COVID-19 never really went away but now, with the emergence of the highly contagious Delta variant, local governments have an increasing problem. They are finding that employees are unable to work because they are infected with Delta or have been exposed to it. Over the course of the pandemic, official recommendations for dealing with these employees have come from

• the Centers for Disease Control (CDC),
• the North Carolina Department of Health and Human Services (NC DHHS)
• the U.S. Occupational Safety and Health Administration (OSHA) and
• the North Carolina Division of Occupational Safety and Health (NC OSH)

and the recommendations have changed as circumstances have changed. This blog post addresses the current guidance on isolation and quarantine of employees who have been infected by COVID-19 or exposed to it and looks at an employer’s obligation to compensate these employees.

The CDC has a set of guidelines about quarantine and isolation. The guidelines page was updated on July 29, 2021 – that is, after the Delta surge began –  so as of the date of publication of this blog post the guidelines discussed here are current.  They apply to local government employees in all occupations, including employees who deliver health care services and first responders. While employees involved in the delivery of health care, including emergency medical service employees, may be subject to the COVID-19 Emergency Temporary Standard (ETS) issued by OSHA and NC OSH, the ETS generally incorporates the CDC’s recommendations on quarantine, isolation and return to work.

Employees Exposed to COVID-19

The CDC’s recommendations for the self-quarantine of people who have been exposed to a confirmed case of COVID-19 are different for fully vaccinated and unvaccinated employees.

Fully vaccinated employees who have been exposed to COVID-19 do not have to quarantine unless they show symptoms of COVID-19. They should, however, get tested for COVID-19 three to five days after exposure. They should also wear a mask indoors until they receive a negative test result. If a vaccinated employee tests positive after exposure, then they must follow the recommendations for confirmed cases of COVID-19.

Unvaccinated employees who have been exposed to someone with COVID-19 should quarantine at home for 14 days after their last contact with a person who has tested positive for COVID-19. If the local health department allows it, an unvaccinated exposed employee who tests negative on the seventh day after the last exposure may end their quarantine and return to work. If the local health department advises it, an unvaccinated exposed employee who has shown no symptoms by day 10 may end their quarantine and return to work, even if they have not taken a COVID-19 test.

To repeat, if an unvaccinated employee tests positive after exposure, they must follow the recommendations for confirmed cases of COVID-19.

Employees who themselves have had COVID-19 within the last three months do not need to quarantine after a new exposure unless they show symptoms of reinfection.

Employees Infected with the COVID-19 Virus.

For employees who themselves are infected, the CDC’s recommendations are the same for unvaccinated employees and those who are fully vaccinated (the so-called  “breakthrough infections”).

• Infected employees who show symptoms must stay at home for 10 days after symptoms first appeared and until they have gone 24 hours without a fever or without the use of fever-reducing medications, such as aspirin, ibuprofen (Advil, Motrin) or acetaminophen (Tylenol) and other symptoms are improving.
• Infected employees who have no symptoms should stay home for 10 days after the date of their positive COVID-19 test. If symptoms develop, then the guidelines for employees who test positive and have symptoms should be followed.
• Employees subject to OSHA’s ETS should follow these same guidelines. Healthcare workers with severe COVID-19 disease or who are immunocompromised should consult with their physicians about whether a longer isolation period should be observed.

The ETS also has special provisions for employees suspected by a healthcare provider of having COVID-19, employees who experience loss of taste and/or smell, and employees with both a fever above 100.4 degrees and a new unexplained cough.  These employees should be removed from work immediately and kept out of work for 10 days after symptoms first appeared and until they have gone 24 hours without a fever or without the use of fever-reducing medications, such as aspirin, ibuprofen (Advil, Motrin) or acetaminophen (Tylenol) and other symptoms are improving. Alternatively, an employer may have the employee take a PCR (polymerase chain reaction) test for COVID-19 (and only a PCR test) at the employer’s cost. If the test is negative, the employee may return to work. If it is positive, the employee must continue to isolate.

Returning to Work After Absences Due to Exposure or Infection

There is no required return-to-work form or protocol. An employer does not have to accept a doctor’s return to work certification if it is not in accordance with the CDC guidelines or local health department advice. An employer may require a return-to-work certification from a healthcare provider but should make clear to the employee what information they want from the provider. Perhaps the employer wants the provider specifically to affirm that 10 days have passed since the employee first began showing symptoms and that they have gone at least 24 hours without a fever or the use of fever-reducing medications. That is permissible, but would need to be made clear. If an employer is going to require a return-to-work certification, it should consider drafting a form and putting it up on the website for employees and their physicians to download.

Keep in mind that some employees who are absent because they are infected with COVID-19 may qualify for traditional FMLA leave. If the employer is going to require a return-to-work certification, FMLA regulations require that an employee must be advised of the need to provide a return-to-work certification at the time they receive their FMLA designation notice,

Compensating Infected or Exposed Employees

Some employers voluntarily extended the leave provisions of the old Families First Coronavirus Response Act (FFCRA) but most did not.  The rules about compensating employees who are in quarantine or isolation due to COVID-19 are different for employers who extended the FFCRA and those who did not. In addition, the ETS has very specific compensation requirements for healthcare employees who must quarantine or isolate.

Compensation Requirement for Employers who Extended FFCRA Leave

The American Rescue Plan Act allows employers voluntarily to extend the FFCRA’s emergency paid sick leave (EPSL) and emergency FMLA (EFMLA) leave until September 30 in exchange for employment tax credits (for a discussion of the changes that the ARPA made to EPSL and EFMLA, see here).

For employers who extended EPSL, the period during which an infected employee is self-isolating must be paid. Time off must also be paid when

• an exposed employee has been advised by their healthcare provider to quarantine because of the exposure to COVID-19;
• an employee is showing symptoms of COVID-19 and is seeking but has not yet received a medical diagnosis; and
• an employee is waiting for the results of a COVID test because the employee was exposed to COVID-19 or because the employer has asked the employee to get tested.

For a full list of reasons for which an employee may take EPSL, see here (note that time spent getting vaccinated against COVID-19 and any time when the employee cannot work due to side effects from a COVID-19 vaccination are also covered by EPSL).

Nothing prohibits an employer from requiring an employee to use accrued paid leave to satisfy the compensation requirement of EPSL or EFMLA leave.

Compensation Requirement for Employers who Did Not Extend EPSL or EFMLA

Most cities and counties did not extend EPSL or EFMLA. They do not have to compensate their infected or exposed employees for time absent from work. If an absence qualifies for paid leave under an employer’s sick or vacation leave policy, the employee would presumably be able to use any accrued leave that they have available. If an employee does not have accrued paid leave available, their leave would be unpaid.

Some employers adopted COVID-19 leave policies of their own design. These policies vary from employer to employer. Some may allow paid leave for any COVID-19 related reason. If an employer’s personnel policy does not prohibit it, employers may require an unvaccinated employee to use sick days for COVID exposure or illness but pay vaccinated employees in the same circumstance (except for employees covered by the ETS). Employers should follow their own leave policies for absence due to COVID-19 infection or exposure.

Compensation Requirement for Employees Covered by the ETS

If an employee covered by the ETS is sent home because they have tested positive for COVID-19, because their doctor suspects COVID-19 infection or because they have symptoms of COVID-19, they must be compensated at their regular rate of pay up to a maximum of $1,400 per week. If the employer has fewer than 500 employees, then during the third week of absence, it must pay an employee only 2/3 of their regular pay, up to a maximum of $200 per day. If the employee has paid sick or vacation leave, the employer can require the employee to use that leave to satisfy the ETS requirement. Employers with 10 or fewer employees are exempt from the compensation requirement. See the ETS section on “medical removal protection benefits” at 29 CFR § 1910.502(l)(5).

Proof of the Need for COVID-19 Leave and Compensation

As a general rule, employers may require proof of illness when an employee uses sick leave (provided that the employer does not ask about a disability). They may therefore require an infected employee who is absent to provide proof that have been diagnosed with COVID-19, either by submitting a test result or a diagnosis from a health care provider. Employers may also require employees who have been exposed to COVID-19 to explain the circumstances of their exposure. This is true whether an employer has extended emergency paid sick leave or emergency FMLA leave, whether they have adopted their own paid COVID leave policy or whether employees are using regular accrued paid sick or vacation leave or whether the employee is covered by the ETS.