UPDATED: What Employers Need to Know During the Coronavirus Pandemic
This Employment Law Update was originally published on 3/20/2020 and has been updated with new information. For your convenience, information that has been added since our last update is underlined.
As of April 3, 2020, there were more than 200,000 confirmed U.S. cases of COVID-19. That number is likely to continue rising significantly in the next few days or weeks. Governments at the federal, state, and local levels are passing legislation, issuing orders, and offering guidance at a breakneck pace in efforts to contain both the virus and its economic fallout.
Many employers find themselves uncertain as to what their rights and obligations with respect to their employees are under such extraordinary circumstances. This update provides general guidance on common questions from employers, as well as on the Families First Coronavirus Response Act (FFCRA) and the Department of Labor’s (DOL) FFCRA regulations, both of which became effective on April 1, 2020, and expire on December 31, 2020. Each employer’s situation is unique, and the COVID-19 landscape is constantly changing, however. Should you have questions about your company’s specific needs, Trenam Law’s Employment Law Group is available to assist.
The following questions will be addressed in this update:
- Do I have to provide leave and/or pay for employees relating to COVID-19?
- What about healthy employees who refuse to come to work?
- What measures must I take to prevent the spread of COVID-19 in my workplace?
- What am I allowed to ask my employees regarding their health during the COVID-19 pandemic?
- I may need to temporarily suspend business operations during the pandemic. Do I need to pay my employees during the suspension?
- Does the FFCRA address Unemployment Benefits?
1. Do I have to provide leave and/or pay for employees relating to COVID-19?
a. All employers
If you offer paid time off (PTO) or paid sick leave, you should generally allow employees affected by COVID-19 to utilize such leave in the same way they would if they were dealing with any other illness. The FFCRA leave described below is meant to be available to eligible employees in addition to any paid leave offered by their employers.
Of course, you may not administer your leave programs in a manner that unlawfully discriminates against employees on the basis of disability, race, color, gender, pregnancy, religion, national origin, or any other protected class or protected activity.
In addition to the federal leave laws described below, you may be subject to state or local leave laws. Florida does not impose any requirements for private employers to provide leave, paid or otherwise. Other states and locales require employers to provide sick leave under some circumstances, however.
b. Employers with 500 or more employees
If you are a private employer with 500 or more employees, the FFCRA leave and pay provisions do not apply and nothing has changed. It is likely that COVID-19 would be considered a serious health condition under the Family Medical Leave Act (FMLA). Private-sector employers are covered by traditional FMLA provisions if they have 50 or more employees for at least 20 workweeks in the current or preceding calendar year. Almost all public agencies are covered by the FMLA. Employees of covered employers are eligible under traditional FMLA provisions if they (1) have worked for the employer for at least 12 months; (2) have worked at least 1,250 hours in those 12 months; and (3) work at a workplace that has at least 50 employees within 75 miles.
If your workplace is covered by the traditional FMLA provisions only (because you have 500 or more employees), eligible employees may be entitled to FMLA leave if they become ill with COVID-19 or must care for a covered family member who has contracted the virus. If PTO or other paid leave is available to the eligible employee, you may require or the employee may request that he/she use PTO or other applicable paid leave during the FMLA absence.
For more detailed guidance from the DOL’s Wage and Hour Division (WHD) regarding the traditional FMLA provisions and the COVID-19 pandemic, please visit: COVID-19 and the FMLA Q&A.
c. Employers with fewer than 500 employees
Generally speaking, private employers with fewer than 500 employees (absent an exemption) must comply with the FFCRA paid leave obligations. The FFCRA contains two divisions addressing two types of paid leave: the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA). The EPSLA changes covered employers’ paid sick leave obligations and the EFMLEA expands FMLA coverage for employers with fewer than 500 employees, including employers that were not previously covered by the FMLA. Both divisions are in effect from April 1, 2020, through December 31, 2020.
For purposes of calculating the total number of employees, the FFCRA includes all part-time and full-time employees located within the United States and its territories, including but not limited to employees on leave, but not including employees who have been furloughed or laid off and not re-hired. Although they must be counted among an employer’s total number of employees, health care providers and emergency responders may be excluded from eligibility for paid leave under both the EPSLA and the EFMLEA, however.
Employers can require employees to give notice of their need for leave and to provide sufficient information for the employer to determine whether the employee’s request falls under the EPSLA or the EFMLEA. Employers may not require employees to give notice in advance, however. If the employee fails to give proper notice, the employer must notify the employee of that fact and give the employee an opportunity to cure the problem.
Additionally, employers may require certain documentation from the employee, but the employer may only ask for the documentation listed in Section 826.100 of the DOL’s regulations, which specifically includes documentation required by the IRS to support the employer’s application for the tax credits associated with FFCRA leave. The applicable DOL regulation can be found here and more information about IRS requirements for documentation can be found here. This documentation must be kept for at least four years, whether the leave request was granted or denied.
Employers with fewer than 50 employees may be eligible for an exemption from the obligation to provide paid leave due to school closure or child/dependent care availability, if providing such leave would jeopardize the viability of the business as a going concern. There is no small-employer exemption for any other type of leave under the FFCRA, however. Small employers may claim their exemption if an authorized officer of the business determines that:
- (i) The leave requested under either section 102(a)(1)(F) of the FMLA or section 5102(a)(5) of the EPSLA [i.e., leave requested to care for a son or daughter because of COVID-19-related closure or unavailability of schools or caregivers] would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity; [or]
- (ii) The absence of the Employee or Employees requesting leave under either section 102(a)(1)(F) of the FMLA or section 5102(a)(5) of the EPSLA would entail a substantial risk to the financial health or operational capabilities of the business because of their specialized skills, knowledge of the business, or responsibilities; or
- (iii) There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the Employee or Employees requesting leave under either section 102(a)(1)(F) of the FMLA or section 5102(a)(5) of the EPSLA, and these labor or services are needed for the small business to operate at a minimal capacity.
To elect this exemption, small employers must document how they made their determination pursuant to the above criteria and keep that documentation for at least four years. Note that the DOL’s regulations allow a small employer to determine which employees will be denied leave on a case-by-case basis. Small employers claiming this exemption should carefully document the reasons for each determination and ensure that leave is not being granted or denied in a way that unlawfully discriminates against employees on the basis of their protected class or protected activity.
All employers, including exempt small businesses, are required to post notice of employees’ FFCRA rights in a conspicuous place on their premises. For employees who work remotely, employers may satisfy this requirement by emailing the notice to employees or posting it on an employee information website. The DOL’s model disclosure can be found here.
Additionally, employers required to provide employees with paid leave will be required to maintain those employees’ health coverage while they are on leave as though the employee were still working (the employee also must continue paying his or her share.)
Unused paid leave under the FFCRA is not subject to payout upon an employee’s termination, closure of the employer’s business, or the end of the Act’s effective period.
The IRS and DOL state that a “dollar-for-dollar” reimbursement for FFCRA leave and allocable health insurance maintenance costs will be available to covered employers through a tax credit, subject to compliance with IRS requirements. IRS guidance on how to claim these tax credits can be found here. The DOL states that for employers with insufficient cash flow to make leave payments immediately when required, the employer should “make payment of sick leave or family leave wages as soon as possible, but not later than seven calendar days after the employer has withdrawn an amount equal to the required paid sick leave and expanded family and medical leave wages from the employer’s Federal payroll tax deposits or, to the extent such deposits are not sufficient, has received a refund of the credit amount from the IRS to cover the required wages.”
For more guidance on the FFCRA and its interaction with other wage-and-hour laws, the DOL has curated several sets of Q&As and facts sheets here.
1) Paid sick leave
Under the FFCRA’s EPSLA, covered employers are required to provide 80 hours of so-called “paid sick leave” to full-time employees who are unable to work or telework for enumerated reasons related to COVID-19. Part-time employees are entitled to paid sick leave equal to the number of hours they worked over an average two-week period. These provisions apply to all employees of covered employers, regardless of how long the employees have been employed, if they meet one of the following criteria:
- The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
- The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
- The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
- The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2);
- The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions;
- The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
This emergency sick leave must be compensated at the employee’s regular rate of pay or highest applicable minimum wage, whichever is greater, if the employee needs leave to care for him or herself under criteria 1, 2, or 3. Employers may cap this amount of paid benefits at $511 per day or an aggregate of $5,110 per employee. Employees who need to take leave to care for others, including children home from school under criteria 4 or 5, or for themselves under criterion 6, are entitled to two-thirds of their regular rate of pay or the highest applicable minimum wage, whichever is greater. Compensation for this leave may be capped at $200 per day or an aggregate of $2000 per employee. Paid leave is available in intermittent intervals in limited circumstances only, when the employer and employee agree and offering the intermittent intervals of work would not pose a health risk.
An employer cannot require that an employee use other accrued and unused leave before taking emergency paid sick leave, and an employer cannot amend or substitute the paid leave policy that it already had in place prior to the enactment of the FFCRA based on this provision. Additionally, EPSLA leave travels with the employee—an employee cannot take his full entitlement to EPSLA leave at one employer, then move to another employer and become entitled to more EPSLA leave.
2) FMLA expansion
The EFMLEA section of the FFCRA allows an employee who has (a) worked for an employer for at least 30 calendar days (or for employees laid off or terminated after March 1, 2020, and rehired before December 31, 2020, for at least thirty of the preceding sixty calendar days); and (b) is “unable to work (or telework) due to a need to care for the son or daughter under 18 years of age of such employee” whose child’s school or place of care is closed, or whose child care provider is unavailable, due to an emergency with respect to COVID-19 declared by a Federal, State or local authority, to take up to twelve weeks’ leave. DOL regulations interpret the EFMLEA’s definition of “son or daughter” to include adult sons or daughters who are incapable of self-care because of a mental or physical disability. The first ten days of such leave may be unpaid, with the remainder to be paid in an amount not less than two-thirds of the employee’s regular rate of pay, subject to a cap of $200 per day, or an aggregate amount of $10,000. Generally, employees can choose to apply other paid leave to the first ten days of leave, but an employer cannot mandate that employees do so. Employees seeking to take such leave are required to provide the employer “with such notice of leave as is practicable.” Notably, the FMLA expansion portion of the FFCRA does not change the total amount of leave to which an employee is entitled under the FMLA. In other words, if an employee exhausted some or all of his or her twelve total weeks of FMLA leave before the effective date of the FFCRA, that employee is not entitled to additional weeks of FMLA leave under the FFCRA. An eligible employee whose FMLA is completely exhausted is still entitled to two weeks of paid sick leave under the emergency sick leave portion of the FFCRA, however.
The FMLA traditionally requires that an employee returning from FMLA leave be restored to the same or equivalent position absent certain circumstances. This general requirement applies to leave taken pursuant to both the EPSLA and the EFMLEA divisions of the FFCRA. Employees on paid leave under either division of the FFCRA are not protected from employment actions that would have occurred regardless of whether the employees had taken leave, such as layoffs, worksite closures, or suspension of all business operations, however. Additionally, for the purposes of leave under the EFMLEA, certain highly compensated “key” employees need not be restored to their previous positions if certain requirements are met, and some employers with fewer than 25 employees will not be required to restore an employee if: (a) the employee’s position no longer exists for economic reasons or other changes in operating conditions caused by the COVID-19 public health emergency during the employee’s leave; (b) the employer makes reasonable efforts to restore the employee to an equivalent position; and (c) if those efforts fail, the employer makes efforts to contact and reinstate the employee if an equivalent position becomes available within one year (note that this provision could result in employers having obligations to act on FFCRA requirements after the FFCRA’s December 31, 2020 expiration date).
2. What about healthy employees who refuse to come to work?
If no government order prohibits a particular company from operating during the pandemic, a healthy employee of such company who chooses to stay home simply to prevent the spread of COVID-19 or avoid contracting COVID-19 is probably not eligible for FMLA leave (except as provided under the FFCRA). Moreover, employees normally are not permitted to refuse to report to work unless they have a reasonable fear they will be in imminent danger. For example, a health worker might be in “imminent danger” if forced to work with COVID-19 patients without personal protective equipment. For employers in some industries, the risk of COVID-19 may not qualify as imminent danger. Those employers are permitted to require their healthy employees to report to work, as long as the employee does not have a child or sick family member to care for (e.g., under FFCRA or traditional FMLA provisions) and no government order entitles them to refuse to report to work. Because this analysis is heavily fact specific and may change during the course of the pandemic, employers should seek legal advice about their specific requirements.
If a healthy employee is able to perform job duties remotely, however, then you should consider allowing him/her to work from home. Social distancing is a critical containment measure, and allowing remote work is a good way to encourage social distancing. (Of course, if you have sick employees who are able and willing to work remotely and whose job duties permit it, you should consider allowing them to work from home as well.)
3. What measures must I take to prevent the spread of COVID-19 in my workplace?
Good hand hygiene, respiratory etiquette, and social distancing are critical to containing the spread of COVID-19 and keeping your employees safe. Most employers are in what the Occupational Safety and Health Administration (OSHA) considers low-risk industries (for the purposes of COVID-19 exposure). For these employers, the risk of employees contracting COVID-19 is no higher than the general public’s risk. These employers, and all employers regardless of their industry, should:
- Encourage sick employees to stay home.
- Immediately separate and send home employees showing COVID-19 symptoms.
- Encourage telecommuting when it is available.
- Increase the frequency of routine environmental cleaning, especially of frequently touched areas (doorknobs, light switches, elevator buttons, security keypads, etc.). For more information regarding how to clean and disinfect facilities after a known or suspected COVID-19 positive individual has been present, please see the CDC’s Guidelines for Cleaning and Disinfecting Community Facilities.
- Instruct employees to wash their hands with soap and water frequently, scrubbing for at least 20 seconds. Ensure that adequate supplies are available to employees.
- If soap and water are not available, instruct employees to frequently use hand sanitizer that is at least 60% alcohol. Ensure that sanitizer is available to employees.
- Instruct employees to cough or sneeze into a tissue, discard the tissue and immediately wash or sanitize their hands or, if no tissue is available, cough or sneeze into their upper sleeve or elbow.
Industries in which employees work in high-population-density environments (e.g., high-volume retail) or have frequent and/or close contact with individuals whose COVID-19 status is unknown are considered medium-risk industries. Employers in these industries (to the extent they are allowed to remain open during the pandemic) should consider whether and how to minimize face-to-face contact between employees and customers. They should also consider offering face masks to customers and employees who are or may be sick. Although paper face masks do not prevent a healthy person from becoming sick, they may help prevent a sick person from transmitting illness, which may help contain the illness until the sick person can leave the workplace.
OSHA warns that employers in the following industries have a high or very high risk of exposure as compared to the general public:
- Waste management
- Airline operations
- Border protection
- Work that requires travel to areas affected by the virus
Employers in these (and other) industries may be subject to industry-specific OSHA standards. They should carefully conduct hazard assessments of their workplaces to determine whether and how their employees will be exposed to COVID-19 and determine what measures can be taken to mitigate the risk of exposure.
All U.S. employers should monitor the Centers for Disease Control’s (CDC) website for the most up-to-date information on the spread and severity of the virus and best practices for containing its spread. For more detailed information about COVID-19 and generally applicable recommendations for containing its spread, please visit the CDC’s Interim Guidance for Businesses and Employers. For more information on the status of the pandemic, please visit the CDC’s Main COVID-19 Page. More local information for Florida employers may be found at Florida Health Department’s dedicated COVID-19 page: Florida Health COVID-19 Resources.
For more detailed information on OSHA’s risk classifications and how to meet applicable OSHA standards, please visit: OSHA’s COVID-19 Homepage and OSHA’s Guidance on Preparing Workplaces for COVID-19.
4. What am I allowed to ask my employees regarding their health during the COVID-19 pandemic?
Ordinarily, an employer cannot ask an employee specific questions about the employee’s medical issues except in very narrow circumstances. Such questions run the risk of being labeled impermissible medical examinations. Under pandemic conditions, however, an employer has more leeway because sick employees are more likely to pose a “direct threat,” as that term is used within the Americans with Disabilities Act (ADA), to the health and safety of other workers. According to the EEOC (Equal Employment Opportunity Commission), which is the agency that oversees ADA claims, the COVID-19 pandemic meets the direct threat standard. The EEOC directs employers to follow CDC guidelines on how to slow the spread of COVID-19 and emphasizes that the ADA “does not interfere with employers following recommendations of the CDC or public health authorities.”
Under pandemic conditions, employers may ask employees who call in sick, look sick, or who report feeling unwell at work whether they are experiencing COVID-19 symptoms (fever, chills, cough, sore throat and shortness of breath). Sick employees should be sent home.
Additionally, employers should request that employees notify them if the employee or a family or other household member tests positive for COVID-19. This information should be used to inform individuals who worked closely with the sick employee that they may have been exposed to the virus. You must not disclose any confidential medical information or any information that identifies the employee or his/her family or other household member, except where specifically required by law.
Finally, employers may ask employees returning from travel where they traveled. If the CDC recommends that individuals traveling to particular locations self-quarantine when returning home, employers may ask if their employees visited such places. Employers may require employees returning from such locations to provide fitness-for-duty certifications or other doctor’s notes before returning to work, even if the travel was for personal reasons. As of March 27, 2020, the CDC recommended self-quarantine for travelers returning from any international travel or any cruise ship.
For more detailed information about the Equal Employment Opportunity Commission’s guidance on employer obligations during the COVID-19 pandemic, please visit the EEOC’s COVID-19 and ADA Q&A and the EEOC’s Guidance on Pandemic Preparedness.
5. I may need to temporarily suspend business operations during the pandemic. Do I need to pay my employees during the suspension?
Some employers may need to suspend operations during the pandemic for economic reasons or because of government orders. For example, Pinellas and Hillsborough County have both issued “Safer at Home” orders that direct non-essential businesses to close unless they can implement the CDC’s guidelines to keep employees and customers at least six feet apart. In Pinellas County, businesses providing essential services are not required to comply with CDC guidelines (although they should, if feasible). In Hillsborough County, businesses providing essential services and businesses that can implement the six-foot distancing between and among employees and customers are directed to comply with the social distancing and best practices guidelines established by the CDC and Florida Department of Health.
Counties and cities across the state of Florida have imposed varying degrees of restrictions on businesses and the movements of individuals. Additionally, the Governor of Florida has issued executive orders restricting or prohibiting the operation of some specific types of business (e.g., certain gyms and fitness studios must close completely; healthcare providers must limit medically unnecessary, non-urgent, or non-emergency medical procedures; most restaurants must suspend on-premises food consumption).
On April 1, 2020, Florida’s governor issued a statewide “Safer-at-Home” order effective at 12:01 a.m on April 3, 2020 and mandating that individuals in certain high-risk categories “shall stay at home and take all measures to limit the risk of exposure to COVID-19.” The statewide order also directs all persons in Florida to “limit their movements and personal interactions outside of their home to only those necessary to obtain or provide essential services or conduct essential activities.” Under this order, employees of “essential service” providers may continue going to work; however, employees of non-essential service providers are directed to stay home unless they are obtaining their own essential services or performing essential activities. “Essential activities” does not include working.
New DOL regulations clarify that “quarantine or isolation orders” within the meaning of the FFCRA can include orders that advise “some or all citizens to shelter in place, stay at home, quarantine, or otherwise restrict their own mobility.” The statewide (and local) “Safer-at-Home” order(s) described above likely fit that definition. Therefore, under the statewide order, employees of non-essential service providers or in high-risk categories who are unable to work from home could qualify for paid sick leave under the FFCRA, if their employers continue their operations.
Employees whose employers suspend operations or issue furloughs or layoffs as a result of the pandemic are not entitled to paid leave while the businesses’ operations are shut down—in other words, if the employer has no work for the employee to do, the employee does not qualify for FFCRA leave. This is true regardless of whether the suspension of operations or furloughs occurred before or after the April 1, 2020, effective date of the FFCRA. For employees whose employers suspend operations or issue furloughs or layoffs while the employee is on paid FFCRA leave, such employees are entitled to leave up through the date of the businesses’ closure. Once operations are suspended, employees are not entitled to further paid leave under FFCRA. They may be eligible for unemployment benefits, however. Additionally, employees whose hours have been reduced by their employers as a result of the pandemic are likely not eligible for FFCRA leave to make up for the hours reduction. Such employees may be eligible for partial unemployment benefits, however.
For more detailed guidance from the WHD regarding the Fair Labor Standards Act and COVID-19, please visit: COVID-19 and the FLSA Q&A. The Hillsborough County Safer at Home Order can be found here. The Pinellas County Safer at Home Order can be found here. The statewide Safer at Home Order can be found here. Each order includes detailed lists of the types of “essential services” that are not restricted by the order.
As mentioned above, cities and counties across Florida have issued their own orders with varying degrees of restriction. The statewide order may not supersede certain tighter restrictions appearing in state or local orders, so employers should be aware of the orders their counties and cities have issued. Florida Politics (not a government-run website) has compiled a round-up of restrictions issued by various cities and counties across the state, which can be found here.
For essential service providers whose employees are not eligible for paid leave under the FFCRA, non-exempt workers generally need not be paid for hours they do not work. Salaried, exempt workers generally need not be paid for weeks in which they perform no work. (If you close your offices mid-week, it may be more complicated. If your exempt employees work a partial week, and are ready, willing, and able to work the rest of the week, you would generally be required to pay them the full week’s salary for that week.)
Employees with accrued PTO may wish to use such PTO during the suspension. Employers’ obligations regarding PTO vary according to employer policy and federal (FFCRA), state and local laws, rules, and regulations (e.g., city and county wage theft ordinances). To minimize their risk of a claim, employers should follow the terms of their PTO policies. If feasible, employers should consider allowing PTO use during the suspension, even if their policy does not require it, particularly if no other plan or policy exists that would provide or replace employees’ compensation during the suspension.
6. Does the FFCRA address Unemployment Benefits?
The FFCRA provides for $1 billion of an emergency administrative grant to be distributed proportionally to states. Half of that amount will be distributed to states no more than 60 days after the enactment of the bill, so long as the state receiving the funds has complied with the requirements set out in the bill. These requirements include that the states require employers to provide notification of the availability of unemployment compensation to employees at the time of separation from employment; the states ensure that applications for unemployment compensation and assistance with the application process are accessible in-person, by phone, or online; and the states notify applicants when an application is received and is being processed, and in any case in which an application is unable to be processed, provides information about steps the applicant can take to ensure the successful processing of the application.
Employers should consider whether they have obligations to their employees in addition to those discussed above. For example, employers may have obligations to provide notice of plant closings and mass layoffs in accordance with the Worker Adjustment and Retraining Notification Act (WARN), or state or local “mini-WARN” acts. Moreover, health insurance considerations will be critical to employees facing layoffs during the pandemic, and employers may have notice and other obligations under the federal Consolidated Omnibus Budget Reconciliation Act (COBRA) and Florida mini-COBRA. Employers will also have to navigate complex compensation issues as hours, schedules and staffing levels have to be adjusted for changing economic conditions.
We understand the challenges and difficult decisions that many businesses are facing during the COVID-19 pandemic. Trenam Law’s Employment Law Group remains available to assist with employers’ questions regarding these issues.
 For the purposes of this exemption, the definitions of “health care provider and “emergency responders” are extremely broad. The term “healthcare provider” includes employees of entities directly providing medicine or health care (e.g., hospitals, medical schools, laboratories, pharmacies); the employees of many contractors of such entities (e.g., contractors who help maintain the operation of healthcare facilities); employees of entities in support industries (e.g., manufacturers of COVID19-related medical equipment or vaccines); and any other individual deemed a “health care provider” by the highest official of that individual’s state or territory. An “emergency responder” is “anyone necessary for the provision of transport, care, healthcare, comfort and nutrition of such patients, or others needed for the response to COVID-19,” including but not limited to doctors, nurses, military and law enforcement personnel, EMTs, child welfare workers, operators of certain equipment, and any other individual deemed an “emergency responder” by the highest official of that individual’s state or territory. The complete list may be found at 29 C.F.R. § 826.30, available here.
 “Telework” is work the employer permits or allows an employee to perform while away from the employee’s normal worksite, including the employee’s home. An employee is able to telework if “(a) his or her Employer has work for the Employee; (b) the Employer permits the Employee to work from the Employee’s location; and (c) there are no extenuating circumstances (such as serious COVID-19 symptoms) that prevent the Employee from performing that work.”