- March 21, 2020
What are best practices to addressing COVID-19 with employees?
Employers should implement open communication practices, providing as much clarity as possible about their policies and procedures. They should monitor developments in the news and in government communications as well as guidance from the Centers for Disease Control and Prevention (CDC) to ensure their guidance is consistent with these fast-moving developments. It is crucial to let employees know that the company is monitoring developments and implementing all possible steps to help contain the spread of the virus in the best interests of employees, vendors, and customers. Employers should use common sense in allowing those who are able to work from home to do so if an individual has reported having a compromised immune system.
What if one of my employees either tests positive for COVID-19 or exhibits symptoms?
A conservative approach is that any employee who test positive or exhibits symptoms, along with any employees who worked directly with that employee, should be sent home and asked to self-quarantine for 14 days. The Center for Disease Control is consistently updating its recommendations and business guidance and its approach may vary:
Can I take an employee’s temperature at work to determine whether they might be infected?
The Americans with Disabilities Act (ADA) places restrictions on the inquiries that an employer can make into an employee’s medical status, and the EEOC considers taking an employee’s temperature to be a “medical examination” under the ADA. The ADA prohibits employers from requiring medical examinations and making disability-related inquiries unless (1) the employer can show that the inquiry or exam is job-related and consistent with business necessity, or (2) the employer has a reasonable belief that the employee poses a “direct threat” to the health or safety of the individual or others that cannot otherwise be eliminated or reduced by reasonable accommodation. Taking an employee’s temperature may be unlawful if is not job-related and consistent with business necessity. Taking employee temperature and other more extreme measures is allowed in a healthcare setting. The EEOC’s position during a pandemic is that employers should rely on the latest CDC and state or local public health assessments to determine whether the pandemic rises to the level of a “direct threat,” and under certain circumstances, employers can inquire about flu-like symptoms, for example, fever and respiratory problems (see https://www.eeoc.gov/facts/pandemic_flu.html).
One of my employees has been exposed to the virus but only found out after they had interacted with clients and customers. What should I do?
Employers should follow the same precautions as noted above with respect to coworkers, treating the situation as if the exposed employee has a confirmed case of COVID-19 and sending home potentially infected employees that he came into contact with. As for third parties, you should communicate with customers and vendors that came into close contact with the employee to let them know about the potential of a suspected case.
Am I required to pay an employee off work due to COVID-19 or suspected COVID-19?
Generally under federal law, employers are not required to pay non-exempt employees for work they do not perform and are not required to pay exempt employees for full-week absences in which they perform no work. However, under the Families First Coronavirus Response Act passed on March 18, 2020, employees are likely to be eligible under the Emergency Paid Sick Leave Act to receive up to two weeks of paid sick leave to self-isolate/quarantine, seek diagnosis or care for COVID-19, or to care for a child or family member with COVID-19, and under the Emergency Family and Medical Leave Expansion Act 14 days of unpaid leave, followed by paid COVID-19-related FMLA leave. Notably, both Acts would only apply to employers with fewer than 500 employees. For more information on the Families First Coronavirus Response Act, please read our article posted here: [Congress Passes Emergency Paid Sick Leave & FMLA Changes Applicable to Many Employers].
Unionized employers should also be mindful that collective bargaining agreements (CBAs) may create additional obligations to pay for lost time under some circumstances. In addition, short term disability plans may cover sickness due to COVID-19, so employers should consult their policies and provide paperwork as needed.
Can an employee refuse to come to work because of fear of infection?
Generally, employees are only entitled to refuse to work if they believe they are in imminent danger as defined under Section 13(a) of the Occupational Safety and Health Act. This obviously is a changing dynamic that is factually dependent. Notably, Section 7 of the National Labor Relations Act (NLRA) extends broad-based statutory protection to employees (in union and non-union settings alike) to engage in “protected concerted activity for mutual aid or protection.” Such activity has been defined to include circumstances in which two or more employees act together to improve their employment terms and conditions. Employees are generally protected against discipline or discharge for engaging in such activity.
What actions can I take if an employee is exhibiting flu-like symptoms but refuses to leave the workplace?
Remind the employee that you are asking them to leave. Try to make them understand the reasons why their departure is necessary to maintain the health and safety of the entire workplace. If there are benefits available such as paid sick leave, use of accrued vacation, or something else that may appease them, you should explain these benefits and how the employee can utilize them. If the employee still refuses to leave the workplace, you can consider appropriate discipline, up to and including termination. However, termination of the employee should be considered a last resort.
If an employee is absent because of testing positive for COVID-19 and then wants to return to work, do I need to let them?
Best practice is to ask for medical certification to return to work.
How should I handle employees with children facing lengthy periods without school?
If employees are facing school closures, best practice is to let them work from home. Employers may let them use available PTO and unpaid time off. The Families First Coronavirus Response Act will also provide a potential source for paid leave. For more information on the Families First Coronavirus Response Act, please read our article posted here: [Congress Passes Emergency Paid Sick Leave & FMLA Changes Applicable to Many Employers].
What about employees who need time off to care for family members who have come down with COVID-19 or related symptoms?
To the extent employees need time off to care for family members with COVID-19, covered employers must follow whatever leave is implemented under the Families First Coronavirus Response Act, including the Emergency Family and Medical Leave Expansion Act. For more information on the Families First Coronavirus Response Act, please read our article posted here: [Congress Passes Emergency Paid Sick Leave & FMLA Changes Applicable to Many Employers].
Should employers require written proof of COVID-19 illness for employees or their family members before taking time off?
No, given that COVID-19 is a pandemic and direct threat, employers should allow for leave and then have employees provide documentation as soon as they can.
Should I cancel all conferences, trade shows, or team meetings?
Governors and mayors across the country are banning large gatherings of various sizes, so that decision may no longer be up to individual businesses. Regardless, most large groupings of people should be cancelled or postponed to help curb the spread of the virus.
Does workers’ compensation apply to employees who contract COVID-19?
If an employee becomes infected as a result of their work (e.g., health care workers, employees working in high risk areas), workers’ compensation may likely apply.
What are my legal responsibilities for ensuring the safety of an employee working from home?
An employer who requires or permits an employee to work from home has limited responsibilities for the safety and health of an employee’s home working conditions. The Occupational Safety and Health Administration sharply distinguishes between home offices and other work places.
Is COVID-19 Recordable or Reportable to OSHA?
Employers are required to track COVID-19 cases and record them in compliance with OSHA record keeping standards.
If I furlough a worker, is this considered a separation of employment?
Although the Illinois Wage Payment Act does not define “separation,” it seems likely that this requirement would not apply to employees who are on furlough as opposed to terminated.
What if I have to lay off the majority or all of my employees?
You may be subject to certain disclosure requirements. For example, the Illinois WARN Act requires employers with 75 or more full-time employees to give workers and state and local government officials 60 days advance notice of a plant closing or mass layoff. The Federal and Illinois WARN statutes have provisions addressing terminations due to natural disasters and calamities. It is unclear whether those provisions, however, would apply to cover a pandemic.
If I temporarily lay off an employee will they be eligible for unemployment?
Under emergency rules adopted by the Illinois Department of Employment Security, an employee temporarily laid off could qualify for benefits. For more information on emergency unemployment rules adopted as COVID-19 response, please read our article posted here: [Emergency Unemployment Rules Adopted As COVID-19 Response].
What other employment laws are implicated by COVID-19 in the workplace?
Title VII of the Civil Rights Act of 1964 and other federal anti-discrimination laws prohibit discrimination on the basis of protected classes including national origin, disability, genetic information, and age, all of which may be relevant to the pandemic. As discussed above, some limitations imposed on inquiries and testing under the ADA are lifted in a pandemic, but general principles of non-discrimination remain. While modifying behaviors to promote health and safety, employers must ensure that all decisions are made without regard to protected class status.
If a shelter-in-place order is implemented, what will be considered essential services?
This will depend on the municipality or state ordinance. However, other shelter-in-place orders have deemed essential businesses to include those essential to community life, such as health care operations, grocery stores and other food providers, news outlets, banks, hardware stores, postal services, laundromats, restaurants (but only for take-out or delivery), and others.
Can employees sue me if they contract COVID-19 at work?
Probably not. State workers' compensation acts will likely bar those kinds of claims. In most jurisdictions, a claim such as this would require a showing of intent to harm. The steps an employer takes to prevent the transmission and spread of the virus are helpful to negate any showing of intent.