Question: Early in the pandemic, we didn’t discipline for absences related to COVID-19 (coronavirus). With all that’s changed since then, can we return to our regular attendance policy?
Answer: Not so fast. In any state, if an employee quarantines or isolates due to a workplace exposure, the employee may have protection under state workers’ compensation rules. California, Oregon, and Washington have specific protections for people who need leave for many COVID-19 related reasons. Also, don’t forget to consider pre-pandemic leave entitlements. Some states have their own family and medical leave laws and paid sick leave laws, which could apply. The federal Family and Medical Leave Act (FMLA) may also apply if an employee or their child, spouse, or parent is ill.
California COVID-19 Protections: As we reported in a recent Alert and in this article, California’s 2022 COVID-19 Supplemental Paid Sick Leave Law (SB 114) provides for protected paid time off for COVID-19 related reasons, including quarantine, isolation, caring for a family member, and school or child care closures, if the employee works for an employer with 26 or more employees. In addition, the Cal/OSHA COVID-19 Emergency Temporary Standard (ETS) has language protecting employees who are removed from work because of a work-related exposure to COVID-19. Cities and counties in California may provide additional COVID-19 protections for employees, so be sure to check their websites for guidance.
Oregon COVID-19 Protections: Oregon OSHA rules prohibit any adverse action against an employee who participates in quarantine or isolation due to COVID-19, regardless of whether the exposure was work-related. The rule further requires that the employee be allowed to work from home if suitable work is available and the employee’s condition allows them to work. Employees who are off for COVID-19 related reasons need to be advised in writing of this right. See our Model Form, Oregon Quarantine or Isolation Notice for COVID-19. For most workers this time can be unpaid (we reported on health care workers with workplace exposure pay requirements here), or you can require the employee to use available sick leave. We reported additional details on the Oregon OSHA rule here. Also, the Oregon Family Leave Act (OFLA) and Oregon sick leave law both allow time off to care for a child whose school or place of care has closed by order of a public official, due to a public health emergency. (See the OFLA rule at 839-009-0230(4)(a) and the Oregon sick leave rule at 839-007-0020(6).)
Washington COVID-19 Protections: Proclamation 21-08.1 “Safe Workers” protects employees if they have been told to isolate or quarantine by a doctor or public health official, or if they have COVID-19 symptoms and are seeking a diagnosis (this includes getting tested). The protection also extends to employees who need time to get vaccinated or recover from vaccination. Washington prohibits you from requiring an employee to use sick leave but allows you to discipline an employee if they aren’t using sick leave to cover an otherwise unprotected absence. That could include instances where the employee is sick with COVID-19 symptoms but hasn’t been advised by a health care provider or public health official to isolate or quarantine and isn’t willing to seek a diagnosis. Also, Washington’s paid sick leave law allows non-exempt (overtime-eligible) employees to take time off to care for a child whose school or place of care has closed by order of a public health official for any health-related reason. (See the Washington paid sick leave statute at RCW 49.46.210 (1)(b)(iii).) Employees in Seattle and Tacoma have similar leave rights, with protections for both exempt and non-exempt workers.
Practical considerations in all states: Even if an employee doesn’t have any protected leave available, keep in mind that you shouldn’t allow anyone to return to work before they qualify for being released from isolation or quarantine under federal, state, or local health guidelines. The states of Arizona, Idaho, Montana, Oregon, and Washington all follow the guidance from the Centers for Disease Control (CDC) on quarantine and isolation. The California Department of Public Health (CDPH) has issued its own guidance, which takes a slightly stricter approach to quarantine. There may also be practical and employee relations reasons for not taking disciplinary action against an employee who needs time off due to COVID-19, even if they’re not eligible for protected leave. We regularly get questions from members wondering if they can discipline an employee for showing up to work sick with symptoms of COVID-19. It’s much more difficult to do so if the employee can allege they felt pressured to come to work because they were out of protected leave. If you have any specific questions or concerns, contact your Vigilant Law Group employment attorney for help.