COVID-19 Resources

Yes, you can ask employees to seek medical attention and get tested for COVID-19 and you can ask them to leave work until such time their medical provider provides a clearance to work.

This is an area subject to interpretation on workplace needs. Both the Americans with Disability Act (ADA) and the Equal Employment Opportunity Commission (EEOC) consider taking an employee’s temperature to be a “medical examination”. The ADA prohibits employers from requiring medical examinations and making disability-related inquires unless (1) the employer can show that the inquiry or exam is job-related and consistent with business necessity; or (2) the employer has a reasonable belief that the employee poses a “direct threat” to the health and safety of the individual or others that cannot otherwise be eliminated or reduced by reasonable accommodation.

This may be considered unlawful, if it is not job-related. Remember that employees may be infected with the COVID-19 virus without the typical symptoms of a fever. In addition, having a fever may not be indicative of COVID-19 virus.

If you introduce new chemicals into the workplace, remember your OSHA Hazard Communications Standards. You are required to provide employees with effective information and training upon initial employment, new assignments and any time you introduce a new chemical hazard into the workplace.

In addition, there may be state specific training needs.

You generally cannot prohibit otherwise legal activity, such as travel abroad by an employee. You can and should monitor employees returning from travel to risky environments for signs of illness. Refer to the CDC website for steps to take.

As noted earlier, the ADA prohibits employers from making disability-related inquires and requiring medical examinations unless it fits into one of the two previously mentioned categories.

The EEOC instructs employers that the assessment by the CDC or public health authorities provides objective evidence needed for disability-related inquiry or medical examination.

No, the government has recently sent a reminder to all employers, especially those involved in providing healthcare, that they must still comply with the protections contained in the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule during the COVID-19 coronavirus outbreak.

If someone is sent home due to illness, follow your policy for return to work protocol. Employees should be allowed to use PTO according to your handbook policy. The center always reserves the right to continue pay without requiring employees to use PTO, but this will set a precedence. You cannot select one employee over another for this benefit.

This is a policy question. In general, if employees miss time from work, paid-time off balances can be applied. Check your handbook to verify if you allow the option of unpaid time off. There are now numerous state mandated time off policies as well. Please consult with your Human Resource Client Manager.

Employees who are concerned (and not otherwise ill) can request time-off. It is up to the discretion of management to allow for time-off in these circumstances. Time-off would be covered by PTO leave.

Section 13(a) of the Occupational Safety and Health Act (OSHA) has specific definitions of what would be considered “imminent danger” where an employee has cause to refuse to work.

FFCRA requires that there be work or telework available for you in order to qualify for paid sick leave, under a Federal, State or local quarantine or isolation order due to COVID-19. You may not take paid sick leave for this qualifying reason is your employer does not have work for you as a result of shelter-in-place or a stay-at-home order.

Generally, no, because in most cases the COVID-19 coronavirus is a temporary condition. If the virus substantially limits a major life activity, such as breathing, then ADA may be implicated. Also, anytime you treat someone as disabled, that could trigger ADA coverage.

Yes, you can send employees home who exhibit signs of illness without violating ADA restrictions.

Employers can provide general information to employees that someone in the company is infected with the virus. To remain compliant with the ADA the employer cannot identify the individual by name or methods of identifying the individual or the individual with whom they may have had contact.

Under the FFCRA you may take paid sick leave only to seek a medical diagnosis or if a health care provider otherwise advises you to self-quarantine. If you did not seek medical care or advice, you are not eligible for this benefit, even if you have COVID-19 symptoms. You are also not eligible for benefits under FFCRA for reasons other than COVID-19.

Yes, under special circumstances and with the Employer’s permission. Exceptions:

• EFMLA and EPSL do not apply to employers with more than 500 employees.
• Employers of health care providers (doctors and others that HHS deems a provider of health care) may elect not to provide this leave to those employees.
• Employers with less than 25 employers do not need to protect a job that is eliminated due to a downturn in business (but there are strict requirements to be able to prove this.

Yes, as an employer you can make this decision, but it is up to the employee to decide whether they want to utilize other paid time off benefits. Please note that the employer will not receive a tax credit for the supplemental pay.

No. The exclusion of compensation in excess of $100,000 annually applies only to cash compensation, not to non-cash benefits, including:

• employer contributions to defined-benefit or defined-contribution retirement plans
• payment for the provision of employee benefits consisting of group health care coverage, including insurance premiums; and payment of state and local taxes assessed on compensation of employees

No. Small business concerns can be eligible borrowers even if they have more than 500 employees, as long as they satisfy the existing statutory and regulatory definition of a “small business concern.”

A business can qualify if it meets the SBA employee-based or revenue-based size standard corresponding to its primary industry

Some ASC’s not eligible for PPP due to Hospital affiliation (for example) may be eligible for the Employee Retention Tax Credit.

Launched by the IRS 3/31/2020. Applies to Wages paid after March 12, 2020, and before Jan. 1, 2021, are eligible for the credit.

Stated purpose is to encourage people to keep employees on their payroll.

Qualifying employers must fall into one of two categories:

1. The employer’s business is fully or partially suspended by government order due to COVID-19 during the calendar quarter.
2. The employer’s gross receipts are below 50% of the comparable quarter in 2019. Once the employer’s gross receipts go above 80% of a comparable quarter in 2019, they no longer qualify after the end of that quarter.

The refundable tax credit is 50% of the first $10,000 of qualifying wages paid per employee per quarter.

Wages paid after March 12, 2020, and before Jan. 1, 2021, are eligible for the credit.

Wages taken into account are not limited to cash payments, but also include employer-cost of provided health care.

Significant provisions of the bill are the coronavirus-related hardship distributions and loans which give qualified individuals access to their individual retirement plan accounts without the current restrictions, and in some cases penalties.

SBA loan program under section 7(a) of the Small Business Act (15 U.S.C. 636(a)).

To provide eligible businesses with cash to meet payroll (including benefits) and other fixed costs (such as rent, interest on mortgages, and utility payments).

Traditional Section 7(a) loan uses include: plant acquisition, construction, conversion, or expansion, including the acquisition of land, material, supplies, equipment, and working capital. These uses are not subject to loan forgiveness under the CARES Act.

Contingent on the Surgery Center being in operation before February 15, 2020 and had employees for whom the borrower paid salaries and payroll taxes or paid independent contractors.

A small business with fewer than 500 employees (The 500-employee threshold includes all employees: full-time, part-time, and PRN).

A small business that otherwise meets the SBA’s size standard.

A 501(c)(3) with fewer than 500 employees.

An individual who operates as a sole proprietor.

An individual who is self-employed who regularly carries on any trade or business.

The maximum loan amount would be 250% of the employer’s average monthly payroll costs with a maximum loan capped at $10 million.

Generally, loans will be forgiven to the extent the borrower demonstrates that the proceeds were used to cover the following during the period between 2/15/2020 through 6/30/2020:

• Payroll costs (as defined above)
• Rent obligated under a lease in effect before 2/15/2020
• Utility costs for services which began before 2/15/2020
• Interest on the business’ mortgage obligations

The list of items that can be purchased with HSA and FSA dollars has increased. For example, HSA’s and FSA’s can be used to purchase over-the-counter drugs.

The limits on the annual amounts that can be contributed into these accounts have not changed, but the deadline for making a single years contribution to the accounts is tied to the tax filing deadline. And because the tax filing deadline has been extended to 7/15/2020, so is the deadline for contributing to these accounts has also been extended.

HSA funds can be used to pay premiums for independent medical insurance plans or for a plan elected through COBRA.

Follow CDC guidelines.  Employee may be eligible for EPSL if a physician has provided them documentation that they need to self-quarantine.  Otherwise, any quarantine period imposed by the center is typically unpaid. However, the center does have the ability to pay for this time but is not required to do so.  Employees can use any accrued PTO and/or sick time during this time if they don’t qualify for EPSL and/or the center is taking the healthcare worker exclusion.

Employee may be eligible for EPSL through 12/31/2020. UPDATE: Employee may be eligible for EPSL through 03/31/2021. Employee should complete a request and send to MedHQ for determination of benefits. However, if the center has taken the healthcare exclusion to the FFCRA, then employee can use PTO/sick. UPDATE: Only employees providing diagnostic services, preventative services, treatment services, or other services closely linked to the provision of direct patient care can now be deemed ineligible for FFCRA leave.

Employee may be eligible for EPSL through 12/31/2020. UPDATE: Employee may be eligible for EPSL through 03/31/2021. Employee should complete a request and send to MedHQ for determination of benefits. However, if the center has taken the healthcare exclusion to the FFCRA, then employee can use PTO/sick. UPDATE: Only employees providing diagnostic services, preventative services, treatment services, or other services closely linked to the provision of direct patient care can now be deemed ineligible for FFCRA leave.

Employee may be eligible for EPSL through 12/31/2020. UPDATE: Employee may be eligible for EPSL through 03/31/2021. Employee should complete a request and send to MedHQ for determination of benefits. However, if the center has taken the healthcare exclusion to the FFCRA, then employee can use PTO/sick. UPDATE: Only employees providing diagnostic services, preventative services, treatment services, or other services closely linked to the provision of direct patient care can now be deemed ineligible for FFCRA leave.

Employee may be eligible for EPSL through 12/31/2020. UPDATE: Employee may be eligible for EPSL through 03/31/2021. Employee should complete a request and send to MedHQ for determination of benefits. However, if the center has taken the healthcare exclusion to the FFCRA, then employee can use PTO/sick. UPDATE: Only employees providing diagnostic services, preventative services, treatment services, or other services closely linked to the provision of direct patient care can now be deemed ineligible for FFCRA leave.

Employee may be eligible for EPSL/EFMLA through 12/31/2020. UPDATE: Employee may be eligible for EPSL through 03/31/2021. The employee is not eligible for EPSL/EFMLA if they are choosing to keep their children at home rather than having to keep their child(ren) home because their child(ren)’s school or day care is closed.  Employee should complete a request and send to MedHQ for determination of benefits. However, if the center has taken the healthcare exclusion to the FFCRA, then employee can use PTO/sick. UPDATE: Only employees providing diagnostic services, preventative services, treatment services, or other services closely linked to the provision of direct patient care can now be deemed ineligible for FFCRA leave.

Employees are only eligible for 80 hours of EPSL. If the employee used 80 hours in the first event, they do not qualify for more EPSL during the second event and can use PTO/sick. However, if the employee only used 40 hours for the first event, the employee is entitled to an additional 40 hours for a second qualifying EPSL event.

Yes, employees are eligible to take paid leave under the FFCRA on days when their child is not permitted to attend school in person and must instead engage in remote learning, as long as the employee needs the leave to actually care for your child during that time and only if no other suitable person is available to do so.

Q:  Can an employer force an employee to work if they have concerns about COVID-19, including a coworker having tested positive, personal medical concerns, or a high-risk family member living in the home?

Generally, an employer may require employees to come to work during the COVID-19 pandemic, however, under federal law employees are entitled to a safe workplace.  If an employee has concerns, an employee has the right to speak up about them without fear of retaliation. Under section 11(c) of the Occupational Safety and Health Act, a worker who refused to work would be protected from retaliation if:

• The worker believes that they faced death or serious injury (and the situation is so clearly hazardous that any reasonable person would believe the same thing);
• The worker tried, where possible, to get his or her employer to correct the condition, was unable to obtain a correction, and there is no other way to do the job safely; or
• The situation is so urgent that the worker does not have time to eliminate the hazard through regulatory channels, such as calling OSHA.

However, generally most workplaces that are providing and following strict masking, social distancing, and PPE protocols are meeting requirements of a safe workplace, and would therefore be within their rights to require employees to report to work.

Q: What should an employer do if an employee entering the worksite requests an alternative method of screening due to a medical condition?

This is a request for reasonable accommodation, and an employer should proceed as it would for any other request for accommodation under the ADA or the Rehabilitation Act. If the requested change is easy to provide and inexpensive, the employer might voluntarily choose to make it available to anyone. Alternatively, if the disability is not obvious or already known, an employer may ask the employee for information to establish that the condition is a disability and what specific limitations require an accommodation. If necessary, an employer also may request medical documentation to support the employee’s request, and then determine if that accommodation or an alternative effective accommodation can be provided, absent undue hardship.

Similarly, if an employee requested an alternative method of screening as a religious accommodation, the employer should determine if accommodation is available under Title VII.

Q: Can my employer require me to receive the COVID-19 vaccine?

Employers have the legal right to mandate that their employees receive a COVID-19 vaccination, according to the guidance provided by the EEOC.

The law allows employers to set “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” There are exceptions for employees with disabilities or “sincerely held” religious beliefs – protected by the Americans with Disabilities Act and Title VII, respectively. In those instances, employers are required to show that an unvaccinated employee poses a “significant risk of substantial harm to the health or safety of the individual or others” in the workplace.

Employers that conclude an unvaccinated employee poses such a threat must try to provide a “reasonable accommodation” to the employee. If there is no reasonable accommodation, or the accommodation places an “undue hardship” on the employer, it is lawful for the employer to “exclude the employee from the workplace,” according to the guidance.

That does not mean the employer may automatically terminate the worker. Before termination, the employer must determine whether “any other rights apply” under federal anti-discrimination laws or federal, state and local laws and regulations.

 

Q: If an employer requires vaccinations when they are available, how should it respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a disability?

If an employee cannot receive the COVID-19 vaccine due to a disability, and it is being required by the employer, the employer must provide a reasonable accommodation unless it poses an undue hardship.  To take any action against the employee, the employer must show that an unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation” and that a reasonable accommodation is unavailable or would pose an undue hardship.

 

Q: If an employer requires vaccinations when they are available, how should it respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a sincerely held religious practice or belief? 

Once an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from receiving the vaccination, the employer must provide a reasonable accommodation for the religious belief, practice, or observance unless it would pose an undue hardship under Title VII of the Civil Rights Act.  Employers should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief.  If, however, an employee requests a religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.

 

Q: Can I request employees to provide documentation that they’ve received the vaccine?

Proof of vaccination should only be requested if the center is making the vaccine mandatory.