Confronting COVID-19 in the WorkplaceMarch 12, 2020 – Client Alert
Employers are faced with critical questions and important legal obligations as they address Coronavirus 2019 (COVID-19) matters in the workplace. While it is impossible to address all potential legal issues in a single client alert, below are general answers to some of the key questions that employers are asking:
What Obligation Does an Employer Have to Protect its Employees From COVID-19?
The Occupational Safety and Health Act (OSHA) requires employers to provide working conditions that do not pose a risk of serious harm and to provide employees with information and training about workplace hazards. Employees must also be permitted to exercise their rights without fear of retaliation.
To meet these obligations, employers should regularly continue to monitor updates from reliable sources and agencies such as those identified below and continue to analyze whether employees could be at actual risk of exposure. Employers may refer to OSHA’s resources for more information.
How Can an Employer Reduce Risk of Transmission?
To help prevent the transmission of the virus, employers should follow the steps recommended by the Centers for Disease Control and Prevention (“CDC”) by:
- Instructing employees about the signs of COVID-19, including, fever, cough and shortness of breath and posting and/or distributing this CDC workplace poster. (*Note that current guidelines suggest that symptoms can appear anywhere from 2-14 days after exposure.)
- Instructing employees who are sick to stay home and sending sick employees home at the first sign of illness.
- Providing hand sanitizer and encouraging frequent and thorough hand washing with soap and water for at least 20 seconds.
- Cleaning and disinfecting frequently-touched objects and surfaces, such as door handles, bannisters, and phones, throughout the day.
- Reminding employees to avoid touching eyes, nose, and mouth with unwashed hands.
- Encouraging employees not to share personal items (such as dishes, food and makeup) with each other.
- Eliminating unnecessary meetings and visitors, encouraging “virtual” meetings by phone and videoconference, and reminding employees to refrain from shaking hands in business settings.
- Assessing the risks of exposure by identifying workers who may have recently traveled to or are scheduled to go to areas where there has been an outbreak.
- Postponing all unnecessary business travel and prohibiting business travel to countries designated as high risk by the CDC and/or the World Health Organization (“WHO”). Travel notices and warnings from the CDC and WHO have been updated numerous times since January.
- Consulting the CDC risk assessment guidelines.
- Imposing quarantines on employees who have been directly exposed to COVID-19 and/or traveled to an outbreak area, to the extent permitted by law. Employees who can work from home may be permitted to telecommute.
- Having a single point of contact for employees for all concerns that arise relating to health and safety.
What Rights Do Employees Have Under the ADA, FMLA/CFRA or Other Disability or Privacy Laws with Respect to COVID-19?
Employers should be aware that the Americans with Disabilities Act (“ADA”) or California’s Fair Employment and Housing Act (“FEHA”) permit employees to bring claims for discrimination because their employer regarded them as having a physical or mental impairment that substantially limits a major life activity. Employers should consult the U.S. Equal Employment Opportunity Commission’s fact sheet on Pandemic Preparedness in the Workplace and the ADA for more information on their current position about this.
If an employee seeks any accommodations in connection with a certified disability, including accommodations related to concerns with COVID-19, the employer should remember it has an obligation to engage in the interactive process with the employee and may further be required to provide reasonable accommodations that do not impose an undue burden on the employer. Requested accommodations may include but are not limited to travel restrictions, the ability to telecommute, or time off for additional medical appointments.
If an employer is covered by the Family Medical Leave Act (“FMLA”) or California Family Rights Act (“CFRA”), it should consult with counsel to evaluate if the employee might qualify for such leave. While it is unclear whether COVID-19 alone would qualify as a serious health condition, a number of related treatments and/or conditions (e.g. hospitalization, incapacity for more than three days with continuing treatment by a health care provider, and pneumonia) would qualify as such under the FMLA. If an employee has an underlying medical condition that is exacerbated by COVID-19, they would also likely be entitled to FMLA/CFRA leave.
Employees also have a right to privacy in their medical information under the ADA and FEHA and may have additional privacy rights under other laws. As with any other medical records or certifications, communications about an employee’s diagnosis, treatment or request for accommodation with respect to COVID-19 must be kept confidential by the employer and separate from the rest of the personnel file.
Furthermore, the government recently confirmed that employers and entities who are covered by the Health Insurance Portability and Accountability Act (HIPAA) must still comply with HIPAA with respect to COVID-19 incidences. Health care providers and other covered entities who believe it is necessary to share information with the CDC or other public health agency should consult with legal counsel.
Notwithstanding an employee’s privacy rights, employers can request that employees inform them if they are planning or have traveled to countries considered by the CDC to be high-risk areas for exposure to COVID-19 as long as the employer does not inquire into areas of medical privacy.
Can an Employer Force an Employee to go Home If They Are Sick?
If any employee exhibits fever, difficulty in breathing, or other signs of illness, the employer can generally ask the employee to leave work.
What Obligations Does an Employer Have to Other Employees or Third Parties if an Employee Is Suspected to Have or Tests Positive for COVID-19 or Has Come in Contact with Someone Who Is Presumed to Have the Virus?
If an employee tests positive for or is suspected to have COVID-19, all employees who worked closely with that employee (three to six feet) should be quarantined for a 14-day period to ensure the infection does not spread. In compliance with privacy laws, the employer should not identify the infected employee’s name but may confirm whether the affected individual has tested positive or is only suspected of having COVID-19.
The employer should also arrange for a deep cleaning of any affected workspaces and, where applicable, inform their building management.
Employers are not obligated to report a suspected or confirmed case of COVID-19 to the CDC. A healthcare provider that receives a positive test result is a mandatory reporter who will handle reporting requirements.
These same procedures may be applied if an employee reports they have had contact with someone who is presumed to have the virus.
If an affected employee had close contact with company customers, clients or vendors, the employer should notify the third parties about their exposure to someone with a suspected case. However, the employer should not identify the infected employee by name.
When Can an Employee Return to Work?
If an employee has personally suffered symptoms of acute respiratory illness, the CDC recommends that they stay home until they are free of fever (100.4° F [37.8° C] or greater using an oral thermometer), signs of a fever, and any other symptoms for at least 24 hours, without the use of fever-reducing or other symptom-altering medicines (e.g. cough suppressants).
If an employee has been exposed to Coronavirus but has not been diagnosed and does not have symptoms, the employer should engage in an interactive process with the employee and their health care provider (if applicable) to determine appropriate next steps.
For employees who undergo a 14-day quarantine due to travel, the employer may request documentation of the employee’s travel to confirm the dates of the employee’s self-monitoring at home, and if the employee did not have any fever, cough or shortness of breath during these 14 days, the employer should have no medical reason to prohibit the employee from returning.
While employers might be tempted to request medical certification before allowing an employee to return, many experts have predicted that the medical system may become too overburdened to provide such certifications in a timely manner, if at all. Furthermore, when an employee exercises their right under state and local Paid Sick Leave laws, a request for medical certification in some instances could be deemed retaliatory, particularly where the leave of absence did not exceed the amount of paid sick leave by law. In other instances, such as a certified disability and longer absence related to COVID-19, it may be permissible and even necessary to require medical certification. Employers should consult legal counsel to avoid any potential legal pitfalls in this area.
Is an Employee Who Cannot Work Due to COVID-19 Entitled to Compensation?
Any employee may voluntarily seek payment of accrued vacation, PTO and/or sick leave if they are unable to work due to illness, COVID-19-exposure, or caring for a family member, and they may further use vacation or PTO in the event they are unable to work for other COVID-19-related reasons, such as a quarantine of an employee who cannot perform duties remotely.
An employee’s request to use paid sick leave is protected by law. Paid sick leave can be used for absences due to illness, the diagnosis, care or treatment of an existing health condition or preventative care for the employee or the employee’s family member. According to the “Coronavirus Disease (COVID-19) – FAQs on laws enforced by the California Labor Commissioner’s Office,” which was recently published by the Department of Industrial Relations (“DIR”), preventative care may include self-quarantine as a result of potential exposure to COVID-19 if quarantine is recommended by civil authorities, where there has been exposure to COVID-19, or where the worker has traveled to a high risk area.
California employers should note that under the DIR’s FAQs, employers cannot require that the worker use paid sick leave; that is the worker’s choice.
If an employee has no remaining sick leave or PTO/vacation and is unable to work, the employer is generally not required to continue to pay the employee unless there is a legal obligation to keep doing so, such as under an employment contract, a collective bargaining agreement, or other specific state or federal law.
Employers should also take pause before reducing an exempt employee’s salary due to sickness. The limited instances when an employer can deduct from an exempt employee’s salary are described in greater detail in Item 8 of the DIR FAQ’s.
An employee who does not have sick leave and/or PTO may still have other options for partial wage reimbursement. In California, if an employee is unable to work due to having or being exposed to COVID-19 (certified by a medical professional), they can file a State Disability Insurance (SDI) claim with the Employment Development Department (“EDD”) for partial wage reimbursement.
Furthermore, if an employee is unable to work because they are caring for an ill or quarantined family member with COVID-19 (certified by a medical professional), they can file a Paid Family Leave (PFL) claim with the EDD.
For more information about these state benefits, visit: https://edd.ca.gov/about_edd/coronavirus-2019.htm.
As pointed out in the DIR FAQ’s in certain situations, employees who report to work and are sent home before the end of their shift might be entitled to “reporting time pay.”
Can an Employer Administer Medical Tests?
It may be a violation of the ADA and privacy rights to require employees to take any medical tests that are not otherwise a job-related necessity. Employees may require medical certification for employees who seek accommodation for a disability.
What Should an Employer Do if An Employee Refuses to Work Due to Fear of COVID-19?
Employees can only refuse to work if they believe there is an immediate or imminent threat of death or serious physical harm. If an employee expresses this concern, the employer should contact counsel to conduct a detailed analysis of the specific facts of the case.
Employers should remember that when groups of employees engage in communications with each other about workplace concerns, those employees may also be protected under the provisions of Section 7 of the National Labor Relations Act (NLRA), which protects employees’ “concerted activity for the mutual aid or protection” of employees and also protects communications about workplace conditions in both union and non-union settings. Employees should be careful not to discipline or appear to discipline employees for engaging in such activity.
When Does COVID-19 Trigger an Employee’s Right to “School Leave?”
Employees at worksites with 25 or more employees are entitled up to 40 hours of leave per year for specific school-related emergencies, such as the closure of a child's school or day care by civil authorities. As stated by the DIR, “[w]hether that leave is paid or unpaid depends on the employer’s paid leave, vacation or other paid time off policies. Employers may require employees use their vacation or paid time off benefits before they are allowed to take unpaid leave but cannot mandate that employees use paid sick leave. However, a parent may choose to use any available paid sick leave to be with their child as preventative care.”
Can an Employee Who Alleges They Contracted COVID-19 Through Work Make a Workers’ Compensation Claim?
Though laws vary by state, an employee seeking workers’ compensation must generally show that the illness or disease (1) is “occupational” (i.e. it arose out of and was in the course of employment), and (2) arose out of or was caused by conditions peculiar to the work which created a risk of contracting the disease in a greater degree and in a different manner than in the public generally.
While health care workers might have a more direct ability to establish these elements, the analysis for most employees is very fact-specific and must be determined on a case-by-case basis.
An employee making a workers’ compensation claim will of course have to provide medical evidence to support their claim, while the employer may defend itself by asserting alternate sources of exposure.
Should Employers Continue to Sponsor or Allow Employees to Attend Large Events, Conferences and Seminars?
Many conferences and seminars are being cancelled or postponed by event organizers. Furthermore, many states are strongly discouraging unnecessary group meetings. California’s Governor Newsom just announced California public health officials’ updated policy on gatherings to protect public health and slow the spread of COVID-19. The public health experts recommend that gatherings should be postponed or canceled across the state until at least the end of March. Non-essential gatherings must be limited to no more than 250 people, while smaller events can proceed only if the organizers can implement social distancing of 6 feet per person.
We encourage you to reach out to a member of our Employment Law Group with any questions or concerns.