Pillar+Aught is receiving numerous calls and emails from employers who have a variety of questions regarding Coronavirus (“COVID-19”), its impact on their workplaces, and possible employment laws that may be implicated.
This past week, our Labor & Employment Law group met and put together a FAQ to address the most common questions we are fielding. If you have any questions about the FAQ or COVID-19, please feel free to reach out to any member of the group.
Frequently Asked Questions from Employers
As reports of COVID-19 infections continue to grow, employers are faced with a wide variety of legal issues and concerns that must be addressed as they respond to evolving events. Employers should understand that decisions involving the impact of COVID-19 on employees and the workplace implicate a variety of employment laws, including (to name just a few) the Occupational Safety and Health Act (“OSHA”), the Americans with Disabilities Act (“ADA”), the Family and Medical Leave Act (“FMLA”), Title VII of the Civil Rights Act of 1964 (“Title VII”), the Age Discrimination in Employment Act (“ADEA”), and the Fair Labor Standards Act (“FLSA”).
At present, the primary struggle employers face in connection with COVID-19 is the inherent conflict between OSHA and the ADA. Employers must balance their obligation to provide a workplace free of any recognized hazards (OSHA) with the prohibition on “regarding” an employee as having a disability or requiring employees to undergo medical examinations unless the it is job related and consistent with business necessity (ADA). That being said, given the growing concern regarding the COVID-19 outbreak, and as indicated below, employers are encouraged to err on the side of caution to prevent the spread of the virus in their workplaces and ensure the health and safety of all of their employees, clients, or customers. This includes reviewing and, if necessary, temporarily revising employee telecommuting and leave policies.
The questions and answers set forth below highlight key issues that employers may be called on to consider when confronting the COVID-19 outbreak. NOTE: These responses are for informational purposes only. In many, if not most, cases, the ultimate resolution will depend on the particular facts and circumstances of each situation (including the impact or effect on certain state or local laws). To that end, employers should not hesitate to consult with counsel to further understand their rights, obligations, and options in each instance. Furthermore, employers are encouraged to stay up to date on the latest developments and guidance from the Centers for Disease Control and Prevention and the Department of Labor’s Occupational Safety and Health Administration via the following websites dedicated to information regarding COVID-19:
Can I instruct an employee to stay home or leave work if they exhibit symptoms of COVID-19?
Yes. An employer can require an employee who exhibits symptoms of COVID-19 to leave work and not return until he or she has sought medical attention and/or fully recovered.
Can I require an employee to be tested for COVID-19 before being allowed to return to work?
Yes, but only if the employer has reason to believe—based on objective factors—that the employee may pose a direct threat to the health and safety of others (e.g., the employee has fallen ill after a recent trip or is exhibiting symptoms of infection consistent with COVID-19). Under the ADA, “medical examinations” are prohibited unless they are job-related and consistent with business necessity, but there is an exception to this rule when such exams are necessary to ensure the workplace is free from direct threats to the health and safety of the employee or others. Given the growing concern regarding COVID-19, it is likely that, if an employer can demonstrate that an employee has symptoms of COVID-19 or has other risk factors of exposure to the virus, that employer would be justified in requiring the employee to undergo a medical exam before he or she returns to work. However, given the relative scarcity of COVID-19 tests (at least at present), it may be more beneficial for the employer to simply require that the employee to self-quarantine until he or she has fully recovered or, in the case of suspected exposure, until the 14-day presumptive incubation period has passed.
An employee just left for a cruise. Can I require him to self-quarantine before returning to work?
Yes. The U.S. Department of State has recently issued a recommendation that U.S. citizens should not travel by cruise ship due to the increased risk of exposure to COVID-19. If the employee cannot cancel his trip and chooses to go despite this recommendation (and the time off has been previously approved), you should tell the employee that he will need to self-quarantine for the 14-day presumptive incubation period after his trip ends before he is permitted to return to work.
An employee has tested positive for COVID-19. What are the first steps? What can I tell my employees?
All employees who worked closely with that employee should be sent home for a 14-day period of time to ensure the infection does not spread. Ask the infected employee to identify, to the best of his or her ability, all individuals with whom he or she may have worked in close proximity (three to six feet) in the previous 14 days to ensure a full accounting of those who should be sent home. Messaging to employees, customers, and third parties (clients, customers, or vendors) about the issue should be clear and concise (e.g., “We have reason to believe you recently interacted with an employee who has tested positive for COVID-19.”), but in no event should the identity of the infected employee be revealed.
What are my reporting obligations in the event an employee tests positive for COVID-19?
There is no obligation to report a suspected or confirmed case of COVID-19 to the CDC. That responsibility is handled by the healthcare provider who receives confirmation of a positive test result. Employers, DO, however, have reporting and recording keeping obligations under OSHA vis-à-vis a confirmed case of COVID-19 in the workplace. According to guidance from the Occupational Safety and Health Administration:
Recording workplace exposures to COVID-19
OSHA recordkeeping requirements at 29 CFR Part 1904 mandate covered employers record certain work-related injuries and illnesses on their OSHA 300 log.
While 29 CFR 1904.5(b)(2)(viii) exempts recording of the common cold and flu, COVID-19 is a recordable illness when a worker is infected on the job.
What are my payment obligations to employees who have been instructed to stay home?
Under federal law, employers are required to pay nonexempt, hourly employees only for hours they actually work. Thus, if a nonexempt employee is instructed to stay home—and not work—there is no payment obligation absent any accrued paid time off available to the employee. Conversely, exempt employees are entitled to their weekly salary in any workweek in which they perform any work. Thus, if a salaried employee is quarantined during a workweek in which he or she already performed work, the employer must pay the full salary for that week. However, the employer would not be required to pay the salary in any workweek in which the employee fails to perform any work (once again, absent any accrued paid time off available to the employee). All that being said, employers are free to make temporary payment arrangements in light of the current COVID-19 outbreak to help alleviate the financial burden faced by employees who, through no fault of their own, may be forced to stay home from work to help ensure a safe work environment for others.
An employee refuses to come to work for fear of becoming infected. Can she be disciplined?
It depends. OSHA prohibits employers from terminating someone who refuses, in good faith, to expose herself to a dangerous job condition and who has no reasonable alternative but to avoid the workplace. However, the condition causing this fear must be objectively reasonable. Moreover, the threat must be immediate or imminent, which means that an employee must believe that death or serious physical harm could occur within a short time. At present, most work conditions in the United States do not meet the elements required for an employee to refuse to work. To reiterate, this guidance is general, and employers must make a determination regarding the objective state of the workplace (e.g., by relying on up-to-date information from public health officials) before determining whether it is permissible for employees to refuse to work.
Do I have to allow an employee to wear a surgical mask or respirator in the workplace?
Generally speaking, no. Absent a legally recognized disability, unique physical condition, or an occupation where employees work directly with those impacted by COVID-19, you are generally not required to allow workers to wear masks at work.
School has been closed, and some employees cannot arrange for childcare. What can be done?
Federal law does not require employers to provide leave for employees caring for healthy dependents who are unable to attend school. Thus, employers have no obligation to provide employees with leave (whether paid or unpaid) to remain home with children during an extended school closure (once again, absent any accrued paid time off available to the employee). Of course, employers are encouraged to come up with creative solutions to address this issue by, for example, making arrangements for telecommuting, reducing or modifying schedules, or advancing additional paid time off, if feasible.
What discrimination concerns are implicated by COVID-19?
As these issues are being addressed, employers must always be mindful of any unintentional bias that may trigger liability under discrimination laws. If telecommuting arrangements are being made for some employees but not others, be sure that you are able to articulate a legitimate, nondiscriminatory reason for the decision. Moreover, while concerns relating to national origin discrimination were at the forefront of the COVID-19 outbreak, those issues appear to be subsiding. Be mindful, however, of any perceived age or disability discrimination issues, particularly where the information from public health officials indicates that older employees and those with compromised immune systems are more susceptible to the virus. A policy that requires these employees—but not others—to self-quarantine, no matter how well intended, will very likely run afoul of the ADA and the ADEA.