contained in this publication. This information is provided “as is” without any express or implied warranty. EVOLVE makes no guarantee that this material will meet your requirements or be of use to you for any specific purpose or application. To the extent this material references any laws or guidance, those references are federal only, and users should consult with their legal counsel regarding any additional and/or conflicting state laws.

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