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Employment Law Alert: Coping With COVID-19

By Labor & Employment

This is a summary of general advice to employers regarding common issues arising out of the coronavirus event.
 
Almost hourly, our knowledge about the virus is changing, but we are keeping up with the most recent government and medical guidance. This paper was last revised on March 19, 2020, the morning after the Senate finalized and the President signed the most recent COVID-19 legislation.

What steps should employers take to prevent spread?

There are a number of steps that employers can take to lessen the probability of the spread of the virus. In fact, the General Duty Clause of the federal Occupational Safety and Health Act (OSHA) imposes a legal duty on employers to provide a safe place to work. The Occupational Safety and Health Administration has issued a Guidance under the General Duty Clause regarding the preparation of workplaces for COVID-19, and the isolation of potentially infectious individuals is a critical step in protecting workers, customers, visitors, and others at a worksite. Arguably, then, not only do employers have the ability to make COVID-19-related inquiries in the workplace, but employers may also have a legal responsibility to do so.

1. What can and should I ask my employees about their health?

Employees should be repeatedly reminded of the aggravating factors for spreading and contracting the virus. These include failure to practice social distancing, common use of tools and work equipment without disinfecting, unnecessarily touching surfaces, especially smooth hard surfaces, and failure to practice good personal hygiene, including not covering a cough or sneeze with an arm or elbow or stepping away, if time permits.

Neither federal anti-discrimination law nor concerns about HIPAA should stop employers from making proper inquiries about their employees’ health status.

In February, the Office of Civil Rights of the US Department of Health and Human Services emphasized that HIPAA restricts the unauthorized dissemination of Protected Health Information (PHI) only by “covered entities” and their business associates. The Office of Civil Rights made clear that employers as employers – even if they operate in the health care field and even if they are a business associate – are not “covered entities” for purposes of HIPAA.

The U.S. Equal Employment Opportunity Commission (EEOC) has issued a “News Alert” on COVID-19. The EEOC has taken the following positions, all of which come down in favor of employer-preparedness and response:

  • During a pandemic, ADA-covered employers may ask employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
  • Generally, measuring an employee’s body temperature is a medical examination. Because the Center for Disease Control and Prevention (CDC) and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperatures. However, employers should keep in mind that some people with COVID-19 do not have a fever.
  • Employers may require employees to go home. The CDC states that employees who have symptoms of COVID-19 should leave the workplace. The ADA does not interfere with employers following this advice.
  • Employers may require a medical certification to return to work after COVID-19. Such inquiries are permitted under the ADA either because they would not be disability-related or because the pandemic is truly severe, and they would thus be justified under the ADA standards for disability-related inquiries of employees. As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.

In addition to these specific questions approved by the EEOC, employers also can ask their employees other questions designed to protect the employee and others in the workplace, including:

  • Have you, or anyone in your household, traveled to a high-risk area in the last fourteen days? Areas designated as Level Two or Level Three are appropriate topics of inquiry. A week ago, this question might have been limited to Italy, South Korea, Iran, China, and Japan. Today, as new information comes to light regarding the prevalence of the virus in Europe, such an inquiry should include the entire Schengen Area of Europe (Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, Switzerland, Monaco, San Marino, Vatican City), and the United Kingdom or Ireland.
  • Have you been exposed to anyone who has exhibited the core symptoms of COVID-19 in the last fourteen days? These core symptoms usually include dry cough, respiratory distress, and fever. However, some COVID-19 cases have been reported without fever.
  • In addition, we believe it is responsible and prudent to inform employees who have worked closely with an infected co-worker that they have been in close contact with a COVID-19-infected individual and to allow those workers (or compel them) to self-quarantine for fourteen days. To the extent possible, because of possible state privacy laws, employers generally should not identify the individual who has been diagnosed.

2. What shouldn’t I ask my employees?

  • When we first became aware of the COVID-19 emergent issue out of China, it was important for employers to be sensitive to the possibility of discriminatory treatment of Asian individuals, employees or not, in the workplace. While the expansion of the Level Two-Level Three area outside of Asia makes this form of discrimination less likely, please make sure your supervisors do not make improper national origin inquiries.
  • While we believe it is proper to ask employees about their COVID-19 symptoms, exposure to affected areas, and exposure to affected individuals, employees should NOT be interrogated about their pre-existing risk factors for the virus, such as age, diabetes, auto-immune disease, asthma, or any other factor. These factors often affect the severity of the disease, but are usually irrelevant to the spread of the infection, and are less likely to be blessed by the EEOC as relevant to preventing a severe workplace risk.

3. What about visitors, clients, and vendors?

There is nothing in federal EEO law, or otherwise, that prohibits an employer from limiting access to the workplace by clients, customers, visitors, vendors, and others. These individuals can be subjected to the same restrictions and inquiries as employees. However, while most businesses are not “places of public accommodation” under the ADA, some businesses – particularly retail establishments and other businesses generally open to the public – are. Make sure that you confine your questions in order not to create a disparate impact on a group of individuals due to a possible disability. You should adhere to the same requirements as set forth above for inquires to employees. For example, it is permissible to ask a visitor to stay outside of your business if they present with a dry cough and a fever, but it is likely not permissible to ask customers whether they have asthma before letting them in!

Do I have to report a sick employee to the CDC?

No. The responsibility for reporting cases of COVID-19 to state and local health agencies, which then report to the registry at the CDC, is on physicians and health care providers. Employers are not required to report confirmed cases. In some states, privacy laws or the common-law right to privacy make it advisable for employers not to reveal this information.

The best current advice is good hygiene and personal practices.

Remind employees that the best way to prevent the spread of the virus, and to minimize their chances of becoming sick, are the standard hygiene practices that we are supposed to practice at all times. A sign in the restroom, reminding folks that rinsing their hands does nothing while vigorous washing for 20-30 seconds with soap and warm water helps. Place tissues and sanitary wipes in the workplace. Make hand sanitizers available. Consider providing masks and gloves for individuals who have public-facing responsibilities.  A small expense now may avoid business disruption down the line.

Counsel your employees to increase their personal space. Post a sign telling your clients, members, or customers that, out of an abundance of caution, you have asked your employees to refrain from hugging, shaking hands, or any physical contact with co-workers or the public. Make the sign friendly and welcoming.

One of the primary places viruses like to hide is telephone headsets, both conventional and through a microphone. A  single cough on a photocopier can infect an entire office. Computer keyboards harbor bacteria and should not be shared unless thoroughly cleaned between users. Clean and wipe things your employees would not normally clean and wipe, including chair arms and handles, file cabinet and drawer handles, printers, coffee makers, refrigerator doors and handles in the break room, doorknobs (and not only to and from the restroom). Wipe down the handles on top of candy jars. Develop a corporate culture of sanitization.

For more tips, check the Centers for Disease Control website here.
 
4. What is the law on sick and personal leave?

The second coronavirus relief bill, H.R. 6201, was passed by the Senate and signed by the President on March 18, 2020. This Act gives employees specific leave rights based on COVID-19 conditions and circumstances. Generally, it provides for Emergency Paid Leave and adds a category to FMLA – and makes that FMLA benefit available to employees of many smaller companies, under fifty employees, who are otherwise not generally subject to the FMLA. Neither of these provisions is effective today. Both new leave provisions provide they will be effective “not later than” fifteen days from enactment, or April 2, 2020. Here is what the Act does:

  • Establishes Emergency Paid Leave: giving employees an additional 80 hours (or two weeks’ average working time for hourly employees) in PTO to be taken for COVID-19- related purposes. This leave would not need to accrue and could be taken immediately.
    • The Emergency Paid Leave could be taken in the following circumstances, provided the employee is “unable to work (or telework)” due to a COVID-19 circumstance or condition:
      • The employee is subject to a formal state, federal, or local quarantine or isolation order;
      • The employee has been advised by a health care provider to quarantine;
      • The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
      • The employee is caring for someone subject to a formal quarantine order or isolation order who has been advised to quarantine by a health-care provider;
      • The employee is caring for a minor who is at home due to a school or daycare closure; or
      • The employee is suffering from a “substantially similar condition” designated by the Secretary of HHS.

        Please note that the Act, as passed, does not allow employees to claim the Emergency Paid Sick Leave benefit if they are self-quarantining, or if their employer sends them home, or if they are simply afraid of contracting COVID-19 at work or outside.

    • This is employer-paid Emergency Sick Leave.
    • An employer of an employee who is a health care provider can self-exclude its employees from this provision. “Health Care Provider” is defined using the existing FMLA definition (even though this new provision does not come under FMLA.) That includes employees who are an M.D., D.O., podiatrist, dentist, clinical psychologist, optometrist, chiropractor, nurse practitioner, nurse-midwife, clinical social worker, physician assistant, or any other health care provider from whom the employer (or its insurance plan) would accept a certification of a serious health condition for purposes of FMLA. Thus, although nurses are not mentioned in the FMLA statute or regulation, for most employers, they would be “health care providers” for purposes of emergency leave. Please note that the final Act allows employers to self-exclude its health care providers (or first responders)  from Emergency Paid Sick Leave.
    • The employer would pay the employee at their regular rate for this paid leave; however, this obligation would be capped at $511 a day (and no more than a total of $5,110 per person), for leave based on the employee’s own quarantine or isolation order, the employee’s own health-care-provider directed quarantine, or the employee’s own symptoms while seeking a diagnosis. The employer pay to the employee is capped at $200 a day (and not more than a total of $2,000 in the aggregate) for care for a child who is at home and requires childcare due to the closure of a school or daycare facility, care for another who is under a quarantine or isolation order or who is symptomatic and seeking a diagnosis, or for a “substantially similar condition.” In addition, for these latter “care for another” categories, the employer may pay 2/3 of the employee’s regular weekly rate.  However, the $200 cap likely will make this irrelevant for many employees.
    • The U.S. Department of Labor is directed to develop regulations in two areas:
      • To exclude companies with fewer than fifty employees from the Emergency Paid Sick Leave benefit if providing the benefit would “jeopardize the viability of the business as a going concern, and
      • To set standards under which companies employing health care providers or first responders may exclude those employees from Emergency Paid Sick Leave.

        Such regulations, of course, are not yet in place. 

  • Amends the federal Family and Medical Leave Act, making it applicable to all employers who have fewer than 500 employees, even currently-exempt employers with fewer than fifty employees, for a single COVID-19 related leave purpose: to provide FMLA leave to someone who is “unable to work (or telework)” in order to provide child care for a minor son or daughter staying at home because of a COVID-19 required school closing or daycare closing. Earlier versions of the bill provided for a wide range of other COVID-19-related conditions under FMLA; the final act does not.  The Act:
    • changes the qualification period for employees (for COVID-19 child care purposes only) from one year/1250 hours to a mere 30 days;
    • allows the first 10 days of leave to be unpaid – at the employee’s but not the employer’s option – or to be covered by PTO;
    • requires that FMLA leave for COVID-19 child care purposes be paid by the employer after the first ten days, at a rate equal to 2/3 usual salary (capped at the same $200 per day level as above, and ultimately capped at $10,000 in aggregate for any employee);
    • for employers with under 25 employees, permits the employer to reinstate the returning employee to a position that is not the same as or substantially similar to the position the employee had before leave if the position no longer exists, and subject to other conditions, and
    • again, the final Act allows employers to self-exclude its health care providers (or first responders)  from this expanded FMLA coverage.
    • As with Emergency Paid Sick Leave, the U.S. Department of Labor is directed to develop regulations in two areas:
      • To exclude companies with fewer than fifty employees from the expanded FMLA benefit if providing the benefit would “jeopardize the viability of the business as a going concern, and
      • To set standards under which companies employing health care providers or first responders may exclude those employees from the expanded FLMA benefit.

        Such regulations, again, are not yet in place.

  • Creating tax credit from which employers will be compensated for these new leave requirements. The intent of the provision is to allow employers to take a credit from the employer’s-share Social Security tax, currently 6.2% of wages, to pay for 100% of the cost of qualified sick leave wages and FMLA paid leave.

What should employers be thinking of right now?

  • Apply sick leave, PTO, annual leave, and sick-and-safe leave policies liberally if someone returns from a high-risk area, or if someone comes down with even a mild case of coronavirus, or lives with someone who has it, or has been exposed.
  • Consider allowing negative leave balances to accrue, even if your policy otherwise prohibits it.
  • Most COVID-19 cases themselves will probably not be sufficiently severe for the Family and Medical Leave Act, or its state-level counterparts, to apply. Nevertheless, consider allowing, requesting, or even requiring employees who present with active coronavirus symptoms to apply for FMLA leave. In serious and debilitating cases, take the initiative in sending the application. Remember, these are folks whose absence from the workplace is not only of benefit to them but also to everyone else at the organization.
  • If your organization can afford it, and hourly employees would otherwise not have paid leave during the 14-day period they likely would need to stay home, consider paying them anyway. We recognize not all employers can do this; if you can, please consider it.
  • Consider restricting the number of your employees who have active contact with the public. A financial institution may choose to have one or two tellers active rather than four. An automobile dealership may choose to have two or three sales representatives on the floor at any one time rather than four or five.
  • Look at telework for employees who do not need to be in the office. Many, or perhaps even most, cases of COVID-19 are mild, and the affected employees can continue to work. If you do not have a telework policy, consider developing one now.
  • If someone has been sent home, do not let him or her return to work until he or she can produce a doctor’s note or other documentation that they are not contagious, or have been fever-free (under 100.4 F) for a full day without the use of fever-reducing medicine.
  • As a final resort, consider temporary business closures. Of course, employers in areas with mandatory closures – and those areas are spreading – should comply fully with the law.

Above all, do not panic. And do not instill panic in your employees.
 
Be flexible, be ready to adapt, but do not panic. Be kind and appreciative of those who must continue to work in order to bring us vital services. Please stay tuned.
 
Historical Note:

During the deadly 1918-1919 flu pandemic, in which 675,000 persons died in the U.S. from a population less than 1/3 our current size, the municipal responses to the pandemic, and even the day-to-day responses by businesses, varied. St. Louis, for instance, came through that pandemic much more easily than Philadelphia, where fear sometimes reigned. The Virginia General Assembly stayed in session in January 1920 even though over half of the legislators were home with the flu. The coronavirus pandemic may present in one broad sweep, shutting down much commerce. Or it may present as a “normal” flu season does these days, which may require no adjustment to policies and practices. The 1918-1919 pandemic presented in two waves, one mild (but seriously debilitating for those who had it) and one much more widespread, after a hiatus of a few months. Changes in policies and practices may also depend on who the coronavirus targets: the pandemic 100 years ago targeted healthy young adults, which would have more of an impact on business and employers than a more “normal” viral respiratory infection, which targets mainly the very young, the very old, and the immune-compromised. Different presentations may require different policies.
 
If you have any questions or concerns relating to COVID-19, please contact us.


The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances. Copyright 2020.