As coronavirus (COVID-19) cases continues to climb, employers are increasingly faced with a related concern—how the virus may impact the workforce, and how employers should respond right now. The evolving nature of this situation means that guidance and best practices can change rapidly. Consequently, the guidance below will be updated as frequently as necessary, and we recommend readers continue to visit this page to receive updated information.
COVID-19 symptoms include fever, coughing, and shortness of breath. What should an employer do if an employee has some of these symptoms?
The CDC states that employees who have flu-like symptoms at work should be asked to leave the workplace. The EEOC states that instructing employees to go home because of flu-like symptoms is not disability-related, even though the employee does not have a diagnosis. So employers may (and should according to the CDC) ask employees with symptoms of the COVID-19 or the flu to go home. Employees should stay home for at least 24 hours after they no longer have a fever (a temperature of 100 degrees or greater) or signs of a fever (chills, feeling very warm, flushed appearance, or sweating).
Additionally, under OSHA’s general duty clause employers are required to furnish a place of employment that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm” to their employers. When an employer has objective evidence that an employee has been exposed to the COVID-19, the employee should be required to leave work.
When an employee is voluntarily quarantined, is asked not to return to work, or has other work restrictions that limit the employee’s performance of the job due to the COVID-19 the employee’s pay could be impacted based on a number of factors, including the employee’s status. In general, if employees are nonexempt, an employer must pay them for time actually worked. If an employee is exempt, but does work during a workweek while, for example, in quarantine, the employee must be paid his usual salary. If, however, the exempt employee does no work during a workweek, the employee would not have to be paid under the Fair Labor Standards Act. Employers should consult with counsel to identify individual circumstances that may require certain action.
The Families First Coronavirus Response Act (FFCRA) being considered on Congress probably will impose new Employee-pay obligations on employers.
No law requires permitting telecommuting, but allowing employees to work from home is consistent with an employer’s duty to provide a safe working environment. Granting requests to work from home also would facilitate 14-day self-quarantine requirements for individual employees, as well as broader quarantine orders that ban or restrict travel, should such be announced.
Employers may require employees returning from travel, international or domestic, to stay home for a period of time. The CDC is asking all travelers to a Level 3 Travel Health Notice country to stay home for a period of 14 days. Employers may require, among other things, a healthcare professional’s release allowing an employee to return to work before granting such permission. Employers may also impose similar restrictions if an employee cohabits with a traveler.
The COVID-19 will prompt employers to have legitimate questions about the health of employees but it does not suspend the Americans with Disabilities Act, and asking an employee about a serious health condition could violate the ADA. However, the EEOC states that employers may ask employees if they are experiencing flu-like symptoms, such a fever, chills, a cough, or sore throat, because that type of question does not seek or elicit information about a disability. Responses must be maintained as confidential medical records in compliance with the ADA. An employer may not ask questions that are disability-related, for example, whether an employee has a compromised immune system and is more susceptible to the adverse effects of the COVID-19.
An employer may ask an employee medical questions if the employer has reason to believe, based on objective, factual information, the employee is not able to perform the job successfully or safely.
Employees who are members of the National Guards or the Reserves may be mobilized with little or no notice. USERRA protects service members’ employment, including when members leave their employment to report for duty without notice, if providing notice is impossible or unreasonable.
The COVID-19 affects people differently. For employees who are asymptomatic or have only mild symptoms, it may not be a disability. However, for older persons, or persons with medical conditions complicated by the COVID-19, a COVID-19 diagnosis may trigger a duty to provide a reasonable accommodation under the ADA. But what about an older employee, or one with a respiratory condition, who does not have the virus yet reasonably fears coming to work might cause them to be infected? Employers should be open, if possible, to accommodating such requests, by allowing the concerned employee to work at home or, if that is not an option, by allowing the concerned employee paid or unpaid leave, as appropriate.
The FMLA provides up to 12 weeks of unpaid leave for eligible employees for qualifying events, for example a “serious health condition” the employee or his immediate family member is suffering. The FMLA provides various requirements for notice and evaluation of a qualifying event, including information from an employee’s physician. It is possible an employee who has COVID-19 or who is caring for an immediate family member with the virus could be eligible for leave under the FMLA. Employers FMLA obligation may be changed by the FFCRA.
Simply missing work for an illness is not typically compensable under worker’s compensation laws. However, what if the employee is infected with COVID-19 while acting in the line and scope of employment? While it’s unlikely an employee could trace a COVID-19 diagnosis back to the workplace, it is not necessarily impossible. Worker’s compensation claims will vary by employer and by fact pattern, and will depend largely on the type of work involved. Remember too that infection does not need to happen in the physical workplace—consider the potential for contracting the disease when scheduling travel or work errands. Following the CDC’s and OSHA's recommendation for workplaces will likely help reduce risk of being found at fault.
Beware of workplace policies that could have a discriminatory impact. As an example, a policy requiring that all individuals 70 and over work from home would be reasonable because those individuals are at greater risk for developing more severe complications from the virus, could be a violation of the Age Discrimination in Employment Act. Also be sure to watch out for discrimination or harassment against an ethnicity (such as Chinese, Italian, or Iranian) where the outbreak of COVID-19 is more widespread. For example, adverse treatment of an employee because of the employee’s ethnicity - such a isolating an employee because of the employee’s ethnicity - could give rise to a discrimination claim.
When an employer learns that an employee (or contractor, client, or anyone else with whom employees might have been in contact at the workplace) has tested positive, what can the employer tell employees? Employees should be provided information needed to assess the risk to themselves, but the name of the infected employee should not be released, even if under the circumstance employees can figure out for themselves the employee's identify, or if social media has already made the employee's name known.
Not necessarily. On March 19, 2020, Governor Ivy issued an order that prohibits, “All gatherings of 25 persons or more, or gatherings of any size that cannot maintain a consistent six-foot distance between persons, are prohibited. This Order shall apply to all gatherings, events or activities that bring 25 or more persons in a single room or single space at the same time.” Clarification of this order provides that the prohibition is intended to curtail nonessential social gatherings and not most business operations.
However, certain business operations are impacted. For example, “Any restaurant, bar, brewery or similar establishments shall not permit on-premise consumption of food or drink.” In addition, some other businesses, such as certain day care facilities are also impacted.