As businesses continue to adapt to the evolving landscape of the COVID-19 pandemic, employers and employees alike are grappling with questions surrounding workplace health and safety. A recurring concern revolves around the role of doctor’s notes, particularly in the context of employee illness, sick leave, and return-to-work protocols. This guide aims to clarify the complexities surrounding “covid doctor’s note” policies, drawing upon established guidelines and legal considerations to provide a comprehensive understanding for employers and employees in English-speaking markets.
When Can Employers Inquire About COVID-19 Symptoms?
Employers have a legitimate need to maintain a safe and healthy work environment. During a pandemic like COVID-19, this responsibility extends to taking reasonable measures to prevent the spread of illness within the workplace. Therefore, it is generally permissible for employers to ask employees if they are experiencing COVID-19 related symptoms.
The Equal Employment Opportunity Commission (EEOC), in its updated pandemic guidance, acknowledges the unique circumstances presented by COVID-19. Asking employees about symptoms such as fever, cough, or shortness of breath is not considered a disability-related action if the illness is akin to seasonal flu. Moreover, if the illness is serious enough to pose a direct threat, the Americans with Disabilities Act (ADA) permits employers to take necessary actions to protect the workplace. The EEOC explicitly recognizes that the COVID-19 pandemic meets this “direct threat” standard.
Employers are encouraged to follow guidance from the Centers for Disease Control and Prevention (CDC) and local public health authorities. The CDC’s guidelines advise that employees with symptoms like fever, cough, or shortness of breath should notify their supervisor and stay home. The CDC has expanded its list of symptoms to include chills, repeated shaking with chills, muscle pain, headache, sore throat, and new loss of taste or smell.
It is crucial for employers to apply these policies uniformly and without discrimination based on protected characteristics such as national origin, gender, or race.
Managing Employees with COVID-19 Symptoms or Exposure
Employers are often faced with decisions regarding employees who exhibit symptoms or have been exposed to COVID-19. Understanding their rights and limitations is crucial for maintaining a safe workplace while respecting employee rights.
Sending Symptomatic Employees Home
Question: May an employer send home an employee involuntarily who has or is exhibiting symptoms of COVID-19?
Answer: Yes. Employers are within their rights to send an employee home if they are displaying COVID-19-related symptoms. This action is supported by the EEOC and aligns with CDC guidance. It’s a measure to prevent potential workplace spread and maintain a healthy environment for all employees.
Handling Asymptomatic Employees After Exposure
Question: May an employer send home or require to work from home an asymptomatic employee who has been in close contact with someone with COVID-19?
Answer: Yes. Precautionary measures are justifiable for asymptomatic employees who have had close contact with a COVID-19 case. The CDC’s Public Health Recommendations for Community-Related Exposure provide guidance here. While primarily for public health authorities, this guidance is relevant for employers.
The CDC recommends a 14-day home stay (work exclusion) for asymptomatic individuals in these situations:
- Close contact with a symptomatic COVID-19 person.
- Household member of a symptomatic COVID-19 person.
- Intimate partner of a symptomatic COVID-19 person.
- Providing care at home without recommended infection control precautions to a symptomatic COVID-19 person.
These recommendations apply when exposure occurs from 48 hours before symptom onset in the symptomatic person until they meet CDC criteria for discontinuing home isolation. During this 14-day period, the CDC advises self-monitoring for symptoms, social distancing, and following CDC guidance if symptoms develop.
“Close contact” is generally defined as being within 6 feet of a COVID-19 case for a prolonged period. Factors influencing this definition include proximity, duration of exposure, whether the symptomatic individual was coughing, and mask usage. “Prolonged period” can range from 10 to 30 minutes or more.
For critical infrastructure employees who are asymptomatic after exposure, the CDC allows them to return to work with precautions: pre-screening, regular monitoring, mandatory mask-wearing at all times in the workplace for 14 days post-exposure, and social distancing as work permits. Work areas must be thoroughly cleaned and disinfected.
Employers should also consult CDC Community Mitigation Plans and specific guidance from state and local public health authorities. Different guidelines apply to healthcare employees.
To prevent stigma and discrimination, employers should rely on CDC guidance for risk assessment. Actions exceeding EEOC, CDC, or local health authority guidance should be carefully considered and may warrant legal counsel.
Managing Employees Returning from Travel
Question: May an employer send home or require to work from home an asymptomatic employee returning from travel to an area with “widespread ongoing” transmission?
Answer: Yes. Similar to exposure scenarios, employers can take precautions for asymptomatic employees returning from travel to high-risk areas. The CDC’s Public Health Recommendations after Travel-Associated COVID-19 Exposure are relevant.
The CDC advises a 14-day home stay for asymptomatic individuals returning from:
- Cruise ship or river boat travel.
- Travel from a country with widespread ongoing transmission (currently, as of May 1, 2020, this includes all countries).
The CDC also recommends travelers within the US evaluate their travel plans due to community spread in many areas. Employers should monitor CDC and local health authority updates, ensuring decisions are not based on race or country of origin.
Requiring Preventative Telework
Question: May an employer require an asymptomatic individual with no known exposure to COVID-19 to telework from home for a certain period of time as a preventive or precautionary measure?
Answer: Generally, yes, if the employee’s job duties allow for telework. Many government “stay-at-home” orders encourage telework. The CDC and EEOC recommend telework as an infection control strategy. The Department of Labor (DOL) supports telework as a prevention strategy and a potential ADA accommodation. Telecommuting is especially useful in areas with documented COVID-19 cases. Employers should consult public health authorities for ongoing recommendations.
Doctor’s Notes and Return-to-Work: What Employers Need to Know
A significant point of contention and confusion revolves around the requirement of doctor’s notes for employees returning to work after COVID-19 related absences. The prevailing guidance emphasizes a shift away from mandatory doctor’s notes in most situations, but nuances and exceptions exist.
CDC Guidance on Doctor’s Notes for Return to Work
Question: When may an employee who was sent home for exhibiting symptoms (e.g., subjective or measured fever, cough, difficulty breathing) return to work?
Answer: The CDC advises against requiring a doctor’s note for an employee’s return to work. However, there are scenarios where a doctor’s note is still relevant and even advisable.
While the CDC generally advises against requiring a doctor’s note, it does state that if a healthcare provider has expressly released an employee to return to work, employers generally should require a doctor’s note. Similarly, if a public health authority has released an employee from isolation or deemed it safe for them to return, employers should typically allow the return under those conditions.
In the absence of explicit direction from a healthcare provider or public health authority, employers should consult CDC guidelines to determine safe return-to-work criteria. The CDC recommends that symptomatic employees stay home until they meet criteria for discontinuing home isolation, in consultation with healthcare providers and local health departments.
The CDC’s “Discontinuation of Home Isolation” guidance for symptomatic individuals with COVID-19 (primarily aimed at healthcare providers and public health officials managing confirmed cases, but applicable as a reasonable benchmark for employers) specifies these conditions for ending home isolation and, by extension, potentially returning to work:
- At least three days (72 hours) have passed since fever resolution without fever-reducing medication (e.g., ibuprofen).
- Improvement in respiratory symptoms (e.g., cough, shortness of breath).
- At least seven days have passed since symptoms first appeared.
A conservative approach for employers, without specific medical or public health direction, is to presume symptoms are COVID-19 related and keep the employee out until at least 72 hours after fever resolution, respiratory symptom improvement, and at least 7 days from symptom onset, aligning with CDC guidance. Policies exceeding CDC guidelines should be carefully considered and may require legal consultation.
Upon return, employers should remind employees about respiratory etiquette, hand hygiene, avoiding contact with sick individuals, and staying home if feeling unwell to protect themselves and coworkers.
Employee Not Well Enough to Return After Isolation Criteria Are Met
Question: If an employee does not feel well enough to return to work after meeting the CDC’s criteria to discontinue home isolation, may he or she remain out of work?
Answer: Yes. Several factors come into play here.
First, employers should adhere to updated CDC and public health authority guidance. If a public health authority or medical provider gives specific restrictions, employers should make reasonable efforts to accommodate them, including providing necessary additional leave.
Second, employers should exercise discretion in minimizing workplace virus spread risk, considering reasonable accommodations for employee requests for additional time off.
Third, employers must be aware of potential leave obligations under the Family and Medical Leave Act (FMLA) for serious health conditions or ADA accommodations (including additional leave) if the illness constitutes an ADA disability. Employers with fewer than 500 employees and public employers should also consider paid sick leave obligations under the Families First Coronavirus Response Act (FFCRA) or state laws.
Many employers may choose to encourage employees to stay home until they feel better, within reason, while being mindful of potential policy abuse and ensuring uniform application of leave policies.
Can Employers Require a Doctor’s Note or COVID-19 Test for Sick Leave or Return to Work?
Question: May an employer require a return-to-work doctor’s note or COVID-19 test result for an employee to validate sick leave or return to work after exhibiting COVID-19 symptoms?
Answer: Generally, no. The CDC advises against requiring a COVID-19 test result or doctor’s note to validate illness, qualify for sick leave, or as a return-to-work prerequisite. This is partly to reduce strain on the healthcare system, as medical facilities may struggle to provide timely documentation.
However, exceptions exist. If an employee’s situation still meets the ADA’s “direct threat” standard upon return, a doctor’s note may be required.
Furthermore, while the CDC advises against return-to-work notes in general, if the illness is an FMLA-qualifying “serious health condition,” employers can require a return-to-work note if they follow FMLA guidelines, including notifying employees of this requirement upfront and applying it consistently for all FMLA leaves.
It’s also important to consider the White House’s “Opening Up America Again” guidelines, which recommend a phased approach and state that during each phase, employers should “not allow symptomatic people to physically return to work until cleared by a medical provider.” Employers should review the latest state and local orders and recommendations and consider requesting medical releases where appropriate, in accordance with such guidance.
Refusing Return to Work Despite a Doctor’s Note
Question: If an employee says he or she is ready to return to work and has a doctor’s return-to-work note, but the employer is concerned the employee will not be able to safely perform his or her duties, may an employer refuse to allow the employee to return to work?
Answer: Yes. If an employee’s return would create an unsafe or unhealthful work environment or pose a direct threat to themselves or others, the employer can refuse to allow their return. Open communication with the employee can help understand their reasons for returning (e.g., exhausted leave, work deadlines) and facilitate a shared decision about their readiness to return.
Key Takeaways for Employers Regarding COVID Doctor’s Notes
- Prioritize CDC and Public Health Guidance: Stay informed about and adhere to the latest recommendations from the CDC and local health authorities regarding COVID-19 workplace safety.
- Doctor’s Notes Generally Not Required: In most cases, avoid requiring doctor’s notes or COVID-19 test results for sick leave or return to work, aligning with CDC recommendations to minimize burden on healthcare systems.
- Exceptions Exist: Doctor’s notes may be appropriate in specific situations, such as when an employee poses a “direct threat,” for FMLA-related absences (with proper FMLA compliance), or when mandated by local or state guidelines.
- Focus on Symptom-Based Criteria: Utilize CDC’s symptom-based criteria for discontinuing home isolation as a guide for return-to-work decisions when a doctor’s note isn’t required or obtainable.
- Maintain Open Communication: Engage in open conversations with employees regarding their health and return-to-work readiness.
- Ensure Non-Discriminatory Practices: Apply all policies uniformly and avoid discriminatory practices based on protected characteristics.
- Consult Legal Counsel When Needed: For complex situations or policies exceeding CDC guidelines, seek legal counsel to ensure compliance and minimize risk.
Navigating COVID-19 in the workplace requires a balanced approach, prioritizing employee safety and wellbeing while adhering to legal guidelines and public health recommendations. Understanding the appropriate use of “covid doctor’s note” policies is a critical component of this effort.
