Practical Guidance for Employers Grappling With the Coronavirus Threat
March 2, 2020
By David P. Williams, Jennifer R. Yee, Joshua R. Woodard, Charles P. Keller, Amelia A. Esber and Kevin M. Brown
This week, the World Health Organization upgraded the global risk of the new coronavirus (COVID-19) to “very high” with over 83,000 cases being confirmed, including dozens in the United States. Employers are grappling with how to address the practical and legal concerns that have been created by this outbreak. This Legal Alert provides the latest guidance on COVID-19 prevention, employee testing, reporting suspected cases, employee compensation issues while on leave, and principles of workplace safety and health.
The best way to prevent infection is to avoid exposure. The U.S. Centers for Disease Control and Prevention’s (CDC) latest guidance for employers recommends numerous actions to help prevent the circulation of respiratory viruses in the workplace, including:
- Perform increased environmental cleaning of frequently touched surfaces in the workplace, such as workstations, countertops and doorknobs.
- Require employees showing symptoms of acute respiratory illness (i.e. cough, shortness of breath) to stay home at least until the 14-day incubation period of COVID-19 has passed.
- Require employees who have stayed home with symptoms to provide a doctor’s note clearing them to return to work.
- Instruct employees on cough and sneeze etiquette and increased hygiene measures.
- Provide tissues, handwipes, hand sanitizer that contains at least 60-95% alcohol, gloves, and no-touch disposal receptacles for use by employees.
- Issue a company-wide statement providing employees with instructions and resources available from the CDC and a copy of the COVID-19 Coronavirus notice from the CDC.
Employers may want to restrict employees from traveling to China or other high-risk locations unless absolutely necessary. If employees must travel, they should be advised to follow infection control precautions with careful hygiene, avoid contact with sick people, avoid contact with animals and uncooked animal products, and wear personal protective equipment.
Employers may want to require employees returning from high-risk locations to stay home at least until the 14-day incubation period has passed. If the CDC or other local public health officials recommend that people who visit specified locations remain at home until it is clear they do not have symptoms, an employer may require an employee who traveled to an affected area to remain on leave for the suggested period of time.
Employers should continue to monitor the CDC website for further developments. In the absence of a CDC directive that employees who have traveled to affected areas stay at home, an employer who is considering requiring such employees to remain home should consult with counsel.
Employee Testing – Is It Permissible?
The Americans with Disabilities Act (ADA) regulates disability-related inquiries and medical examinations of employees. The ADA prohibits covered employers from making disability-related inquiries or conducting medical examinations during employment unless they are job-related and consistent with business necessity. Generally, a disability-related inquiry or medical examination of an employee is job-related and consistent with business necessity when an employer has a reasonable belief, based on objective evidence, that: 1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or 2) an employee will pose a direct threat due to a medical condition. This reasonable belief must be based on objective evidence obtained, or reasonably available to the employer, prior to making a disability-related inquiry or requiring a medical examination.
Short of additional directives from local health departments or the CDC, subjecting employees to mandatory medical examinations (temperature taking, symptom screening, etc.) without additional justification is likely violative of the ADA. However, employers should consult with counsel when determining whether conducting an employee medical examination may be warranted by the particular circumstance or based on local exigencies.
Employee Leave Laws
An employee who is experiencing a serious health condition or who requires time to care for a family member with such a condition may be entitled to take unpaid leave under the federal Family and Medical Leave Act (FMLA) or other applicable state and local laws.
Employees may also be eligible for leave as a reasonable accommodation under the ADA or related state or local law, if the underlying condition constitutes a qualifying disability. However, employees generally are not entitled to take FMLA or reasonable accommodation leave under the ADA to stay at home to avoid getting sick.
Furthermore, employees in many jurisdictions, including but not limited to Arizona and California, would be entitled to paid sick leave if needed to care for themselves or a sick family member in the event of an illness, or if their workplace or a child’s school or day care is closed due to a public health emergency.
Employees’ Compensation During Leave
Under many state and local laws, employees are entitled to use accrued paid sick time for time away from work due to their own illness and/or the illness of family members, and/or, in the event of a public health emergency, where the employer, schools, or places of care are closed by order of a public official – whether or not the employee or family member has actually contracted the communicable disease. In addition, employers’ own paid sick time policies may provide for paid time off in similar circumstances.
However, for time away from work that is mandated by the employer but when an employee is not sick (for example, an employee returning from a high-risk location who is required by his/her employer to stay home at least until the 14-day incubation period has passed), or where there has been no public health emergency declared by a public official, employers should proceed carefully. Of course, employers can pay the employee for such mandated time off but should be cautious about requiring the use of paid sick time where an employee or family member is not actually sick or where there is no public health emergency as that may run afoul of local and state paid sick leave laws.
Employers may want to require employees to use paid vacation time during such time off, provided the applicable vacation policy permits the employer to do so. However, from an employee morale perspective, some employees may not appreciate being required to use their vacation time for a mandated leave by their employer.
If the employee is classified as non-exempt, time off imposed by an employer usually may be treated as unpaid, subject to any contractual obligations otherwise that the employer may have.
If the employee is classified as exempt, however, employers will need to be cautious about requiring any unpaid time off. If the exempt employee works at all during the workweek (for example, checks emails or answers calls – even from home – or works one of five days), that employee is generally entitled to his/her salary for the week even though the employer may have sent them away from work for the incubation period noted above. Only in limited circumstances can an employer dock the pay of an exempt employee. Employers will also want to evaluate whether there are any contractual restrictions to docking an exempt employee’s salary before doing so.
Prior to making any final decisions regarding paid sick time, vacation, wage discontinuation, or docking the pay of exempt employees in these leave circumstances, employers should consult with counsel.
Workplace Safety and Health
There are no specific occupational safety and health standards covering the coronavirus. The Occupational Safety and Health Administration (OSHA) can investigate and possibly cite an employer through the general duty clause, which imposes on employers the general obligation to furnish a place of employment that is free from recognized hazards that are causing or likely to cause the death or serious physical harm to the employer’s own employees. Such an investigation is likely to arise as a result of an employee complaint.
To meet the general duty clause obligation and address the issue of the coronavirus, there are certain steps that employers can undertake, like implementing the CDC’s recommendations. Employers can be proactive and implement workplace policies to mitigate the impact of the coronavirus in the event that it becomes more widespread throughout the United States.
Initially, employers should conduct an assessment of their workplace and work environments to determine the potential impact the virus may have on their business operations. Certain industries, especially those involving international operations, are more likely to be confronted with the threat of the coronavirus. Additionally, employers should understand that employees will be very concerned about even working around or near employees returning from countries on the CDC threat list. Such employees are protected from adverse action or retaliation when voicing such concerns.
To ensure you are complying with the dictates of the general duty clause, employers should take the necessary actions commensurate with the possible threat. Employers can adopt portions of the CDC’s guidelines, such as ensuring employees have ready access to soap and water, as well as adequate supplies of alcohol-based hand sanitizers to use, and adopting policies regarding international travel and developing protocols for employees returning to work from international travel. Pursuant to the CDC website, the use of face masks is not recommended as a preventative measure for individuals that are not infected with the virus. However, if employees nonetheless wish to protect themselves with the use of a face mask, there are a couple points to keep in mind.
First, the use of such a face mask should be voluntary. Second, employees should be aware that such use is voluntary and be instructed on how to properly use the face mask. Finally, employers should know the type of mask that is being made available to their employees as there are certain types of “dust masks” that OSHA considers to be a respirator. These masks trigger other obligations, including drafting and implementing a respirator protection program.
Remember that employers have an obligation to track and report certain types of work-related injuries and illnesses on their OSHA Form 300 log. Based on an OSHA record keeping regulation, there is an exemption for recording instances of the typical cold and flu. However, OSHA has deemed an employee infected with the coronavirus as a recordable illness when a worker is infected on the job.
Finally, while the coronavirus is continuing to spread, to meet the statutory obligations under the general duty clause, employers also should continue to review the possible threat to their employees by periodically reviewing the CDC and OSHA websites for the latest information, updates, and suggested courses of action.
©2021 Snell & Wilmer L.L.P. All rights reserved. The purpose of this publication is to provide readers with information on current topics of general interest and nothing herein shall be construed to create, offer, or memorialize the existence of an attorney-client relationship. The content should not be considered legal advice or opinion, because it may not apply to the specific facts of a particular matter. As guidance in areas is constantly changing and evolving, you should consider checking for updated guidance, or consult with legal counsel, before making any decisions.