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FAQ’s (and Answers) For Employers Dealing With The Coronavirus (Updated March 11, 2020)

Posted on: March 11th, 2020

By: Brad Adler

As I’m sure many of you have heard or read, a new virus (COVID-19 aka “Coronavirus”) first found in Wuhan, China in late 2019 has been spreading across the world and is now emerging in the United States on an increasing scale.  As employment issues surrounding the Coronavirus continue to arise, below are some answers to commonly-asked questions that employers may be asking in addressing Coronavirus-related issues.

In addition, employers should read and be familiar with the Guidance the CDC issued for employers in handling Coronavirus-related issues.  https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html

What Is It?

Based on what health officials know right now, the Coronavirus is not a flu, but a pneumonia-like infection.  The virus symptoms manifest as a mild to severe respiratory illness with fever, cough, and difficulty breathing. The Centers for Disease Control (CDC) believes at this time that symptoms may appear in as few as two days or as long as 14 days after exposure.

How Does It Spread? 

The disease can spread from person to person through small droplets from the nose or mouth, which are spread when a person with the Coronavirus coughs or exhales. These droplets also then land on surfaces around the person and others can catch the Coronavirus when they touch these same surfaces, particularly if they then touch their mouth, nose or eyes.

What If An Employee Tests Positive For The Coronavirus?

Ask the employee to stay out of work until 14 days after the employee was diagnosed with the Coronavirus, unless a doctor certifies that it is safe for the employee to return to work earlier.  Further, you should promptly notify colleagues who work with that employee that they may have been exposed to a person with the Coronavirus and request that they visit their doctor to confirm that they did not contract the virus.  In the absence of a confirmed diagnosis of an employee, we suggest that you do not issue a blanket instruction that all employees have to get tested as such a directive could run afoul of the Americans with Disabilities Act’s general prohibition against medical examinations for employees unless “job-related and consistent with business necessity.”

Further, employers should ensure the confidentiality of all employees’ medical information to prevent harassment or a violation of the ADA’s medical privacy rules.  If an employer believes it is necessary for the safety of other employees to identify a confirmed Coronavirus victim to others in the workplace so the employer can determine who may have been exposed to that individual, it is important to first discuss the issue with employment counsel (and possibly governmental officials) due to the privacy implications, both under the ADA and state law.

What Should An Employer Do If An Employee’s Household Member Tests Positive For The Coronavirus Symptoms?

We believe it is appropriate to ask employees to notify your designated Coronavirus-response person (typically someone in Human Resources) if a member of an employee’s household is diagnosed with Coronavirus.  Once notified, the employer should request the employee stay out of work until the employee visits his/her doctor to confirm that the employee did not contract the virus or they also can self-quarantine themselves for 14 days.

What Should An Employer Do If An Employee Presents Coronavirus Symptoms, But Is Not Confirmed With The Coronavirus?

If you have an employee who presents Coronavirus symptoms at work (but not yet diagnosed with the Coronavirus), we suggest that you send the employee home and request that they get tested and cleared from having the Coronavirus before returning to work or they also can self-quarantine themselves for 14 days.  If the employee exhibits the symptoms at home, ask them to stay out of work until they get tested and cleared from having the Coronavirus or they also can self-quarantine themselves for 14 days.  It is important that your Human Resources representative is involved in these situations so you can navigate any unique issues.

Further, you should try and determine who the employee interacted in close proximity with at work (typically six feet or less) in the previous 14 days, including by asking the employee for help in identifying those individuals.   After those individuals are identified, you should notify them of their potential exposure to an individual with the Coronavirus.

Employers, however, should avoid identifying the infected employee to other employees (or customers or vendors) to prevent harassment or a violation of the ADA’s medical privacy rules.  If an employer believes it is absolutely necessary for the safety of other employees (or customers or vendors) to identify a confirmed Coronavirus victim to others in the workplace (or customers or vendors) so the employer can determine who may have been exposed to that individual, it is important to first discuss the issue with employment counsel (and possibly governmental officials) due to the privacy implications, both under the ADA and state law.

What Should An Employer Do If An Employee Reports That He/She Interacted With Somebody Who Has Been Diagnosed With The Coronavirus?

Once notified, the employer should request the employee stay out of work until the employee visits his/her doctor to confirm that the employee did not contract the virus or they also can self-quarantine themselves for 14 days.  Further, you should try and determine who the employee interacted in close proximity with at work (typically six feet or less) in the previous 14 days, including by asking the employee for help in identifying those individuals.   After those individuals are identified, you should notify them of their potential exposure to an individual with the Coronavirus.

Employers, however, should avoid identifying the infected employee to other employees (or customers or vendors) to prevent harassment or a violation of the ADA’s medical privacy rules.  If an employer believes it is absolutely necessary for the safety of other employees (or customers or vendors) to identify a confirmed Coronavirus victim to others in the workplace (or customers or vendors) so the employer can determine who may have been exposed to that individual, it is important to first discuss the issue with employment counsel (and possibly governmental officials) due to the privacy implications, both under the ADA and state law.

What Should An Employer Do If An Employee (Or An Employee’s Household Member) Returns From An International Trip, But Has Not Exhibited Any Coronavirus Symptoms

This is tricky so you have to make sure you are watchful in dealing with this type of situation.  As of March 3, 2020, the State Department has advised travelers to avoid all non-essential travel to China, Italy, South Korea, Azerbaijan, Mongolia, Turkmenistan and Iran https://travel.state.gov/content/travel/en/traveladvisories/traveladvisories.html/.  The CDC also has advised identified Japan (Level 2) and Hong Kong (Level 1) as areas of heightened risk for the coronavirus.  https://www.cdc.gov/coronavirus/2019-ncov/travelers/index.html.

As a result, if an employee does travel internationally to China, Italy, South Korea, Azerbaijan, Mongolia, Turkmenistan and Iran, even if they present no symptoms, it is advisable to require that employee to either wait 14 days or visit their doctor to confirm that they did not contract the virus before returning to the workplace.  If an employee travels to Japan or Hong Kong, but exhibits no symptoms, you can require the employee to wait 14 days before returning to the workplace, but you should typically avoid requiring an employee to present any type of clearance from a doctor.  If an employee travels internationally to a location that is not on the CDC or the State Department’s coronavirus travel advisory list and exhibits no symptoms, then we do not advise imposing any type of return to work condition.

Do I Have To Pay The Employee While Out Of Work?

Under the Fair Labor Standards Act (federal wage/hour law), you do not have to pay non-exempt hourly employees while they are out sick.  If, however, they perform work while at home, you must pay them for those hours (so it is critical that the employees keep a record of their hours worked).  If a non-exempt hourly employee wants to use PTO while the employee is out sick and not being paid, that is permissible.  For exempt employees, unless they are out for an entire workweek, you should pay them their normal salary for the workweek in which they miss time because of your “stay out of work” instruction.  Of course, many states and some cities and counties have their own wage and hour, leave and paid time off laws that you will need to consider when assessing how you handle Coronavirus-related absences.

Can I Restrict Employees From Traveling Internationally?

If the travel is work-related, then an employer can ban an employee from traveling internationally.  If the travel is not work-related, then you typically will be permitted to restrict travel to international destinations, but it is prudent to limit the travel to areas designated as at least a heightened-risk of coronavirus by the White House, CDC or the World Health Organization as several states have laws that prohibit an employer from taking action against an employee for “lawful off-duty” activities.  These types of restrictions could prove important both to protect employees from exposure to the Coronavirus and to limit the risk of travelers becoming stranded by travel limitations or quarantines overseas.

How Do I Avoid National Origin Discrimination?

This one is pretty simple.  Don’t make judgments on how to treat an employee based upon the national origin (or race) of the employee.  Rather, your decisions should be based upon reasonably objective information that you have received from both the employee and the U.S. Government (or World Health Organization) on where the employee is going and whether he has interacted with an individual diagnosed with the virus.  Remember that an employer may deny time off for an employee’s personal travel, but it should be based on the employee’s travel destination, the business cost of any potential resulting quarantine, or other legitimate business-driven interest.

What If An Employee Wants To Wear A Respirator Or Mask At Work Or Requests Not To Come To Work?

At this time, there is no general requirement for non-healthcare employees to wear respirators or other types of personal protective equipment and the CDC is not recommending use of facemasks or any other protective equipment by the general public.  As a result, employers have a wide amount of discretion to determine whether to allow the use of a respirator or a facemask.  For any employee who requests to not come to work out of fear of being around others and contracting the virus, unless that employee has a reasonable objective belief that someone at the workplace has the virus, you can deny the request.  If an employee still refuses to come in, you are permitted to discipline the employee.  If the employee is exempt, you also likely can choose not to pay them for the all-day absence.  Of course, if the employee is non-exempt, you don’t need to pay the employee for any hours unless the employee is working.

What Can We Do To Help Reduce Potential Exposure To The Coronavirus?

Providing employees with a written reminder about effective steps for reducing the risk of exposure to Coronavirus is a great way to let employees know you are paying attention to the issue and looking out for their safety.  A few things to include:

  • Remind employees to cover their mouths and noses when they cough or sneeze, and to immediately throw used tissues in the garbage.
  • Remind employees of the importance of regularly washing their hands (for at least 20 seconds with soap and water) and/or using an alcohol-based hand sanitizer containing at least 60 percent alcohol.
  • Avoiding touching your eyes, nose, and mouth with unwashed hands.
  • Avoiding close contact with people who are sick.
  • Ensure you have enough relevant supplies, including soap, hand sanitizer, tissues, paper towels, disinfectant, and trash receptacles.
  • Encourage the regular cleaning of frequently-touched surfaces in the workplace, such as workstations, countertops, and doorknobs.
  • Practice social distancing
  • Consider the use of tele-conferencing options instead of in-person meetings
  • Consider the feasibility of implementing a remote work policy

We know this is a new area for many employers so, if you have questions or need a sample “notice” to employees or a remote work policy, please do not hesitate to contact Brad Adler ([email protected]) or 770.818.1413.

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