As the number of confirmed positive cases of Coronavirus Disease 2019 (“COVID-19” or “coronavirus”) in the U.S. continues to rise, employers must prepare for issues that will inevitably arise as the virus spreads. While the Center for Disease Control (“CDC”) currently advises that “most people in the United States will have little immediate risk of exposure,” it is prudent for employers to evaluate their organizations’ current policies and practices in the event a major outbreak occurs. Some issues to consider include the following:
Can employers prevent employees from coming to work?
Employers are understandably concerned about providing a safe environment for their employees. 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. However, employers may only administer medical tests for employees where there is an established job-related necessity, as such tests otherwise may violate the Americans with Disabilities Act (“ADA”) and rights to privacy.
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 (which is currently identified as a 14 day incubation period). As discussed below, the employee may be eligible for protected leave under the federal Family and Medical Leave Act (“FMLA”) and corresponding state laws. 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.
Employers should be careful not to make assumptions based on characteristics protected under state and federal law. For example, employers may not take virus-related actions (such as prohibiting employees from coming to work or asking questions about employee travel and contact), based on an employee’s race, ethnicity or national origin. All preventative measures and policies should be enforced uniformly and consistently by employers.
What should employers do if employees are reluctant to come to work?
Given the media attention COVID-19 has received, many employees may fear for their health and preemptively seek to avoid the workplace despite the low number of outbreaks recorded in the U.S. In order to combat misplaced employee fears, employers should consider proactive measures. Among other things, employers can regularly update employees on the relative risk of outbreak in the employer’s area, provide hand-sanitizers and other cleaning materials to encourage positive hygienic behavior, and encourage sick employees to stay home and seek medical care. Additionally, providing employees with information on what symptoms to look for, links to the World Health Organization (“WHO”), and CDC updates will likely inspire confidence that the employer is actively monitoring the situation.
Many state laws protect an employee’s right to a safe environment. For example, the California Occupational Health and Safety Administration (“Cal/OSHA”) protects employees from working conditions that could pose an imminent danger to employees. Should an employee refuse to come to work due to COVID-19 outbreaks, the Cal/OSHA regulations may be implicated and could protect an employee should their concerns of exposure be reasonable. States outside of California have similar laws. It is in the employer’s best interest in these circumstances to speak with legal counsel first to assess any applicable legal issues.
Are employees able to use FMLA leave in connection with the coronavirus?
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 out of fear of contracting COVID-19 would not typically qualify for FMLA leave.
What ADA considerations and implications are important in connection with the coronavirus?
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 to continue to apply leave policies and other workplace polices in a uniform, equitable, and neutral fashion.
Further, under Section 1630.2(r) of the ADA, an employer may require that an employee undergo a medical evaluation if the employee’s condition could pose a “direct threat,” to the workforce due to the employee’s medical condition. 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.”
Can employers restrict employee travel? Can employers force employees to travel?
As discussed, employers can mandate that employees report on their recent travels to assess exposure risks. Employers can encourage employees not to travel during this time and cancel business travel to high risk destinations. Employers should be sensitive to employee requests to avoid travel, particularly to high risk countries.
Should employers update their employment policies?
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, the workplace resources available to employees, and points of contact in the event an exposure occurs. It may also be advisable to permit employees to stay home to care for sick family members.
Employers should review their remote work or telecommuting policies as a means of preparing for workforce reductions due to illness. In order to minimize the impact an outbreak may have, employers will want to ensure seamless transitions to remote working in the event the outbreak leads to voluntary or mandatory periods of quarantine. Businesses should be prepared to be flexible with the application of its leave policies in order to accommodate any changes in CDC recommendations and public health guidelines.
What other precautions should employers take?
Finally, employers should create or update emergency contingency plans and implement heightened hygienic practices. Employers should review any disease plans/protocols in their companies’ Injury and Illness Prevention Programs. The CDC’s list of considerations in preparing a flexible response plan includes identifying work-related exposure to your employees, planning to use social distancing techniques (such as working remotely), and planning for business interruptions in supply chains. As part of their plans, some employers are increasing workplace cleanings and placing employees in “backup sites” to stop or slow the spread of the virus in case of contamination. OSHA recommends organizing a central team of people to guide the company through any crisis, working with insurance companies and unions when developing the plan, and informing employees of the plan.
These are just a few considerations for employers facing COVID-19. It is an uncertain time for both employers and employees alike, as the future impact of COVID-19 on the everyday life of U.S. citizens remains unclear. Many employment-related issues may be implicated during this time. Employers are encouraged to work with legal counsel when navigating these complex issues.
Sheppard Mullin’s Labor and Employment Practice has established a designated COVID-19 task force to assist employers with this process.
Labor and Employment COVID-19 Task Force
For more legal insights visit our Coronavirus (COVID-19) page.