Your employee just returned from a vacation in China. They show no symptoms of illness. Can you nevertheless require them to stay home from work?

The short answer is “yes.”

But what if the asymptomatic employee simply lives with someone who recently returned from Hong Kong, where the extent of the infection is as yet unknown? What if they returned from Canada, where the infection is not widespread? And does an employer have to pay workers if it requires them to stay home? Below are tips for implementing mandatory leave should the need arise.

Avoid National Origin Discrimination

As a preliminary matter, avoid creating a discriminatory policy that targets employees based on their national origin or the national origin of their family, such as China, Hong Kong, or Canada. Rather than focus on the country, the policy should apply to any worker who recently returned, or lives with someone who recently returned, from a region infected with coronavirus. 

Avoid Disability Claims

At least one court has ruled that an employer’s fear that an employee may have contacted a disease while traveling does not create a disability claim. But not all courts have addressed the issue. An employee could assert that the employer took an adverse action because it perceived the employee as disabled (sick from the coronavirus). 

The best way to defend against potential disability claims is to act with care in deciding the parameters of a mandatory leave policy. An employer has the ability to decide how much risk of workplace infection it wants to take. However, it will have to strike a balance. It may not be reasonable to force a worker to stay home if their spouse just returned from Canada or if the worker travelled to China six months ago. And an overbroad policy may ultimately result in the business having too few employees at work.  

On the other hand, if employers fail to require infected workers to stay home and the entire workforce becomes infected, it could also have a negative impact on the business. The balance between protecting workers from illness, protecting the business from claims, and keeping the doors open is tricky and may need to be frequently reconsidered and adjusted.

In addition, the length of employer-imposed leave for asymptomatic workers should be rationally based. Currently, the Centers for Disease Control and Prevention (“CDC”) surmises that the incubation period for coronavirus is 2-14 days. An employer’s required leave for an employee who remains asymptomatic should be consistent with this timeframe.

Pay for Work

Whether the employer must pay the worker to stay home depends on whether the employee is exempt or non-exempt from the Fair Labor Standards Act. If the employee is exempt, the employer must pay the worker their full salary for any workweek in which they perform work. Therefore, if the worker checks email from home, attends meetings via conference call, or otherwise performs work from home, then that employee must be paid their full salary for that workweek.  

An hourly worker, likewise, must be paid for any work time regardless of where they perform the work. If the employer can provide the technology or materials to allow the asymptomatic employee to work from home, the employer may require it and must pay the employee for the work. If the non-exempt worker cannot perform their duties from home, then the employer is not required to pay the worker. In this tight job market, however, it may be wise to pay the worker anyway to ensure their return to your establishment once leave concludes.

Using PTO/Sick Pay for Leave

Depending on the employer’s policy, the employee may be allowed or required to use PTO to cover any leave. And, of course, if the employee becomes ill, provide them with all sick leave available under law and your policies. Check your policies and proactively prepare.

Public Health Officials’ Mandates

Further, public health officials may require “high risk” employees (as defined by the CDC) to stay home. If so, the pay rules described above remain the same. 

Please see our COVID-19 Resource page for more information.

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