How to Navigate the Coronavirus: A Reference Guide for Employers
What is COVID-19, the virus commonly referred to as “coronavirus”?
- COVID-19 is an infectious disease discovered in Wuhan, China, in December 2019. See https://www.who.int/news-room/q-a-detail/q-a-coronaviruses.
- COVID-19 affects the victims’ lungs and airways. The most common symptoms include fever, tiredness and dry cough. Other symptoms include aches and pains, nasal congestion, runny nose, sore throat or diarrhea. There is currently no vaccine for COVID-19.
- As of March 13, 2020, there have been 1,629 total reported cases in the United States and 41 deaths. Forty-six states and the District of Columbia have reported cases of COVID-19. See https://www.cdc.gov/coronavirus/2019-ncov/cases-in-us.html.
What does “pandemic” mean?
How do you protect your employees during a pandemic?
- The U.S. Centers for Disease Control and Prevention (CDC) and the Occupational Safety and Health Administration (OSHA) have provided guidance for businesses and employers to prepare for and respond to the coronavirus, as summarized below:
- Communicate with your employees.
- Advise employees you are monitoring CDC and WHO alerts and will continue to provide recommendations.
- Establish a point of contact to address employees’ questions or concerns surrounding the coronavirus.
- Maintain open communication and provide reassurance that your employees’ health and safety are your top priority.
- Encourage sick employees to stay home.
- Encourage employees who have acute respiratory symptoms to stay home until they are free of fever, signs of a fever and any other related symptoms for at least 24 hours.
- If an employee is tested positive for coronavirus, the employee should be required to advise the HR department immediately and self-quarantine. This information must be kept strictly confidential in accordance with all privacy obligations.
- If an employee has been directly exposed to another person who has either (1) tested positive for coronavirus or (2) is currently being tested for coronavirus, the employee should be required to immediately advise HR, and a determination will be made regarding a 14-day self-quarantine. This information must be kept strictly confidential in accordance with all privacy obligations.
- Ensure sick leave policies are flexible and consistent with public health guidance and that employees are aware of these policies.
- Maintain flexible policies that permit employees to stay home to care for a sick family member. Employers should be aware that more employees may need to stay at home to care for sick children or other sick family members than is usual.
- Promote basic hygiene.
- Provide hand sanitizer throughout the office.
- Encourage employees to wash their hands frequently with soap and water for 20 seconds or with a hand sanitizer with at least 60% alcohol if soap and water are not available.
- Encourage respiratory etiquette by providing employees with tissues to use for coughing and sneezing and trash receptacles for disposal.
- Routinely disinfect frequently touched common surfaces (e.g., telephones, computer equipment, breakroom tables).
- Avoid using other employees’ phones, desks, offices, or other work tools and equipment.
- Avoid shaking hands and minimize group meetings by using email and phone. If meetings are unavoidable, avoid close contact (within six feet) with others and ensure that the meeting room is properly ventilated.
- Consider distributing the CDC poster that instructs individuals to cover coughs and sneezes; avoid touching their eyes, nose and mouth; wash hands frequently for 20 seconds with soap; and clean and disinfect frequently touched surfaces.
- Encourage social distancing.
- Avoid shaking hands.
- Allow employees to work remotely if available. If you do not have a remote policy, consider establishing a coronavirus telework policy.
- Minimize group meetings by using email and/or phone.
- If a meeting is unavoidable, avoid close contact with others.
- Discourage nonessential travel
- Restrict international business travel unless travel is essential.
- Encourage employees to exercise caution when traveling domestically.
- Employees’ personal travel should not be restricted. However, employers should advise employees to review the CDC’s website for travel restrictions before traveling.
- For more details on keeping employees safe, please follow these links:
What should you know about the ADA, the Rehabilitation Act and the coronavirus?
- The ADA and Rehabilitation Act continue to apply, but they do not prevent you from following the guidelines of the CDC referenced above.
- The U.S. Equal Employment Opportunity Commission (EEOC) has cited its 2009 pandemic H1N1 flu guidance to help employers navigate the impact of coronavirus in the workplace. See https://www.eeoc.gov/facts/pandemic_flu.html.
- In this guidance, the EEOC states that advising employees 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 ADA if the illness is serious enough to pose a direct threat to the employee or coworkers.
- The EEOC further advises that during a pandemic, such as the coronavirus outbreak, employers may ask their employees if they are experiencing flu-like symptoms such as fever, chills, cough or sore throat.
- If the CDC or state or local public health officials recommend that people who visit specified locations remain at home for several days until it is clear they do not have coronavirus symptoms, the EEOC advises that employers may ask whether employees are returning from these locations.
- The EEOC advises that when employees return to work after an illness from a pandemic, the ADA allows employers to require doctors' notes certifying the employees’ fitness to return to work.
- The EEOC advises that employers may encourage employees to work remotely.
- The EEOC further advises that promoting basic hygiene and encouraging respiratory etiquette does not violate the ADA.
Are you required to report an infected employee to OSHA?
- If an infected employee infects another employee, OSHA requires an employer to record it as “work-related” if one of the recording criteria is met (i.e., medical treatment or days away from work).
- If an employee is infected, employers must ensure the employee stays home, as OSHA may cite the employer under the general duty clause for directing/allowing the employee to come to work.
What is a “state of emergency”?
- A “state of emergency” can be declared state by state for any natural disaster (e.g., hurricane, earthquake), but only 34 states have specific powers to declare public health emergencies. Usually, the declaration is made by the state’s governor via an executive order.
- The purpose of a state of emergency is to allow state officials to side-step some state and federal laws in order to protect communities more efficiently given the emergency at issue. A state of emergency also can allow for access to funding that would otherwise be off limits.
- More than half of the U.S. states have declared states of emergency. On March 13, 2020, President Trump declared a national state of emergency.
- Under a state of emergency, quarantines and school closing decisions are made at the local or state level, not the national level.
What issues should you consider during a declared state of emergency?
- A state of emergency does not necessitate administrative policies for individual private businesses addressing issues such as employees’ inability to travel due to a state of emergency or its related effects. Employees remain responsible for arranging alternative transportation if public routes are unavailable. Employers may make accommodations as desired, such as adjusting its hours of operation or shift times.
- This is likewise the case for state employees, as demonstrated by Ohio’s recent Executive Order due to the COVID-19 pandemic.
- The U.S. Department of Labor considers travel issues caused by natural disasters or other emergencies as “personal reasons” for not getting to work. This requires employees to make alternative arrangements to get to work or suffer the consequences (use paid-leave time or forego pay), unless the employer approves telecommuting.
- Telecommuting directives should be clear and specific:
- Give a duration for telecommuting, establish expected hours of work if any are different, and discuss implications on pending projects, deadlines, etc.
- Make sure employees understand the difference between taking a sick day and telecommuting.
- Be prepared to discuss issues that come up, including but not limited to having an IT point person or department to handle technical difficulties should they arise.
- Any employer that requires its employees to come to work during the COVID-19 state of emergency could be liable if someone contracts COVID-19 due to contact with another infected person in the workplace. Thus, encouraging employees to telecommute is preferred, if possible.
- Preexisting sick leave laws, which vary by state, will remain in effect during a state of emergency. For example, California law requires employers to compensate employees for at least three paid sick days, while New York law requires pay for five paid sick days.
- Several states are responding to the COVID-19 pandemic with additional paid leave requirements. The Colorado Department of Labor and Employment issued Colorado Health Emergency Leave with Pay (Colorado HELP) Rules requiring certain types of employers to provide employees with flu-like symptoms who are being tested for COVID-19 up to four paid sick leave days. The paid leave entitlement ends when employees receive a negative COVID-19 test result. If employers already offer a sufficient amount of paid leave, they need not provide additional paid sick leave unless employees have exhausted such leave and then experience a qualifying event. Employers should keep an eye out for similar state responses published on state-affiliated webpages.
- Similarly, companies such as Amazon, DoorDash and Lyft have announced new two-week paid leave benefit packages for employees diagnosed with or quarantined because of COVID-19. While not required by law or during a state of emergency per se, employers should consider providing such benefits to their employees if economically feasible.
- During a state of emergency, there may be an increase in school, daycare or similar facility closures. Employers should be mindful that many sick leave laws (and employment policies) allow employees to use sick time when a child’s school or place of care is closed due to a public health emergency.
- Many sick leave laws (such as California’s Labor Code section 233) protect the use of such leave to care for employees’ family members as well. Thus, employers should accommodate employees who suspect family members may have contracted COVID-19 even if the employees show no symptoms themselves.
What additional concerns may arise if a mandatory evacuation is ordered?
- If the state of emergency reaches the point of necessitating a mandatory evacuation, the employer must yield to same; otherwise, it would be a violation of a direct governmental order.
- An hourly employee is typically going to be unable to work if there is an evacuation. There is no added burden on an employer to pay for time not worked during an evacuation, but paid leave should be permitted if it is part of an existing employment agreement. Nonexempt employees must be paid for all work performed and receive applicable overtime premiums, even if an employer didn't authorize the work, remote or otherwise. Employers should set clear expectations of work or lack of work during times of an evacuation.
- A salaried employee will remain able to work during an evacuation so long as some remote work can be completed during the course of the workweek. An exempt employee who does not work for an entire week, even remotely, can have pay deducted for that week or be instructed to use paid leave time; however, this should be avoided if possible so as to not disrupt the employee’s employment status and resulting work requirements. Instead, employers should permit some work to continue remotely for salaried employees so as to cause as little disruption to their pay systems as possible. If an exempt employee does not perform any remote work during a full day, the employer still can instruct the employee that paid leave must be used for the day not worked.
© 2021 Wilson ElserNational Law Review, Volume X, Number 77