4 More COVID-19 Legal Questions You Should Answer



​In two previous columns, prominent labor and employment attorneys from around the country gave their answers to selected COVID-19-related questions. HR professionals have continued to ask questions, and here are more answers.

1. Can we require employees to be tested for COVID-19? 

"Yes," asserted Eric Mackie, an attorney with Ogletree Deakins in Chicago, and Viviane Scott, an attorney with Frankfurt Kurnit in New York City. Employers covered under the Americans with Disabilities Act (ADA) can require their employees to be tested for COVID-19 if the testing is "job-related and consistent with business necessity," they wrote in a joint e-mail, although they cautioned that employers should confirm that no state or local law prohibits them from requiring employee testing.

According to guidance issued by the Equal Employment Opportunity Commission (EEOC), testing is considered job-related and consistent with business necessity if, for example, it is used to confirm an employee's negative COVID-19 status so that he or she can come to the workplace. This includes both initial testing to determine if a worker may enter the workplace and periodic testing to determine if that worker's presence in the workplace poses a threat of infection to others in the workplace. Mackie and Scott noted that if the employee is not working in any in-person capacity, such that there is no risk of that employee infecting any other individual at the worksite, employers likely do not have authority to require that employee be tested.

The EEOC has stated that mandatory COVID-19 testing must be administered consistent with current guidance from the U.S. Centers for Disease Control & Prevention (CDC). The tests themselves must also be considered accurate and reliable.

Mackie and Scott also observed that it's important to remember that nondiscrimination, disability and privacy laws still protect employees in the COVID-19 testing context. "Therefore, if an employer determines that COVID-19 testing would be sufficiently job-related and consistent with business necessity for one category of employees, it should apply the testing requirement equitably across that entire category of employees," they wrote. "In other words, employers should not require only some employees in the workplace to be tested without requiring similarly situated employees in the workplace to be tested as well. Employers should also refrain from implementing testing requirements on any discriminatory (i.e., racial or religious) grounds.

"Finally, if a worker objects to the COVID-19 testing or requests some other method of COVID-19 screening due to their health, disability or religious status, the ADA, Title VII of the Civil Rights Act, the Rehabilitation Act, and/or other state or local law may require the employer to provide some reasonable accommodation to the employee."

2. If an employee tests positive for COVID-19, can we require him or her to have a negative test before returning to work?

Determining when it is safe for an employee to return to the workplace after having COVID-19 can be difficult. According to Mackie and Scott, although federal law and many local laws do not prohibit employers from requiring an employee who has had COVID-19 to test negative before returning to work, the CDC suggests instead requiring employees to be symptom-free for a certain number of days before returning to work. 

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"The CDC recommends employers use this symptom-based strategy due to the possible scarcity of COVID-19 testing and because employees may continue to test positive for COVID-19 long after they have recovered from the infection," Mackie and Scott wrote in the joint e-mail. "Also, decisions about the requirements for a previously infected employee to return to the workplace should take into account individual workplace dynamics and local circumstances (e.g., rates of community transmission and availability of testing)."

3. Who pays for work-from-home expenses?

According to Brad Bartolomeo, an attorney with Lewis Brisbois in New York City, whether and to what extent a business-related expense must be reimbursed depends on federal, state and local laws as well as a variety of factors including the employee's rate of pay, classification, the reason the employee works from home (if it is being mandated by the government or the employer or if it is being offered as a matter of convenience), and whether the expense is in direct consequence of the discharge of the employee's employment duties.

"Gathering this information and applying it on a case-by-case basis to your workforce presents quite a challenge," he said. "However, a good first step in any analysis starts with looking at the Fair Labor Standards Act (FLSA), its implementing regulations and the Department of Labor's (DOL's) COVID-19 FAQ page." The DOL states that "employers may not require employees who are covered by the FLSA to pay or reimburse the employer for such items that are business expenses of the employer if doing so reduces the employee's earnings below the required minimum wage or overtime compensation." 

In addition to federal law, employers also must comply with any state and city requirements applicable to business expense reimbursements. Bartolomeo noted that places such as the District of Columbia, California, Illinois, Iowa, Massachusetts, Montana and New York have their own laws, and each varies in terms of what is considered a telework expense, whether those expenses must be paid by the employer and the amount that must be reimbursed.

4. For California employees, what remote-work expenses should be reimbursed?

According to Jacqueline Cookerly Aguilera, an attorney with Morgan, Lewis & Bockius in Los Angeles, employers must reimburse employees for all reasonable business expenses an employee incurs that are necessary to perform job duties at the direct request of the employer. A California court has held that employers need not reimburse employees for expenses incurred when they voluntarily work from home. "But keep in mind," she said, "employers who strongly encourage employees to telecommute likely cannot argue the attendant expenses are not reimbursable."

Generally, an employer must reimburse employees for work items such as pens, paper, cellphones and laptops, if their use is required by the employer and not otherwise supplied. Employers need not reimburse items purchased for the employee's convenience, such as upgraded monitors and computers. Where an employee has, for example, an unlimited data or Internet usage plan, the employer still must reimburse the employee for the business costs of the plan and must make a reasonable effort to determine the proper amount. "Otherwise, the employer receives a windfall by passing its operating expenses onto the employee," Aguilera said.

Aguilera recommends that employers consider the following best practices and proactively include their telecommuting expense guidelines in their telecommuting policy:

1. Reimburse employees for all reasonable and necessary out-of-pocket expenses an employee incurs in carrying out job duties. Alternatively, provide employees with the necessary supplies and equipment to perform their job remotely (e.g., laptops, monitors, cellphones, office supplies, etc.)
2. Provide employees a monthly stipend for a reasonable percentage of expenses where the employee incurs no additional cost such as Internet and cellphone data plans.  If this reimbursement is insufficient, implement a procedure where an employee may request additional reimbursement with supporting documentation. This type of an exception provision is critical because employees should always be allowed to "prove up" additional incurred expenses.
3. Identify items not necessary for the performance of job duties (e.g., office furniture, printers, etc.) and make clear that employees will not be reimbursed for these items without prior approval.