Should we continue to have employees work on-site? If so, what steps can and should we take to keep our workplace healthy and safe?
Although there is no current federal “shelter in place” order, many states and counties across the country have issued mandatory orders to “shelter in place” or “stay at home,” and to encourage social distancing and sanitation measures. These orders generally have the effect of stopping business operations unless the business is engaged in an essential or critical infrastructure function, or supports businesses engaged in such functions.
That said, even absent an order affecting the business’s ability to continue operations, employers should generally take proactive steps to limit on-site workers only to essential personnel who cannot complete their work remotely. The Occupational Safety and Health Administration advises that the Occupational Safety and Health Act (OSHA) requirements may apply to preventing occupational exposure to COVID-19, including OSHA’s Personal Protective Equipment (PPE) standards (which require using gloves, eye and face protection, and respiratory protection), and the General Duty Clause (which requires employers to furnish “employment and a place of employment which are free from recognized hazards that are causing or likely to cause the death or serious harm to . . . employees.”) Employers could face a risk under OSHA if they do not take affirmative steps to protect their workers.
Where remote work is not possible, there are steps you can and should take to ensure that your workplace continues to be a safe and healthy one.
The Occupational Safety and Health Administration advises that employers take several steps to reduce their workers’ risk of exposure to the virus. These steps include developing an infectious disease response plan (if one does not exist already); implementing basic infection prevention measures; developing policies and procedures for prompt identification and isolation of sick people, if appropriate; developing, implementing, and communicating about workplace flexibilities and protections; implementing workplace controls; and following existing OSHA standards.
Additionally, the CDC recommends that employers explore whether they can establish flexible work hours, such as staggered shifts, to increase the physical distance amongst employees and between employees and others.
In certain healthcare professions and other workplaces where employees are subject to bloodborne pathogens, federal workplace safety law further requires the employer to make an immediate confidential medical evaluation and follow-up available for employees that have had an exposure incident.
As a practical matter, employee morale may be affected by whether they understand that the employer has taken all necessary measures to keep employees safe on the job. The CDC notes that employers should anticipate fear, anxiety, rumors, and misinformation, and tailor their communications with those possible reactions in mind.
Employers should communicate with their employees to reiterate existing workplace rules, and outline any additional temporary rules, related to ensuring workplace health and safety. Employers should strongly consider preparing a written communication to employees that outline these policies and expectations to keep employees healthy and safe in connection with the COVID-19 outbreak.
At this time, if employers have not already done so, they should implement policies with respect to business travel. For example, employers may suspend all non-essential business travel, and require employees to submit an application to demonstrate need before traveling for business. As may already be required by state order or local ordinance, employers should consider postponing business events that involve large groups of employees (e.g., work conferences), or exploring whether such group gatherings can be accomplished virtually by email, phone, or video.
In-office protections can be utilized to prevent transmission of illness and assuage fears of transmission, such as providing hand sanitizing stations and increasing environmental cleaning and sanitation procedures.
Employers are encouraged to review CDC and OSHA strategies for minimizing the potential risk of exposure to all employees.
One of our employees is experiencing mild illness symptoms such as fever or cough, but the employee asked to continue working. Should we have the employee report to work?
No. Employees who are ill should not come to the workplace. If an employee reports to the workplace exhibiting symptoms, the employee should be sent home immediately.
If the employee is not too ill to work:
- For exempt employees, to the extent possible, employers should encourage flexible or remote working capabilities. Employers should work closely with exempt employees to determine if their position enables temporary remote working during the period of illness and what, if any, additional tools or technologies can assist in remote working to avoid or limit any business disruptions.
- For non-exempt employees, employers should review whether remote work is feasible, with particular attention to the employer’s ability to ensure continued compliance with wage-hour laws during remote work times. For employers who elect to permit certain non-exempt employee positions to work remotely, additional check-in procedures and oversight should be utilized to ensure productivity and compliance with timekeeping, breaks, and other federal, state and local wage-hour considerations. Review and implement parameters regarding tracking of employee time: monitoring proper and timely meal and rest periods (if applicable); overseeing, approving and tracking overtime; and facilitating supervisor management of employees to continue to meet business needs.
If the employee is too ill to work:
- Depending on the state of employment and the employer’s policies, the employee may be entitled to utilize accrued, unused vacation/paid time off (PTO) and/or paid sick leave during their time out of the business.
- To further incentivize employees not to come to the workplace when they are ill, employers may want to consider advancing additional PTO or sick leave to employees who do not have any accrued, unused PTO or paid sick leave to use at this time. Employers who do not provide paid sick leave to employees may consider issuing paid sick leave time to employees for 2020 in response to COVID-19. In certain states, paid sick leave can be issued without any further obligation to pay out the additional time upon termination. We recommend contacting counsel to design a state law-compliant policy.
- Employee time out of the business may also be protected and governed by federal, state and local law.
Can we require documentation from healthcare providers for employees who are sick with acute respiratory illness? If so, should we?
The answer to this question will differ based on jurisdiction (and particularly in jurisdictions that maintain state or local paid sick leave laws) and circumstance.
Federal law generally permits an employer to require reasonable documentation from healthcare providers to support the existence of an illness requiring time out of the business, or to certify the employee’s fitness to return to the workplace.
The Americans with Disabilities Act (ADA) allows employers to ask for employees to provide documentation from their healthcare provider to evaluate the extent of an impairment where an employee has requested an accommodation or the employer has an objective basis to believe the employee is unable to perform the essential functions of their job because of an impairment.
In some jurisdictions, state or local law may further address whether an employer may require medical documentation for an employee who requires a short-term absence for their own illness or the illness of a family member. In some cases, documentation should not be required, particularly where the employee is utilizing paid sick leave.
Moreover, at this time, the CDC recommends that employers not require a healthcare provider’s note for employees who are sick with acute respiratory illness to validate their illness or to return to work, since healthcare provider offices and medical facilities may be overburdened and unable to timely provide such documentation.
In response to COVID-19, employers that typically do require medical certification may want to consider temporarily relaxing the requirement of documentation from employees who are sick with acute respiratory illness due to the difficulty some employees may have obtaining access to medical providers under the present circumstances, and to encourage ill employees to remain out of the business until they are healthy.
Regardless of whether you decide to temporarily discontinue requests for documentation or continue following existing policies (as permitted by applicable laws), employers should maintain consistent policies and enforce those policies consistently (i.e., avoid disparate treatment of employees with similar symptoms). Employers are advised to consult employment counsel to address these situations.
If we allow employees to work remotely, do we have to provide the employees with additional equipment, or can we have employees use their own equipment (e.g., personal computer, cell phone, printer)?
Employers may generally require their employees to use their own personal devices for work-related matters. Depending on the jurisdiction, employers may be required to reimburse employees for costs associated with the use of their personal devices for work purposes.
Employers that permit employees to use their personal devices to conduct company business should consider whether this may affect the company’s ability to protect the security of company data. For instance, employers may consider implementing security measures on those personal devices to protect company data and confidentiality.
Employers should also ensure that they have written policies in place that define and communicate an employee’s expectation of privacy on their personal devices (or lack thereof), if used for work purposes.
If non-exempt employees are given remote access to perform work (e.g., access to work email on cell phone), employers should set forth the expectation that work will only be performed during working hours and on-the-clock.
If an employee is quarantined for an extended period of time, what are our responsibilities as the employer?
According to the CDC, US citizens, residents and immediate family members who have been in certain affected areas and who have been allowed to enter the United States may be subject to health monitoring and possible quarantine for up to 14 days, even if they are not currently exhibiting symptoms.
In the event an employee is subject to quarantine or isolation for an extended period of time, we recommend contacting counsel to determine the employer’s responsibilities and what protections the employee may be afforded during this time. Applicable state laws and municipal and county ordinances vary, and some require that employees be provided job-protected leave in this instance. Employee contracts or applicable collective bargaining agreements may also be instructive.
What should we do if an employee traveled through a high-risk area?
First, the employer should have a discussion with the potentially exposed employee to understand the timing, duration and extent of the travel in the high-risk area and/or exposure, and whether the employee has had any common symptoms of COVID-19. Discussion of an employee’s confidential medical information should be handled by designated individuals within the company who are trained to handle sensitive information and who are knowledgeable regarding what questions may be asked pursuant to your jurisdiction’s laws (e.g., Human Resources professionals who manage the company’s leaves of absence).
While Americans with Disabilities Act (ADA) does place some restrictions on what medical-related inquiries an employer can make of its employees, guidance issued by the EEOC during the H1N1 flu outbreak is clear that an employer does not need to wait until an employee returning from high-risk travel develops symptoms to inquire about exposure to similar outbreaks such as COVID-19. State and local laws may further dictate what information may be requested from an employee in these situations.
If the potentially exposed employee reports having no symptoms and it has been more than 14 days since exposure or travel to the high-risk area:
- The CDC does not recommend any special treatment of asymptomatic people outside the 14-day incubation period.
- Because the CDC does not recommend testing, special monitoring or special management for people exposed to asymptomatic people, the employer need not take additional steps with respect to other employees.
- The employer should still be careful to encourage good sanitary practices in the workforce.
If the potentially exposed employee reports having had no symptoms and it has been less than 14 days since the potential exposure or travel to the high-risk area:
- The employee should be encouraged to self-monitor their temperature and contact their doctor if they develop any symptoms (e., fever, cough or difficulty breathing).
- The employer should require the potentially exposed employee to remain at home for the duration of the incubation period.
- If a telework situation is feasible, the employee may be permitted to work remotely during this time and should be paid for all time worked.
- If no symptoms develop, the employer need not take additional steps with respect to other employees, but still should be careful to encourage good sanitary practices in the workforce.
- If the employee develops symptoms, the employer should instruct the employee to stay at home and should follow the steps outlined for employees showing symptoms of COVID-19 (see below).
If the potentially exposed employee reports symptoms of coronavirus:
- The employee should be instructed to stay away from the workplace.
- The employee should see a medical professional immediately. The employer should not permit the employee to return to the workforce without a fitness-for-duty certification.
- If the employee is found to have contracted COVID-19, the CDC and local health department should be contacted immediately, likely by the employee’s healthcare provider.
- If the affected employee had contact with any other employee or worksite while ill, the employer should inform other potentially affected employees (taking care to keep the affected employee’s identity and medical information private to the extent possible) and ask those who have any symptoms to stay at home either on a leave basis or through telework until those employees receive a fitness-for-duty notice.
- The employer should contact a hazmat company to disinfect the job site or workplace so that it may provide assurances to other asymptomatic employees that it is safe to return to work.
In taking the above actions, the employer must be careful to avoid discrimination against individuals who are perceived as having contracted COVID-19 or who may be from high-risk areas. Additionally, the employer must make sure to comply with the confidentiality restrictions imposed by the Family Medical Leave Act (FMLA) and Health Insurance Portability and Accountability Act (HIPAA), and similar state and local laws; in particular, the person who contracted coronavirus or symptoms should not be identified to other employees.
If we require an employee to obtain a fitness-for-duty certification before returning to work, do we have to pay for the employee’s out-of-pocket expenses?
Depending on the circumstances, testing and a fitness to return to work certification may be necessary, particularly for employees who have been exposed to COVID-19 and are exhibiting symptoms, or who have been diagnosed with COVID-19.
That said, if the employer requires its employee to obtain a medical certification or test, state law may require the employer to reimburse the employee for these costs. In addition, for non-exempt employees, the employer may be required to compensate the employee for their time spent obtaining the certification. For certain workplace exposures (e.g., bloodborne pathogen exposure), the employer would be required to pay for the cost of testing under OSHA regulations. We recommend contacting counsel to discuss your particular situation and jurisdiction further.
In scenarios where the employer sends an employee for laboratory testing under state and federal legal authorities, the laboratory conducting the test may reveal the results directly to the employer in accordance with HIPAA. (See 45 C.F.R. § 164.512(b)(1)(v)).
My employees are required to travel for work (both domestic and international) as part of their normal job duties, but many are expressing concern and reluctance to travel at this time. Can we require our employees to travel?
While employers need not necessarily ban all business travel, employers should strongly consider cutting back on travel at this time. First and foremost, employers should adhere to current and future travel restrictions and follow local and national government and health agency guidance on travel.
OSHA allows employees to refuse to travel if there is a known or realistic threat of danger to their health or safety, but general travel on airplanes and public transit to densely populated areas may not constitute such a danger. Employers can require employees to engage in ordinary business travel unless there is a known danger in sending the employees to specific locations. Employers should consult the CDC travel advisories, as well as each affected area’s own local or national travel restrictions, to determine if this will be an issue.
Please also note, if employees come together to protest or refuse to engage in travel—or even if only one employee comes forward on behalf of their colleagues—their concerted efforts could be protected under the National Labor Relations Act. We recommend consulting with counsel in this event.
While employers may be permitted to require employees to travel to lower-risk areas under pertinent law, government authorities have generally advised against travel to restricted or high-risk areas absent critical circumstances. Even if travel is possible, practical considerations weigh against it, as employees may not be able to leave the destination and/or may be required to quarantine on return home.
Beyond this, we should remain cognizant of employee morale and weigh temporary business hardship against potential harm to morale, retention and recruiting. If “business as usual” is not exactly palpably dangerous but still makes employees uncomfortable, consider seeking input from other managers or senior employees for ways to accommodate employees’ concerns while still maintaining productivity. Permitting employees to conduct certain business by videoconference or other remote method rather than requiring travel may be a temporary and effective compromise to permit employees to refrain from travel, while allowing most business to continue.
Given the rapidly evolving situation, even if business travel remains possible, we recommend that employers explore alternatives.
Can we institute a rule that prohibits employees from traveling outside of the country, or to affected areas?
No. As a general rule, employers cannot control an employee’s lawful, off-duty conduct, including elective travel. However, given the current circumstances, it would be reasonable to introduce a policy requiring employees to disclose what their travel plans are.
Many people book travel a long time in advance. If an employee has already booked travel to a known affected area and still intends to travel, remind the employee of the risks involved and your obligation to protect the health and safety of your employees. Employers may want to specifically flag for the employee the possibility of a mandatory quarantine period on return from travel. Ask the employee to keep the appropriate company contact (e.g., Human Resources) informed of any health concerns.
Ensure employees understand the policy in relation to pay if they do have to go into quarantine on their return from travel, and whether remote work is available for the employee.
What is our obligation if an employee cannot come to work because schools are closed and they need to care for their children?
On March 18, the President signed the Families First Coronavirus Response Act (“Families First Act” or “Act”) and goes into effect April 2, 2020. The Act has two components that provide paid time off for employees must take to care for their children during the closure of any schools related to COVID-19. The Families First Act only applies to employers who employ 500 employees or less in the United States or one of its territories.
First, employees who cannot work (or telework) and must care for a child whose school or place of care is closed due to COVID-19 are entitled to two weeks (80) hours of paid leave at two-thirds their rate of pay up to $200 per day. Eligible employees are entitled to this leave no matter how long employee. An employer cannot require employees to take other PTO, vacation, or previously provided sick leave before availing to this mandated leave.
Second, the Act requires employers to provide additional FMLA leave, up to ten weeks in total beyond the initial two workweeks, for employees to use for the exact same child care purposes as the initial portion of the leave. This extended leave must be provided at the same two-thirds rate of pay up to $200 per day as the initial portion of the leave. This leave, however, only applies to employees who have been employed for 30 or more days and to the extent they are unable to work or telework.
Does an employer’s response to the virus implicate any privacy laws or regulations?
It might. Privacy rights are complicated matters for employers and you should consult a privacy lawyer to discuss those issues.
Which states are waiving the waiting period for unemployment benefits?
The following states have waived the waiting period for unemployment benefits:
- New York
- Rhode Island
The following states will likely waive waiting periods for unemployment benefits soon:
- Nebraska (pending as of 3/16)
- New Hampshire (pending as of 3/16)
- Michigan (pending as of 3/16)
Pre-COVID-19, New Jersey and Connecticut do not have a waiting period to file for unemployment benefits.
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