The news has been dominated by reports of the increasing global spread of the COVID-19 coronavirus. With the likelihood of its further proliferation in the coming weeks and months, employers need to be prepared to face myriad issues related to COVID-19. This alert will provide some general guidance to employers concerning various frequently asked questions based on information available at this time. It may change as the situation evolves and vary depending on individual circumstances.
What is COVID-19, what are its symptoms and how is it spread?
COVID-19 is a new type of coronavirus not previously seen in humans. Coronaviruses are a large family of viruses, several of which are known to cause the common cold and more severe respiratory illnesses.
Its symptoms typically include a fever, cough and shortness of breath and can range from mild to severe with one in six individuals becoming seriously ill. Individuals who may be more susceptible to complications include older adults, those with pre-existing medical conditions and pregnant women.
COVID-19 is most commonly spread through coughing or sneezing, close contact with infected individuals or touching an infected surface. Symptoms may appear in as few as two days or as long as 14 days after exposure.
What are some precautions your company should take to prevent the spread of COVID-19?
The Centers for Disease Control and Prevention (CDC) has published “Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19),” which may be accessed here. The World Health Organization (WHO) has published “Getting your workplace ready for COVID-19,” which provides similar guidance and may be accessed here. State and local health departments may also have published guidance available online for the general public and specifically for employers. All of these resources should be consulted regularly for authoritative guidance as the situation evolves.
For example, the strategies that the CDC currently recommends employers use to prevent the spread of infections include the following:
- Actively encouraging employees who are sick to stay home;
- Separating sick employees from others;
- Emphasizing staying home when sick, hand hygiene and respiratory etiquette by all employees (for example, through posters available through the CDC and by placing hand sanitizer throughout the workplace);
- Performing routine environmental cleaning (including routinely cleaning all frequently touched surfaces and providing disposable wipes so that employees can wipe down frequently touched surfaces, such as doorknobs and keyboards, before each use);
- Advising employees before traveling to take certain steps; and
- Additional measures in response to currently occurring sporadic importations of COVID-19
What are some steps your company should take to ensure business continuity in the event of a local outbreak?
It is important for employers to have a pandemic emergency plan in place that is flexible and comprehensive. While the specifics of the plan will vary depending on many factors, including but not limited to the industry and the size and location of the employer, the CDC published guidance referenced above includes a separate list of considerations. Important considerations may include planning for employee absences by cross-training employees, educating employees about the virus and prevention steps, stress testing the employer’s computer systems to make sure they are equipped to handle a large number of employees working remotely, and creating a plan for recording hours worked remotely and monitoring remote work to ensure accurate time recording for non-exempt employees.
Must employers pay employees directed not to report to work because of COVID-19 concerns?
This depends on several factors, including whether the employee is a non-exempt or exempt employee under the Fair Labor Standards Act (FLSA). Generally, if an employee is non-exempt, the employer need only pay them for actual hours worked. If an employee is an exempt employee and works at all during a work week, the employee must be paid his or her regular salary for the entire week.
Employers should also consider whether they would be required to keep paying employees pursuant to any employee leave policy, state or local paid sick leave law, short term disability plan or collective bargaining agreement. Additionally, employers should be mindful of the CDC’s guidance, which encourages employers to establish workplace and leave policies that are flexible and non-punitive in nature, and should consider employee and public relations factors when determining whether to continue paying their employees.
Will the Family and Medical Leave Act (FMLA) apply to COVID-19 cases?
Employers covered by the FMLA will need to determine whether employees who take time off from work due to COVID-19 qualify for FMLA leave. This will involve a determination as to whether the time off is either to care for their own “serious health condition” or the “serious health condition” of a covered family member.
Although the Department of Labor has not issued any guidance to date on whether COVID-19 qualifies as a “serious health condition” under the FMLA, it is expected that COVID-19 will qualify as a serious health condition based on declarations of public health emergencies by federal and state authorities, as well as on associated treatments, complications and other factors.
Employers should foster open dialogues with employees in order to facilitate FMLA determinations and required leaves. Generally, an employee would not qualify for FMLA leave if the leave is requested in order for the employee to stay at home to avoid getting sick or avoid a covered family member getting sick (e.g. in the event that schools are closed and the employee’s child is otherwise healthy). However, employers should work with counsel to assess individual circumstances and should also consider whether the employee would be entitled to leave under a similar state and local leave law which may afford the employee greater protections.
How does the American with Disabilities Act (ADA) apply to situations involving COVID-19?
In 2009, the EEOC issued guidance concerning “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act,” which may be accessed here. The guidance provides some helpful parameters, although it is not specific to COVID-19 and not required to be followed by courts.
According to the EEOC’s guidance, the ADA is relevant to pandemic preparation in at least three significant ways: (1) its regulation of medical examinations and disability related inquiries for all employees and applicants; (2) its prohibition against excluding individuals with disabilities from the workplace for health and safety reasons, unless they pose a direct threat, meaning one that would present a significant risk of substantial harm even with a reasonable accommodation; and (3) its requirement to provide reasonable accommodations for individuals with disabilities during a pandemic unless it would create an undue hardship.
For example, with regard to its regulation of medical examinations, the guidance provides that taking employees’ temperatures prior to a pandemic would be illegal, but would be acceptable if a pandemic had spread locally. The guidance further makes it clear that during a pandemic, which has not yet been declared, employers should rely on the latest CDC and state and local public heath assessments to determine whether a “direct threat” is posed.
Whether COVID-19 would be considered a disability remains an open question and may require a case by case analysis. Even if COVID-19 is not a disability, employers should nevertheless tread cautiously as individuals who are regarded as disabled, even if they are not, have rights under the ADA.
It is recommended that employers familiarize themselves with the EEOC’s guidance and work with their attorneys regarding how the ADA may be implicated with regard to their specific situations.
What employee privacy restrictions should employers take into consideration regarding disclosures concerning COVID-19?
The Office of Civil Rights of the United States Department of Health and Human Services published a February 2020 bulletin addressing the ways in which HIPAA covered entities and business associates may share COVID-19 patient information under the HIPAA Privacy Rule. A copy of the bulletin may be accessed here. It expressly states that the protections of the HIPAA Privacy Rule are not set aside during an emergency.
Employers that are not HIPAA covered entities should still be mindful that employees have a reasonable expectation of privacy regarding their medical information, and other laws restrict the disclosure of such information. These employers should continue to maintain the confidentiality of employee health records in accordance with usual business practices.
Employers must keep the identity of any employee with a confirmed or suspected case of COVID-19 confidential, including information relating to whether an employee is working from home due to a COVID-19 self-monitoring period or quarantine. Employers should train employees and put procedural safeguards in place to prevent disclosure of this information.
However, other employees have a right to know about health risks in their workplace. Therefore, employers must inform other employees of their possible exposure to COVID-19. It is best practice to contact the local health department immediately upon learning an employee has been diagnosed with or potentially exposed to COVID-19 and establish a plan in consultation with the local health department for communicating this information to employees.
What OSHA standards apply to COVID-19?
OSHA has published guidance on its website concerning the OSHA standards applicable to COVID-19, which may be accessed here. Because the process for promulgating regulations takes time and COVID-19 has emerged fairly recently, there is currently no standard that applies specifically to COVID-19 only, although there are a number of more general standards that may apply. Importantly, the General Duty Clause applies, which requires employers to provide to each worker “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” Other existing OHSA standards may apply as well. The precautions required depend on the nature of the workplace. OSHA provides general tips to prevent worker exposure to COVID-19 for all workers and employers, and specific guidance for workers and employers involved in health care, death care, laboratories, airline operations, border protection, and solid waste and wastewater management, and business travel abroad, which may be accessed here.
Can an employee refuse to come to work because of fear of becoming infected with COVID-19?
The Occupational Safety and Health Act provides that employees are only able to refuse to work if they believe they are in “imminent danger.” According to Section 13(a) of the Occupational Safety and Health Act (OSH Act) “imminent danger” includes “any conditions or practices in any place of employment which are such that a danger exists which can reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.” The vast majority of work situations would not rise to this level.
Employers should seek to put employees at ease and communicate the steps they are taking to keep the workplace safe. Employers need to keep in mind that OSHA’s anti-retaliation provision may be implicated with regard to disciplining or terminating an employee who does not come to work because of a good faith belief that doing so poses a health risk. In addition, employers should consider employees’ rights under Section 7 of the National Labor Relations Act (NLRA) when addressing these issues. Both unionized and non-unionized non-supervisory, non-managerial employees generally have a right to discuss the terms and conditions of their employment without penalty.
The COVID-19 situation presents a unique and complex set of challenges with many questions still unanswered. The guidance above is not designed to cover all questions or situations. Attorneys in Stevens & Lee’s Labor and Employment Group are available to offer their expertise in response to specific inquiries. For more information concerning legal issues associated with COVID-19 in the workplace, please contact Lisa M. Scidurlo at email@example.com, Jennifer A. Ermilio at firstname.lastname@example.org, or the Stevens & Lee attorney with whom you regularly work.