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Coronavirus in the Workplace - February 21, 2020

The news is full of both images and stories about coronavirus/COVID-19 and the toll it’s taking in China. With increased activity in the United States and travel restrictions, as well as some U.S. citizens being quarantined, including cruise ships, employers are seeing an increasing number of questions regarding how to respond to issues relative to the virus. These issues fall into two basic categories: practical considerations and how does an employer remain legally compliant while keeping everyone at work safe.

Practical Issues

Can I have a policy that my employees must tell me if they have been exposed?

Yes. You can have a policy that requires employees to tell you when they’ve been exposed to a highly communicable illness. This can include everything from COVID-19 to mumps, measles, and whooping cough. Although some of these illnesses can be eliminated by a vaccine or are more readily treatable than others, they are typically the subject of public health reporting, can be highly contagious, and can certainly strongly impact employees, including those who are immunocompromised. Typically, we are not only seeking to keep our employees safe in the workplace, but also helping to prevent the spread of illness to others, such as families, clients, customers, and vendors.

Can I keep my employee from work if he/she has been exposed to the coronavirus?

Yes. You may keep an employee off work and separated from your general workforce if they have been exposed to the coronavirus/COVID-19. This may occur because of a public health quarantine or at your request. There are wage hour issues that may be involved as well as FMLA (addressed below).

Can I send someone home if they are sick?

Absolutely. If someone presents in your workplace with active symptoms you can always send them home. If you had a child in daycare, daycare wouldn’t let you bring them if they had diarrhea, vomiting, or a fever (temperature of 100° F or 37.8° C or higher) until they have been symptom-free (including fever) for at least 24 hours without the use of fever relievers. This recommendation can be found on the CDC website. You don't have the obligation to take employee's temperature when they come in the door, but if they show or talk about active symptoms, you do need to assess.


Should I have a policy on how we clean the office or how to wash your hands in order to limit the spread of viruses?

It is always a good idea to make sure that you have adequate cleaning and encourage everyone to wash their hands and practice good hygiene. The type of program you would need depends entirely on your individualized circumstances, including the industry that you are in. Healthcare, childcare and food preparation all have different rules you would need to abide by than might be true of other industries.

Should I count this as absenteeism under our absenteeism policy?

If you are asking an employee to stay home because they have been exposed to something that may become a pandemic, it doesn’t seem entirely fair to count this as absenteeism. The employee is being asked to stay at home by you, the employer, or by a mandatory requirement from the department of public health. It would be difficult to justify a termination based on absenteeism in circumstances of this type and it is likely to damage your internal reputation for fairness.

Legal Issues

Occupational Health and Safety (OSHA)

Employers have an obligation to provide a safe workplace for employees under OSHA’s general duty clause. In some circumstances, such as with health care workers, exposures to certain kinds of illnesses are an inherent job risk but the employer still has the obligation to minimize this risk.

For example, someone working with a tuberculosis (TB) patient may be required to use an N-95 respirator in order to limit TB exposure. People working with certain forms of chemicals also use respirators, special suiting, and other items in order to ensure safety in the workplace.

In some instances, such as colds and flu, it can be difficult to track the actual exposure. If an employer has a potential novel viral exposure within its workplace, it is certainly within its rights to send the employee home until medically cleared, even if the employee says he/she feels fine. It is likely an open question as to whether the employer could be held responsible for exposure as this would depend entirely upon the circumstances of the exposure.

If part of an employee’s job is significant travel and there is an existing pandemic there could be additional issues for employers who send employees into viral hot zones. A U.S. employer currently sending someone to China would certainly have a significantly greater risk than an employer who chooses to delay that travel.

Creating a safe workplace is also part of the reason employers may choose to send employees home or prohibit employees from returning to the workplace if there is a potential exposure. Employers are charged with the duty to keep not only the individual but the group safe.

Whistleblowing

What if you have an employee who refuses to come to work because they are afraid of exposure? This depends entirely on the nature of the potential risk and exposure. There have certainly been instances during SARS, or even the more recently with measles outbreaks, where employees have refused to travel although that travel is a critical and essential component of their job.

Making a complaint that you believe that the workplace is unsafe or that a component of the work is unsafe could kick in the whistleblower protection requirements of OSHA. However, if the fear is more generalized, simply based on concerns that relate to media coverage or more general pandemic questions this would not necessarily be an objective or fact-based concern. If the employer can show that there is not a substantive level of risk and that the employer has taken steps to mitigate any risk that may exist as well as respond to risk, whistleblower protection is significantly less likely.

Family and Medical Leave Act (FMLA)

If an employer is covered by the Family and Medical Leave Act, the employee is ill and otherwise meets the requirements of the FMLA, the employee is entitled to leave under the Act.

For a novel virus, such as the coronavirus, it is very likely the disease would be considered a serious health condition under the FMLA. There would be monitoring and a course of treatment as well as a significant time out of work exceeding the more than three-day definition provided by the FMLA.

If an employee’s spouse, child, or parent is exposed and the employee is needed to provide care for that spouse, child or parent, the employee would then also qualify for FMLA. You may want them out of the workplace anyway because at that point they’ve likely been exposed to the virus as well. However, an employee who is simply being held out of work as part of a quarantine because of potential exposure, who is not ill at the time, likely does not qualify under the FMLA for those protections. Iowa does not have a separate leave act which relates to issues of this type and so it would primarily be the federal leave statues which would apply.

The Americans with Disabilities Act/Americans with Disabilities Amendments Act (ADA/ADAA)

The ADA/ADAA provides protections for people with disabilities which can be both long term and temporary. Like the FMLA, it is possible the ADA/ADAA would apply to any leave necessary for an employee who fell ill with the coronavirus or other significant illness. However, the ADA/ADAA would not normally apply if the employee was simply being quarantined or/and does not apply for the care of other people. ADA/ADAA obligations apply exclusively to the employee.

Fair Labor Standards Act (FLSA)/ Wage Hour

Wage hour is a place where all these issues can get extremely tricky and you have to be able to differentiate between non-exempt employees (hourly) and exempt (salary) employees.

  • Business Travel 
    • If an hourly/nonexempt employee is on a business trip and is quarantined in an area because they are not allowed to leave as a result of exposure, the overnight travel rules will apply with the employer responsible for providing payment for wages which cut across the workday and for all time the employee is in fact working.
    • For salary/exempt employees, if there is an absence from work occasioned by the employer, that employee should be paid. For exempt employees, if the absence is occasioned by the employer, that employer is liable for the employees’ ongoing wages and may not deduct from actual salary. PTO time can certainly be deducted in this instance but only until it is exhausted.
  • Personal Travel: If an employee is on a personal trip and is kept out of work by a local quarantine, that employee is not typically entitled to wages no matter if they’re exempt or non-exempt. Note the rules for partial day absences for exempt employees still apply.

Absence occasioned by the employer

If an employee is released to return to work but the employer would prefer he/she stay out a day or two longer (and the employee is salary/exempt) that is an absence caused by the employer. If there is no PTO it would still be paid time. If quarantined due to personal travel or by the Department of Health, it is not paid time. Note this applies to exempt employees only.

Working remotely and data protection

If you have policies and the appropriate infrastructure to allow employees to work remotely it is possible that employees who are quarantined can engage in offsite or remote work. Do not expect employees who are on FMLA to work unless you properly account for the work time.

It is important that any work from home process is well managed and there is a discussion between you and the employee about how issues will be addressed. This would include data security as well as accounting for all time worked.

Data is particularly problematic if the employee is located in a European Union country where heightened data protection (GDPR) applies and where data, if used overseas, may create additional legal liability concerns. It may also be an issue in certain countries if data exchanges are part of a state-run network. Work from home confidentiality, security and privacy issues for your data and the data of your vendors and customers should always be assessed before allowing a remote work process.

Workers' compensation

In most instances when an employee picks up the flu, a cold or another virus, it is not considered to be a worker’s compensation matter, even if the employee has been exposed to those issues in the workplace. It can be difficult to track back where you picked up a cold given that they are so common and at certain seasons of the year the flu starts to feel like it is everywhere, not just the person coughing in their cubicle next to you. However, it is possible worker’s compensation would apply when there is a novel virus with limited exposure patterns and well-known disease vectors. It is recommended that you coordinate with your worker’s compensation carrier if you have a report of a coronavirus if there is a potentiality of work-based exposure.

Premises liability

Under the doctrine of premises liability, a business owes individuals who it invites onto or allows to enter their premises a duty of reasonable care to protect against hazards and other dangers. If, as a business, you are aware that there is the potential risk of exposure, such as you recently sent an employee home for quarantine, it may create a duty to warn third parties of that risk as well as the duty to mitigate any potential spread of a virus such as preventing access to certain areas or to certain people. There may also, as noted above, be duties to sanitize certain equipment or address environmental hygiene. These duties can also be affected by a tenant lease or other contractual arrangements with your cleaning service and building maintenance.

The Big Picture

Check your policies to make sure you clearly and concisely indicate to employees that they must inform the employer of an exposure to any highly communicable disease. Have policies in place which indicate that you may send employees home who are exhibiting symptoms of being unwell, including fevers over 100 degrees, active diarrhea or vomiting, or who have been traveling in virus hotspots.

Understand what work may and may not be completed remotely and even if you do not typically allow remote work, have policies in place for potential emergency needs.

Always remember that the scientific understanding of the virus is increasing and that with this new knowledge CDC protocols may change, therefore the recommended course of action for employers, or even for quarantine, may change in the future. Employers are recommended to continue to consult with their attorney regarding procedures for integrating traveling employees or those who may be subject to quarantine as the CDC continues to assess risk factors.

For more information about the coronavirus/COVID-19, read these blog posts:


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