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CORONAVIRUS AND THE WORKPLACE: FAST FACTS FOR EMPLOYERS

Written by: Jacqueline Voronov, Esq.  and Jeffrey M. Daitz, Esq.

The coronavirus (COVID-19) outbreak that originated in Wuhan, China has spread to at least 95 countries and has sickened more than 100,000 people, leading to increased anxiety and confusion across the globe.  Amidst fears of potential business disruption, the spread of this novel virus serves as a wake-up call for companies to carefully review the policies and procedures they have in place to protect employees, customers, and operations.  The following Frequently Asked Questions (FAQs) are designed to address some of the vexing legal issues that employers are currently grappling with.

For additional information, we encourage you to visit the website of the Centers for Disease Control and Prevention, and also check out the EEOC’s Guidance on Pandemic Preparedness in the Workplace, discussing permissible medical inquiries and accommodations, accessible here.

    1. For employers that have conferences scheduled, should they cancel them?

Several countries, including France and Italy, have banned large gatherings.  At this time, no such bans have been implemented in the United States.  Employers should continue to monitor the news and local health official sources about any restrictions in states with COVID-19 cases.

    1. What are an employer’s obligations to protect employees from physical harm at work?

The Occupational Safety and Health Act (OSH Act), which requires employees to protect the safety of employees, is implicated by coronavirus infections.  Section 5(a)(1) of the Act is the general duty clause, which requires employers to provide their employees with a workplace “free from recognized hazards … likely to cause death or serious physical harm.” The Occupational Health and Safety Administration can cite employers for violating the general duty clause if there is a recognized hazard and they do not take reasonable steps to prevent or abate the hazard.

Given that OSHA does not have a specific regulation which deals with the virus, the Agency will utilize the general duty clause. If the Agency can establish that employees at a worksite are reasonably likely to be “exposed” to the virus  (e.g., serving as healthcare providers, emergency responders, transportation workers, etc.), OSHA will require the employer to develop a plan with procedures to protects its employees.

OSHA will expect the responsible employer to develop a program based upon a “hazard assessment” of potential exposure at the worksite (hygiene and decontamination), including:

  • conduct employee awareness training regarding the hazard;
  • develop procedures requiring the issuance and use of personal protective equipment (PPE) (e.g., masks, gloves) if necessary to prevent infection and transmission;
  • develop a means of reporting infection and providing medical surveillance for employees who contract the disease;
  • maintain appropriate documentation of the foregoing actions.

 

    1. Does the Americans with Disabilities Act (ADA) restrict how employers should interact with employees due to the coronavirus?

Sure does. Asking employees about or taking action with regard to possible health conditions raises issues under the ADA.  The ADA, which protects applicants and employees from disability discrimination, is relevant to pandemic preparation in at least three (3) major ways.   First, the ADA regulates employers’ disability-related inquiries and medical examinations for all applicants and employees, including those who do not have ADA disabilities. Second, the ADA prohibits covered employers from excluding individuals with disabilities from the workplace for health or safety reasons unless they pose a “direct threat” (i.e. a significant risk of substantial harm even with reasonable accommodation). Third, the ADA requires reasonable accommodations for individuals with disabilities (absent undue hardship) during a pandemic.

    1. Can an employer restrict travel to all locations under a CDC travel advisory?

Yes, an employer may restrict business travel.  Employers should continue to consult the CDC’s website:  “Coronavirus Disease 2019 Information for Travel” for up-to-date travel notices concerning risk. The CDC advises that employers restrict all nonessential travel to areas with a Warning Level 3, and to exercise caution regarding travel to Warning Level 2 areas.

According to this guidance, travel to China, South Korea, Iran and Italy should be limited.  Employers whose business involves travel to China, South Korea, Italy or Iran (or other areas that become subject to travel advisory issued by the CDC) should consider other available options for employees, such as videoconferencing or delaying travel.  Further, employers should exercise appropriate steps to protect the workplace from exposure from employees who have traveled to these areas or who have been in recent contact with individuals who have traveled to these areas.

    1. Can an employer ask about an employee’s personal travel?

Although an employer cannot restrict an employee’s personal travel, employers can mandate that employees report on their recent travels to assess exposure risks.  Employers may ask employees about the countries they have recently traveled to and if they may have had any exposure to COVID-19.  Employers can also ask if employees have had close contact with others who have traveled to at-risk countries and/or otherwise have been exposed to the virus.

    1. May an ADA-covered employer send employees home if they display influenza-like symptoms during a pandemic?

It is important to note that, currently, COVID-19 is not considered a pandemic.  However, the CDC states that employees who become ill with symptoms of influenza-like illness at work during a pandemic should leave the workplace.  Advising such workers to go home is not a disability-related action if the illness is akin to seasonal influenza or the 2009 spring/summer H1N1 virus. Additionally, the action would be permitted under the ADA if the illness were serious enough to pose a direct threat.

Under the ADA, a “direct threat” is defined as “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”  When an employer is determining whether an individual is a direct threat to the workforce, the employer must make a context-specific inquiry and look to “(1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.”

    1. Can employers prevent employees from coming to work?

Employers are understandably concerned about providing a safe environment for their employees.  If an employer concludes that an employee may pose a health threat to other employees, the employer can request that the employee stay home for the COVID-19’s incubation period (currently identified as a 14 day period).  To contain the spread of the coronavirus, employers should actively encourage sick employees to stay home and remind sick employees of any rights that they may have to paid time off when they are sick or caring for an ill family member.

The EEOC has endorsed telecommuting (or teleworking) as an effective infection control strategy and employers are encouraged to consider offering employees the option of working remotely, to the extent feasible.

    1. During a pandemic, how much information may an ADA-covered employer request from employees who report feeling ill at work or who call in sick?

ADA-covered employers may ask such employees if they are experiencing influenza-like symptoms, such as fever or chills and a cough or sore throat.  If pandemic influenza is like seasonal influenza or spring/summer 2009 H1N1, these inquiries are not disability-related. If pandemic influenza becomes severe, the inquiries, even if disability-related, are justified by a reasonable belief based on objective evidence that the severe form of pandemic influenza poses a direct threat.

    1. What are an employer obligations for offering an employee a leave of absence related to the coronavirus?

There are several sick leave laws that are implicated if an employee requests leave.

Family and Medical Leave Act

For an employee to invoke their 12 weeks of unpaid FMLA leave, he or she must have a “serious health condition” and otherwise satisfy the FMLA eligibility criteria.  Although the symptoms of COVID-19 have been reported as flu-like, COVID-19 may be considered a serious health condition depending on the circumstances.  Accordingly, an employee with COVID-19 or an employee who is taking care of a qualifying family member with COVID-19 may be permitted to take protected FMLA leave.  However, employees who refuse to come to work simply out of fear of contracting COVID-19 would not typically qualify for FMLA leave.

Americans with Disabilities Act

The ADA provides certain protections to employees who may have physical, mental or emotional “disabilities” but who are otherwise qualified to perform the essential functions of their jobs.  Typically, a disability is an impairment which substantially limits one or more of the major life activities of an individual (e.g., breathing, working, speaking) which is chronic in nature.  While COVID-19 is typically a temporary, nonchronic illness and not a “disability” under the ADA, it is important to note that the ADA also prohibits discrimination against perceived disabilities or association with those with actual or perceived disabilities.  In order to avoid implicating the ADA, it is best no refrain from making armchair diagnoses and continue to apply leave policies and other workplace polices in a uniform, equitable, and neutral fashion.

The ADA may also be implicated if an employee develops a disability as a result of the disease and cannot return to their former work duties because of such impairment (i.e., asthma).  The employer must then be prepared to engage in an “interactive process” with the employee which involves a case-by-case dialogue regarding the employee’s ability to return to work, any work restrictions, what accommodations may be available which do not cause undue hardship to the employer or whether the employee’s disability presents a direct threat to the health or safety of the employee or other employees.

State Paid Sick Leave Laws

Practically speaking, in states such as New Jersey and New York where paid sick leave is mandated, these state laws will be most applicable to your workforce. An employee can use their accrued paid sick leave to care for themselves or a sick family member and also use that time for preventative care.

    1. Do employees need clearance to return to work? Can you request documentation?

Currently, there is no formal clearance process for employees to return to work from the coronavirus. However, employers may request documentation under certain circumstances. For example, under some state and local leave laws, if an employee has been absent for more than three consecutive workdays, you may request a doctor’s note from a licensed healthcare provider. Additionally, if an employee has traveled to one of the CDC-designated countries, you may request documentation of the employee’s travel to confirm the dates of the employee’s self-monitoring at home.

U.S.-based employers should not administer any medical tests for workers, unless they are otherwise a job-related necessity, as insistence upon such tests may violate the ADA.

    1. May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?

No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).

Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.

    1. Can an employer tell other employees about an employee who has or may have the coronavirus?

No. Employees have a reasonable expectation of privacy regarding their medical information. Therefore, employers should not identify or explain to other employees the reason an employee is not at work.  Communications with employees about medical conditions should be kept confidential and medically-related documents kept in a location separate from the employee’s personnel file.  Co-workers can simply be told that an unidentified employee with whom they have had recent contact has been exposed to the coronavirus or has tested positive.

However, employers can and should inform other employees of their possible exposure to the coronavirus because employees have a right to know if there is a health risk in their workplace. Those employees then can and should conduct a risk assessment of their potential exposure based on guidance from the CDC.

Upon learning of an employee who has been diagnosed with the coronavirus, immediately contact your local health department and establish a plan before communicating this development to your employees.

    1. Will an employer be required to continue paying the employee or can the employee be required to take sick leave or be put on disability?

This depends on the employee’s classification as exempt or non-exempt.  Subject to limited state law exceptions, employers generally are not required to pay non-exempt employees for hours not worked. Thus, non-exempt employees directed by their employer not to report to work and not to work from home generally need not be paid. Those employees may be permitted or entitled to use accrued paid time off, including paid sick leave in jurisdictions with paid sick leave requirements.

The issue becomes more complicated when an exempt employee is instructed to stay home and is not able to work because of the nature of the job. Exempt employees who performed any work during the workweek in which the office is closed for a few days get paid their full wages for the week.  If the exempt employee has accrued paid time off, you may require the exempt employee to use PTO for those days. However, if the exempt employee has no accrued PTO, you cannot dock pay. Deducting an exempt employee’s wages may convert that employee’s status to non-exempt, and expose you to liability for overtime. But, if an exempt employee does not work for an entire workweek during a temporary closure, the employer can elect not to pay them for that workweek.

You can access the Department of Labor’s guidance on paying exempt/non-exempt employees here.

    1. Can we prohibit employees from wearing medical masks at work?

Under most circumstances, employers can prohibit employees, particularly customer-facing positions, from wearing medical masks or respirators.  However, current consensus is that masks are not necessary to protect the health of most employees and are needed only if a person is treating someone infected with the coronavirus. Therefore, unless an employee has a disability requiring the use of a mask or works directly with individuals affected by the coronavirus, an employer likely can prohibit employees from wearing masks at work.

    1. What should employers do in response to the coronavirus?

Most importantly, employers and workers alike should not panic as a result of the coronavirus.  The CDC advises that “most people in the United States will have little immediate risk of exposure.”  Currently, coronavirus has a fatality rate of less than 3 percent.  As such, the majority of those affected so far have survived the disease.  It is, however, prudent for employers to evaluate their organizations’ current policies and practices in the event a major outbreak occurs.  With hype spreading faster than the virus itself, employers are encouraged to adhere to the CDC’s guidance and develop a coronavirus response strategy that is rooted in the law and, most importantly, based in common sense.  You can find the CDC’s recommendations and suggested best practices on protecting the workplace here.

All employers should review their leave policies to ensure sick leave, paid time off and other policies are flexible and consistent with federal, state and local laws.  Additionally, it is a good time to send out updates and reminders to employees about the importance of remaining home when sick and informing employees about Human Resources Department policies, including leave flexibilities, points of contact and benefits.

Lastly, employers should continue to be informed and monitor the situation by visiting the CDC and WHO websites regularly, as the coronavirus is a rapidly evolving situation and updated information is continually being posted.  Given the complex legal landscape and the myriad of issues involved, employers should consult with legal counsel about the facts and circumstances of specific situations prior to taking any action in response to the coronavirus.