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COVID-19: FAQs on Federal Labor and Employment Laws

The recent spread of the novel coronavirus (COVID-19) in the United States has caused employers to be increasingly concerned and uncertain regarding the future of their workforces. Below are some answers to frequently asked questions (FAQs) about the latest developments on the virus and guidance from federal agencies.

Note that the virus to which individuals are exposed is SARS-CoV-2. The disease it causes is COVID-19. For readability, these FAQs use the term “COVID-19.” Where appropriate, readers should read COVID-19 as the SARS-CoV-2 virus.

This general guidance is based on U.S. federal employment law and the current medical assessment of COVID-19, as of March 8, 2020. State and local laws may apply, and medical assessments may change, resulting in different conclusions.

Sending Employees Home; Excluding Employees From Work;

Requiring Employees to Work From Home; Returning Employees to Work

Question 1. May an employer send home an employee involuntarily who has or is exhibiting symptoms of COVID-19?

Answer 1. Yes. In response to the current COVID-19 outbreak, the Equal Employment Opportunity Commission has cited its 2009 pandemic H1N1 flu guidance, which states that advising workers with symptoms to go home either (a) is not a disability-related action if the illness is akin to seasonal influenza or (b) is permitted under the Americans with Disabilities Act (ADA) if the illness is serious enough to pose a direct threat to the employee or coworkers.  Further, the Centers for Disease Control and Prevention’s (CDC) guidance advises that employees with symptoms of acute respiratory illness and a fever (greater than 100.4 degrees Fahrenheit or 37.8 degrees Celsius, using an oral thermometer) should stay home. Of course, employers should apply this type of policy uniformly and in a manner that does not discriminate based on any protected characteristic (e.g., national origin, gender, race, etc.).

Q2. May an employer send home or require to work from home an asymptomatic employee who has been in close contact with someone with COVID-19 (e.g., a family member, close friend, etc.)?

A2. Yes, if the asymptomatic employee fits within certain categories established by the CDC’s guidance (last updated on March 7, 2020), which categorizes employees based on (a) symptoms (i.e., symptomatic or asymptomatic) and (b) risk (i.e., High, Medium, Low, or No Identifiable, which takes into account both (1) travel destinations and (2) level and type of contact with symptomatic individuals).

Under the CDC guidance, employees who are asymptomatic may be excluded from the workplace, if they:

  1. have close contact with,

  2. sat on an aircraft within 6 feet (two airline seats) of, or

  3. live in the same household as, are an intimate partner of, or are caring for at home, while consistently using recommend precautions [see here and here for home care and home isolation precautions],” for

a symptomatic individual with “laboratory-confirmed COVID-19.”

CDC defines “symptomatic” as subjective or measured fever, cough, or difficulty breathing. CDC defines “close contact” as:

a) being within approximately 6 feet (2 meters) of a COVID-19 case for a prolonged period of time; close contact can occur while caring for, living with, visiting, or sharing a healthcare waiting area or room with a COVID-19 case

– or –

b) having direct contact with infectious secretions of a COVID-19 case (e.g., being coughed on).

There are different standards and CDC guidance for healthcare employees.

The CDC reminds employers that in order to prevent stigma and discrimination in the workplace, employers should use its guidance to determine the risk of COVID-19. Employers also should consider reviewing pertinent guidance from state and local public health authorities on appropriate responses to exposure risks, especially as situations change. Employers considering actions beyond the CDC’s guidance (e.g., additional go home/work from home requirements) may want to consider the basis for those and consult with legal counsel.

Q3. May an employer send home or require to work from home an asymptomatic employee returning from travel to an area with “widespread sustained” transmission?

A3. Yes, if the employee falls into certain CDC risk categories (as explained in the answer to question 2 above). Among the considerations for these risk categories is travel to certain areas with “widespread sustained” transmission (i.e., covered by a CDC Level 3 Travel Health Notice). As of March 8, 2020, those areas include China, Iran, South Korea, and Italy. There currently are no travel advisories related to travel inside the United States, but employers can closely monitor updates from the CDC and state and local public health authorities. The CDC has advised that determinations should not be made based on race or country of origin.

Q4. May an employer require an asymptomatic individual with no known exposure to COVID-19 to telework from home for a certain period of time as a preventive or precautionary measure?

A4. Generally yes, as long as the employee’s duties allow telework. Permitting employees to telecommute may be particularly useful if there are documented cases of COVID-19 in the geographic area. Employers may want to continue consulting public health authorities in the applicable jurisdiction for additional recommendations and assessments as the virus spreads and situations change.

Q4. When may an employee who was sent home for exhibiting symptoms (subjective or measured fever, cough, difficulty breathing) return to work?

A4. The CDC has indicated that in general business settings (i.e., non-healthcare settings where individuals in the workplace are not at a greater risk of contracting COVID-19), employees may return to work at least 24 hours after no longer having or exhibiting (a) a fever (defined by the CDC as a temperature greater than 100.4º F or 37.8º C), (b) signs of a fever [what the CDC means is unclear], and (c) any other symptoms, without the aid of fever-reducing medicines (e.g., anything containing ibuprofen or acetaminophen) or other symptom-masking medicines (e.g., cough suppressants).

The return-to-work standards and time periods may be different for an individual with a confirmed COVID-19 diagnosis. Employers should consult the CDC’s and other public health authorities’ guidance.

Employers considering implementation of policies beyond the CDC’s guidance (e.g., a longer “return to work” time period) should consider the basis for those and consult with legal counsel.

An employer may want to meet with any returning employees to remind them to practice good respiratory etiquette and hand hygiene, avoid close contact with individuals who appear to be sick, and stay home if they begin to feel sick, for the health and safety of those employees and their coworkers, as well as the continued operations of the employer.

The CDC also has issued specific guidance for healthcare employees relating to risk assessment and management, which in certain respects provides more specific and expansive guidance regarding when to send healthcare workers home and when they may return to work based on their specific exposures or potential exposures. For example, based on certain categories of potential exposure, the guidance recommends sending a healthcare worker home for 14 days while monitoring for symptoms in coordination with state or local public health authorities. Healthcare employers should carefully review this guidance, consult with their state and/or local public health authorities, and consider changes to company policies regarding covered healthcare workers.

Q5. If an employee does not feel well enough to return to work at least 24 hours after no longer having a fever or exhibiting signs of a fever (without the aid of fever-reducing medications) or other symptoms, may he or she remain out of work?

A5. Yes. First, employers should follow current guidance from the CDC and public health authorities as it is updated. If an employee is given specific restrictions or instructions by a public health authority or a medical provider, it may prove helpful for the health of the workplace for employers to make all reasonable efforts to accommodate those instructions, including by providing additional leave as necessary.

Second, employers should continue to exercise sound discretion in taking proactive steps to minimize the risk of spreading the virus at work, such as the consideration of accommodations within reason of employee requests for additional time off from work. Third, employers should remain mindful of potential existing leave obligations under the Family and Medical Leave Act (FMLA) for serious health conditions or accommodations (including additional leave) under the ADA in which an employee’s illness might constitute an ADA disability. As a practical matter, during this outbreak, many employers may wish to encourage employees to stay home until they feel better, up to a reasonable point. Employers should make these decisions uniformly and be on the lookout for potential abuse.

Q6. May an employer require a return-to-work doctor’s note for an employee to return to work after exhibiting COVID-19 symptoms?

A6. A doctor’s note should not be a prerequisite for returning to work, according to the CDC. This is in part because this requirement would place a high burden on the healthcare system and healthcare provider offices and medical facilities may not be able to provide documentation in a timely fashion. If an employee’s situation meets the ADA’s “direct threat” standards, however, an employer may require a return-to-work doctor’s note (see question 7). Though the CDC’s guidance urges against requiring a return-to-work note, if the employee’s illness is a “serious health condition” under the FMLA (see questions 20 and 21), the employer would be able to require a return-to-work note if the employer complies with the FMLA’s guidelines for requiring such documentation, including, among others, notifying the employee in the initial determination that fitness-for-duty notes will be required and consistently applying the requirement to all FMLA leaves.

Q7. If an employee says he or she is ready to return to work and has a doctor’s return-to-work note, but the employer is concerned the employee will not be able to safely perform his or her duties, may an employer refuse to allow the employee to return to work?

A7. Yes, if the employee would create an unsafe or unhealthful work environment or is a direct threat to him- or herself or others. Often, having a one-on-one conversation with the employee will reveal the reason for his or her desire to return to work (e.g., he or she has exhausted all paid leave, has an important project to finish, etc.) and perhaps result in a shared conclusion that he or she is or is not ready to return to work.

Vacation, Paid Time Off, and Paid Sick Leave

Q8. May an employer require an employee with COVID-19 to use his or her vacation time and/or other paid time off for the absence?

A8. Yes, subject to (a) the provisions of the employer’s current vacation time, paid time off (PTO), and other applicable policies, and (b) any state laws (e.g., implied contract of employment) restricting an employer’s ability to interpret or amend those policies.

Q9. May an employer require an employee who is not exhibiting COVID-19 symptoms but who has been in contact with an individual with COVID-19 or is in a potential incubation period (e.g., after returning from travel to an area of risk, as noted by the CDC) to use his or her vacation time and/or other PTO for the absence?

A9. Yes, subject to (a) the provisions of an employer’s current vacation time, PTO, and other applicable policies, and (b) any state laws (e.g., implied contract of employment) restricting an employer’s ability to interpret or amend those policies. Employers should carefully consider the employee relations implications of such a policy.

Q10. May an employer advance any vacation time and/or paid time off to employees to cover COVID-19 absences?

A10. Yes, which some employers are already doing. Employers that do so should consider drafting policies and agreements so that employees are required to repay advanced time off first from newly earned vacation time/PTO. Where not otherwise prohibited by state law, employers may be able to deduct any advanced time off from a departing employee’s vacation time/PTO payout or final paychecks.

Q11. May an employer set up a plan to excuse or otherwise not count absences related to COVID-19, whether for an actual illness or a quarantine period?

A11. Yes. Employers should determine any deviation from their normal policies, including how and when it will apply. Employers should ensure that any such policy is consistently applied.

Q12. May an employer opt to pay an asymptomatic employee who has been quarantined, even if the employer’s policy does not provide for paid leave?

A12. Yes. Employers should clearly establish any deviation from their normal pay policies and be specific as to how and when it will apply. Employers should ensure that any such policy is consistently applied. Further, employers also should determine if there is any overlap with state or local paid sick leave laws (see question 13).

Q13. Are COVID-19 absences covered by applicable state or local paid sick leave laws?

A13. Possibly, depending on (a) the jurisdiction and (b) the reason for the absence (e.g., the employee’s own illness, the employee was required to stay at home by public health authorities, the employee was required by the company to stay at home, or the employee stayed at home to care for the COVID-19 condition of a family member). Some paid sick leave laws may not apply to situations in which an employee (or a covered family member) is not actually exhibiting symptoms, while some states have specific provisions providing sick leave coverage when an employee is not actively sick but is directed to stay home by public health officials. It is unclear in many jurisdictions whether a paid sick leave law would apply if an employee does not have symptoms and is not directed by public health officials to stay at home, but the company directs him or her to do so.

Wage and Hour

Q14. May an employer require a nonexempt employee to use vacation time/PTO in less than full-day increments?

A14. Yes, as long as the policy and applicable state and local laws allow it.

Q15. May an employer require an exempt employee to use vacation time/PTO in less than full-day increments?

A15. Yes, as long as the policy and applicable state and local laws allow it, and the exempt employee’s overall salary/pay is not docked. However, pay can be taken from the PTO category in less than full-day increments.

Q16. May an employer dock an employee’s pay for time spent away from work due to COVID-19 if he or she has exhausted all vacation time/sick leave/PTO (including under any applicable paid sick leave laws)?

A16. For nonexempt employees, yes, employers may dock pay. For exempt employees, it depends on whether the absence is initiated by the employer or by the employee.

  • If the absence is initiated by the employee (including for his or her own illness or that of someone for whom he or she is caring), the employer may dock the exempt employee for full-day absences only.

  • If the absence is initiated by the employer (e.g., the employee must stay home for a mandatory quarantine period, even though he or she is asymptomatic and willing to come to work), the employer may dock the exempt employee only for full seven-day absences that coincide with the employer’s pay week.

Employers should consider the impact docking exempt employees’ pay may have on whether employees will continue to voluntarily stay at home when they feel sick, disclose that they feel sick, or disclose that they have traveled to a high-risk area, if there is a perception that they will suffer a financial consequence for doing so.

Attendance

Q17. May an employer count an employee’s time away from work due to COVID-19 against the employee in terms of the employer’s attendance policy?

A17. Yes, as long as the illness is not an FMLA-qualifying serious health condition (see the section covering FMLA-related questions below), in which case the employer should comply with the FMLA’s prohibition on counting these types of absences against an employee. Note that there may be times when complications arising from COVID-19 (or COVID-19’s effects on a preexisting medical condition) could be considered a disability, in which case the ADA may be implicated and a reasonable accommodation may be required, such as a modification to the employee’s attendance requirements. Here again, though, employers may wish to consider the implications of doing something that might be perceived as creating a financial penalty for staying away from work while sick (see questions 10, 11, and 12).

Q18. Should an employer discipline employees who are away from work because of COVID-19 for violating its attendance policy?

A18. One of the main reasons that employers may want to refrain from disciplining employees under these circumstances is the large number of employees whose attendance records will be adversely impacted. Having a large percentage of the workforce subject to termination because of attendance issues would be extremely disruptive to an employer’s continued business operations and would have a negative effect on employee relations. Additionally, applying discipline for taking time away from work because of COVID-19 might encourage employees who already have attendance issues not to reveal their COVID-19 symptoms rather than risk termination.

Q19. Does an employer’s waiver of strict compliance with its attendance policy regarding COVID-19 set a negative precedent, opening the door for employees with other serious illnesses to argue that their absences should not be counted against them in terms of the attendance policy?

A19. No, as long as that waiver is consistently applied to all COVID-19 absences, and to COVID-19 absences only. If employers make clear to employees that the waiver of strict compliance with the attendance policy is for COVID-19 only, employers should be able to distinguish between an absence related to COVID-19 and any other type of absence, based on the serious, widespread, non-recurrent nature of the current COVID-19 outbreak.

FMLA

Q20. Is COVID-19 an FMLA-covered serious health condition?

A20. Not necessarily. If COVID-19 does not satisfy the regulatory definition of a “serious health condition,” employers should not count the absence against the employee’s 12 weeks of FMLA leave. An example of a situation in which the leave may not be FMLA-qualifying is when an employee is required by the employer to stay home but is asymptomatic.  Employers should evaluate any applicable state mini-FMLAs to ensure they do not contain different or additional requirements or provisions.

Q21. What are the requirements for an FMLA-covered serious health condition?

A21. The regulatory definition sections that most likely apply in the COVID-19 context (assuming a mild case) are the following:

  • More than three calendar (not work) days of incapacity plus two treatments by a healthcare provider (the first of which must occur within seven days of the first day of incapacity and the second within 30 days of the first day of incapacity)

  • More than three calendar (not work) days of incapacity plus one treatment by a healthcare provider (which must occur within seven days of the first incapacity) plus continuing treatment (including prescription medication) under the supervision of a healthcare provider

Because some individuals will not seek health care treatment unless they need urgent medical attention or they are at a higher risk for complications from COVID-19, some cases of COVID-19 will not qualify as a serious health condition simply because the employees will not have visited a doctor/healthcare provider for any treatment.

ADA

Q22. Is COVID-19 considered a “disability”?

A22. Normally, no. Even under the amended (2009) ADA, the duration of COVID-19 will likely not be long enough to qualify as an ADA disability. Complications from COVID-19 (e.g., pneumonia) may qualify as an ADA disability, triggering certain obligations for the employer (e.g., reasonable accommodation, etc.). Employers should evaluate any applicable state mini-ADAs to ensure they do not contain different or additional requirements or provisions.

Q23. If an employer treats an employee as if he or she possibly has COVID-19 (e.g., by forcing him or her to stay home until an incubation period has passed), is that a valid basis for a “regarded as disabled” claim?

A23. Likely not. The amended ADA makes clear that “regarded as” claims may not be brought
for conditions that are “transitory and minor.” If COVID-19 in a specific case is not transitory and minor, then COVID-19 would become a different condition or complication, which might be considered an ADA disability. That different condition or complication could, of course, give rise to a “regarded as disabled” claim.

Confidentiality

Q24. Is an employer’s knowledge that an employee has COVID-19 subject to HIPAA’s privacy restrictions?

A24. Not usually, unless the employer acquired the information in its role as the administrator of the health insurance plan. Because most employers will learn of a COVID-19 diagnosis from the employee or his or her family, the Health Insurance Portability and Accountability Act (HIPAA) usually will not be implicated.

Q25. May an employer disclose an employee’s actual or probable COVID-19 diagnosis to others?

A25. Yes, but, according to the CDC, only to employees and only to the extent necessary to adequately inform them of their potential workplace exposure or as otherwise directed by the CDC or another public health authority. Otherwise, the CDC has said employers should follow the ADA’s confidentiality requirements, which significantly limit the disclosure of information. Employers can communicate to non-exposed employees that there has been a COVID-19 diagnosis, without sharing additional identifying information.

Employers also should evaluate any applicable state privacy law or state “mini-ADA” laws to ensure they do not contain different or additional requirements or provisions.

NLRA

Q26. May an employee refuse to come to work due to a fear of becoming infected with COVID-19?

A26. Potentially. Under the NLRA, nonsupervisory employees in unionized and non-unionized settings may have the right to refuse to work in conditions they believe to be unsafe. (This is considered an outgrowth of concerted activity for the mutual aid and protection of coworkers.) To refuse to work, employees should have a “reasonable, good-faith belief” that working under certain conditions would not be safe. Notably, the NLRA protects employees if they are “honestly mistaken.” In addition, in workplaces where employees are represented by a union, employers are required to adhere to any applicable provisions in collective bargaining agreements and may further be obligated to bargain over changes in the workplace that may be implemented as a result of COVID-19 (see question 27).

Workplace Safety

Q27. May an employee refuse to come to work due to a fear of becoming infected with COVID-19?

A27. Potentially. Employees may be protected from retaliation under the Occupational Safety and Health Act (OSH Act) in certain circumstances when they refuse to perform work as directed. Specifically, an employee may refuse an assignment that involves “a risk of death or serious physical harm” if the following conditions apply : (1) the employee has “asked the employer to eliminate the danger and the employer failed to do so”; (2) the employee “refused to work in ‘good faith’” (a genuine belief that “an imminent danger exists”); (3) “[a] reasonable person would agree that there is real danger of death or serious injury”; and (4) “[t]here isn’t enough time, due to the urgency of the hazard, to get it corrected the hazard through regular enforcement channels, such as requesting an OSHA inspection.” While each situation is different, and a generalized fear of contracting COVID-19 is not likely to justify a work refusal in most cases, employers may want to conduct a thorough review of the facts before any disciplinary action is taken against an employee who refuses to perform his or her job for fear of exposure to COVID-19 (see question 26).

Q28. What are the requirements when respirators are provided by employers for voluntary use? What if the employer mandates respirator use?

A28. For most categories of workers, the CDC advises that it “does not recommend that people who are well wear a facemask to protect themselves from respiratory illnesses, including COVID-19.” However, providing facemasks may be appropriate or even required for certain categories of workers, such as health workers, as well as required by applicable Occupational Safety and Health Administration (OSHA) standards. If an employer provides respirators, certain OSHA requirements will apply.

If an employer provides respirators (including N95 masks) and allows employees who may be worried about exposure to use them voluntarily, then the employer must provide a copy of Appendix D of OSHA’s Respiratory Protection Standard to the employees. The employer must also verify that the masks do not pose an additional hazard to employees. For example, the use of dirty masks may inhibit breathing, or the masks may not be appropriate if employees are exposed to other substances, such as airborne chemicals.

If the employer requires respirators (including dust masks or N95 masks), then OSHA’s standard requires a written respiratory protection program that includes training, fit-testing, and other provisions. For example, an employer that requires employees who may have been exposed to COVID-19 or who may have been diagnosed with COVID-19 to wear dust masks must have a written respiratory protection program (see 29 C.F.R. § 1910.134).

OSHA does not classify surgical masks as “respirators,” and employers that require or permit employees to wear them do not have any compliance obligations under OSHA’s Respiratory Protection Standard. Surgical masks are generally used as a physical barrier to protect against large droplets or splashes of blood or bodily fluids, and will generally not prevent a healthy person from inhaling droplet contaminants like COVID-19. Surgical masks for people infected with COVID-19 may limit the spread of the illness to others.

Q29. May an employer refuse an employee’s request to wear self-provided respiratory protection and/or gloves?

A29. Yes, if such measures are not otherwise required by the CDC’s guidance or OSHA’s standards, or if the employer determines that the employee’s use of respiratory protection or gloves in and of themselves presents a hazard to the employee (e.g., if they interfere with the employee’s ability to work safely).

The CDC and U.S. Surgeon General state that respirators are not required and are not protective for the general public working in non-healthcare settings. Given that, employers in non-healthcare settings with no infected employees have no need to require respirators. This means that OSHA’s Respiratory Protection Standard (29 C.F.R. § 1910.134) does not apply, as respirators are not being used to protect employees. Instead, employees are asking to wear respirators because they are concerned about a public health issue.

Employers are permitted to bar employees from wearing self-provided respirators, because there is not a work-related hazard in this scenario. If an employer decides to allow employees to wear self-provided respirators, the employer has no obligations under the Respiratory Protection Standard because it does not apply. As a practical matter, employers may want to consider communicating the following to employees who ask to wear respirators:

(1) The employer has assessed the situation and determined that respirators are not required to protect employees. Further, both the CDC and the Surgeon General have confirmed that masks are not necessary.

(2) If employees wish to wear self-provided respirators, the employer will allow them to do so, but it recommends that they consult with their personal physicians to make sure they are physically able to use respirators safely.

Q30. When is an employer required to provide respiratory protection, and what are the OSHA compliance implications?

A30. OSHA does not have a specific standard or regulation that requires employers to take any particular actions with regard to COVID-19. Employers are, however, required to comply with Section 5(a)(1) of the OSH Act (the general duty clause), which requires employers to maintain a “workplace that is free from recognized hazards.” In addition, OSHA’s Respiratory Protection Standard requires employers to provide appropriate respirators to control exposure to “occupational diseases caused by breathing air contaminated with” [harmful” substances] (29 C.F.R. § 1910.134(a)(1)).

OSHA has issued guidance for employers regarding COVID-19, which divides employers into risk categories. Most job sectors have a low risk of exposure. However, some workers may have exposure to infectious people, including travelers who contracted COVID-19 abroad. Workers with an increased risk of exposure include those involved in “[h]ealthcare (including pre-hospital and medical transport workers, healthcare providers, clinical laboratory personnel, and support staff)”; “[d]eathcare (including coroners, medical examiners, and funeral directors)”; “[a]irline operations”; “[w]aste management”; and “[t]ravel to areas, including parts of China, where the virus is spreading.”

OSHA provides guidance for workers and employers of workers unlikely to have occupational exposure to COVID-19 and to those in the specific worker groups of healthcare, deathcare, laboratories, airlines, border protection, solid waste and waste management, and business travelers. The employer’s compliance obligations depend in large part on the risk category of the facility.

General guidance for all U.S. workers and employers:

For all workers, regardless of specific exposure risks, it is always a good practice to:

  • Frequently wash your hands with soap and water for at least 20 seconds. When soap and water are unavailable, use an alcohol-based rub with at least 60% alcohol. Always wash hands that are visibly soiled.

  • Avoid touching your eyes, nose, or mouth with unwashed hands.

  • Avoid close contact with people who are sick.

Interim guidance for most U.S. workers and employers of workers unlikely to have occupational exposures to COVID-19:

OSHA recommends that “employers should assess the hazards to which their workers may be exposed; evaluate the risk of exposure; and select, implement, and ensure workers use controls to prevent exposure. Control measures may include a combination of engineering and administrative controls, safe work practices, and PPE.”

“In all workplaces where exposure to the COVID-19 may occur, prompt identification and isolation of potentially infectious individuals is considered a critical first step in protecting workers, visitors, and others at the worksite.”

Q31. Are there any OSHA requirements that must be followed when an employee is diagnosed with COVID-19?

A31. Yes, in some cases. First, employers must ensure that the infected employee stays away from the workplace. OSHA may cite an employer under the general duty clause if the employer allows or directs a known infected employee to come to work and expose other employees to the risk of infection.

If an employee in the workplace is suspected of having COVID-19 (i.e., someone displaying symptoms of COVID-19), that employee must be quarantined immediately. For example, employers may want to move such an employee to an isolation room and close the doors or, if an isolation room is not available, to a location away from workers, customers, and other visitors. Employers may want to take steps “to limit spread of the employee’s infectious respiratory secretions,” including providing the employee with a surgical mask and asking him or her to wear it, if he or she can tolerate doing so. Employers may also want to restrict contact with the potentially infectious employee and contact the CDC and/or local health authorities for further guidance.

Second, employers are required under OSHA’s recordkeeping regulation (29 C.F.R. Part 1904) to record illnesses that are “work related” and meet one of the recording criteria, which include days away from work, job transfer, and medical treatment. A work-related illness that meets these criteria must be recorded on the employer’s OSHA Form 300, and a Form 301 must also be completed. “An illness is work-related if it is more likely than not that a factor or exposure in the workplace caused or contributed to the illness.” An employee who contracts COVID-19 from a family member or while on a personal trip has not experienced a work-related illness. If, however, that employee infects a coworker, the coworker has suffered a work-related illness if one of the recording criteria (e.g., medical treatment or days away from work) is met.

OSHA’s recordkeeping regulation exempts the “common cold and flu” from the recordkeeping requirements. COVID-19, however, is not a common cold or flu. OSHA’s current guidance states that “COVID-19 is a recordable illness when a worker is infected on the job.”

Third, employers may be required to report an employee’s coronavirus infection to OSHA. If the infection is work related (e.g., the infection was contracted on the job or during business travel), and the infected employee is hospitalized as an in-patient, the hospitalization must be reported to OSHA within 24 hours of the incident. If the infected employee is not hospitalized as an in-patient but dies from the infection, the death must be reported to OSHA if it occurred within 30 days of the work-related incident.

Some state plans have different requirements. In California, for example, if an employee contracts the COVID-19 on the job or during business travel, it would be reportable to Cal/OSHA if the employee suffers a “serious injury or illness” as a result of the infection. A COVID-19 infection would be considered a “serious injury or illness” in California if it “requires inpatient hospitalization for more than 24 hours for other than medical observation, or in which a part of the body is lost or a serious degree of permanent disfigurement occurs.”

Workers’ Compensation

Q32. Could COVID-19 be covered by workers’ compensation?

A32. Workers’ compensation claims and procedures are based on state laws, which vary from state to state. Therefore, employers may want to consult with workers’ compensation counsel on this question. Generally, however, state workers’ compensation laws require an employee to prove that he or she contracted the illness in the course and scope of employment and that the illness is caused by a hazard recognized as peculiar to a particular employment. Some states specifically exclude from coverage contagious diseases resulting from exposure to fellow employees or from a hazard to which the ill employee would have been equally exposed outside of his or her employment.

© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume X, Number 69

TRENDING LEGAL ANALYSIS


About this Author

Melissa Bailey, Ogletree Deakins Law Firm, Occupational Safety Litigation Attorney
Shareholder

Melissa Bailey focuses her practice on occupational safety and health issues, and also serves on the Firm's Board of Directors. She litigates OSHA cases before federal and state agencies and courts, and also represents employers during government inspections and investigations. Her practice also includes providing compliance advice and conducting privileged audits on complex workplace safety issues. Melissa represents employers in a wide range of industries, including electric utilities, chemical manufacturing/refining, retail, food processing, construction, and drug...

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Michael Oliver Eckard Employment Attorney Ogletree Deakins
Shareholder

Michael Oliver Eckard is a shareholder in the Charleston and Atlanta offices and has been an employment lawyer at Ogletree his entire legal career. Michael represents companies in labor, employment, restrictive covenant, and wage and hour matters in the health care, manufacturing, chemicals, hospitality, transportation and logistics, and retail industries, among others. He regularly advises companies on human resources and labor policy issues. Michael represents his clients in many types of employment litigation matters, including wrongful termination claims, sexual harassment claims, employment discrimination claims, employment contracts, wage and hour claims, trade secrets, and non-compete agreements. He also represents management in union organizing campaigns, collective bargaining negotiations, arbitrations, and unfair labor practice and representation proceedings.

Michael’s nationwide litigation and advice practice focuses on protecting corporate clients against claims of discrimination, harassment, and retaliation; claims involving restrictive covenants, unfair competition, and trade secret claims; federal and state wage and hour laws; and claims of defamation, breach of contract, and intentional torts. He has litigated labor and employment-related matters in federal and state courts throughout the United States, including appeals before the Georgia Court of Appeals, Georgia Supreme Court, and the Eleventh Circuit Court of Appeals. His litigation matters include single-plaintiff, multiple-plaintiff, and collective action cases, as well as labor and employment arbitrations and administrative proceedings.

Michael serves as a trusted advisor to his clients, regularly providing counsel to corporate executive, legal, and human resources leaders on matters such as risk management; labor relations; workforce planning (including workforce growth and reductions in force); labor and employment matters pertaining to corporate mergers, divestitures, and other transactions; employee recruiting and hiring practices; employee discipline and termination; wage and hour law compliance; and strategies for preventing and investigating harassment and discrimination claims.

Prior to his legal career, Michael served in the U.S. Army, specializing in Military Intelligence. Michael served in multiple duty stations, including operational tours in Kuwait. Michael is also a licensed pilot and enjoys flying airplanes for recreation.

Michael is a former law clerk for the U.S. Department of Justice – Civil Division, Washington D.C. Michael is also the 2005 recipient of the University of South Carolina Law School’s coveted Knox L. Haynsworth Labor Law Scholarship Award.

843-720-0872
Katherine Dudley Helms, Ogletree Deakins Law Firm, Health and Employment Attorney
Office Managing Shareholder

Ms. Helms has extensive experience representing clients in employment matters as varied as the practice offers.  She has represented companies and individuals in both the private and public sectors ranging from production line supervisors to company executives.  Having represented clients in forums from mediation to the United State Supreme Court allows Ms. Helms the perspective and knowledge to work closely with her clients to offer creative solutions to age old problems.  Ms. Helms frequently guides clients to take what is learned through administrative complaints and/...

803-252-1300
John Martin, Ogletree Deakins Law Firm, Employment Law and Energy Litigation Attorney
Shareholder

John Martin focuses his practice on occupational safety and health compliance and litigation. He serves as national OSHA counsel for three publicly-traded companies, and has over 15 years of experience in defending employers in federal court and before the Occupational Safety and Health Review Commission (OSHRC). John has defended clients in 18 states and counsels clients on developing safety programs to eliminate and reduce workplace injuries.

202-263-0267
Stephen Woods, Ogletree Deakins Law Firm, Greenville, Labor and Employment Litigation Attorney
Shareholder

Stephen Woods represents and counsels companies on a wide range of labor and employment law issues—though a significant focus of his practice is on background checks (counseling and litigation) and RIFs (including the ADEA/OWBPA, WARN, and state mini-WARNs). He assists national, regional, and local clients on preventive analysis and advice, class and single-plaintiff employment litigation, and EEOC and state agency charges. He is the chair of both the firm's O-D Comply compliance solutions group and the Background Checks Practice Group and the shareholder-author of the...

864-271-1300