COVID-19 Pandemic: Employee’s paid sick leave and supporting documentation

| Mar 30, 2020 | Business Issues, Employment Litigation |

Employers are at different stages of dealing with the COVID-19 crisis. Here we attempt to summarize some of the information about new laws and administrative guidance issued in response to the COVID-19 Pandemic. Some of this information will not apply to all employers, particularly depending on what state and local orders are (or are not) in place. As the situation continues to evolve, we will continue to update our blog as appropriate. As additional developments occur, please be sure to check our Larson & Gaston COVID-19 Resource Center page.

The recent spread of the novel coronavirus (COVID-19) in the United States has caused employers to be increasingly concerned and uncertain regarding the future of their workforces especially in light of the recently issued state and local “Shelter in Place” or “Safer at Home” orders. Employers that do not qualify for an exemption under the applicable state order or that decide to severely curtail or shut down operations need to be informed and decide what they want to do about paid sick leave for employees. These employers may have many questions. Today we address one fundamental question:

Can an employee use Paid Sick Leave due to COVID-19 and what documentation can be required?

Yes. If the employee has paid sick leave available, the employer must provide such leave and compensate the employee under the state’s paid sick leave laws. Paid sick leave can be used for absences due to illness, the diagnosis, care or treatment of an existing health condition or preventative care for the employee or the employee’s family member. Preventative care may include self-quarantine as a result of potential exposure to COVID-19 if quarantine is recommended by civil authorities. Also, there may be other situations where an employee may exercise their right to take paid sick leave, or an employer may allow paid sick leave for preventative care. For example, where there has been exposure to COVID-19 or where the worker has traveled to a high-risk area.

If an employee does not have a medical reason for self-quarantining but has a reasonable belief that reporting to work would pose an imminent and serious danger to his or her life or health, he or she cannot be retaliated against for voicing this concern. 29 C.F.R. § 1977.9(c) (good faith complaints to an employer about occupational health and safety are protected activity under the OSH Act).

The employer cannot require that the worker use paid sick leave; that is the worker’s choice. If the worker decides to use paid sick leave, the employer can require they take a minimum of two hours of paid sick leave. The determination of how much paid sick leave will be used is up to the employee.

With respect to the documentation required, California’s Paid Sick Leave law does not address whether an employer may require employees to provide a doctor’s note to take paid sick leave. The California Department of Industrial Relation’s frequently asked questions also do not address this specific question, and only provides the following guidance about the required notice an employee must provide to take Paid Sick Leave:

The employee must notify the employer in advance if the sick leave is planned, as may be the case with scheduled doctors’ visits. If the need is unforeseeable, the employee need only give notice as soon as practical, as may occur in the case of unanticipated illness or a medical emergency.

In California paid sick leave law permits employees to give notice of sick leave either verbally or in writing. This has been interpreted to mean that employers may not condition paid sick leave on an employee providing medical certification. If the request for a doctor’s note is not related to paid sick leave, it is permissible. However, the Centers for Disease Control recommends not requiring a doctor’s note at this time since health care providers are overwhelmed.

On March 27, 2020, the U.S. Department of Labor (“DOL”) issued further guidance for employers on this specific issue. The DOL states that if an employee is unable to work or telework due to a qualifying reason related to COVID-19, the employee must provide documentation in support of the reasons for the paid sick leave. Such documents may include: a copy of the federal, state or local quarantine or isolation order related to COVID-19, or written documentation by a health care provider advising the employee to self-quarantine due to concerns related to COVID-19.

Ultimately, whether an employee is eligible or paid sick leave and how much depends on whether the employee is exempt or non-exempt, the existence of the employer’s plan, the employee’s eligibility under the plan, the underlying basis for the leave and the employee’s decision to utilize the leave.

Because of frequent developments, and the need to adapt the general guidance specific circumstances, employers should consult counsel regarding specific circumstances. At a general level, the legal rules and guidance we summarize should not be applied in a manner that would prevent employers from taking reasonable, common-sense steps to protect the health and safety of employees, customers, vendors, and their communities. In the context of stopping the spread of COVID-19, prudence suggests being flexible about granting leave and giving employees the benefit of the doubt.

The many fact-specific elements make individualized legal counsel on these questions of critical importance. Given the rapidly developing situation, we encourage employers to reach out to an experienced employment lawyer to get answers to questions regarding specific situations.