Now that coronavirus (COVID-19) cases have been confirmed in Ohio and the World Health Organization (WHO) has officially declared the outbreak a “pandemic,” our diverse client base is trying to address the countless issues that have emerged. The following is KJK’s specific responses to some common questions about the virus that we are currently fielding on an hour-by-hour basis. Please reference the latest CDC and other regulatory guidance and law referenced below prior to making any decisions, and contact KJK prior to taking any action. We will help guide you through these challenging times.
Q: Can employers prohibit employees from going on vacation?
A: While employers may mandate that employees inform them ahead of travel to an area with a known outbreak or elevated risk, state or local laws may limit an employer’s ability to regulate personal travel. Employers should make employees aware that, once they return, they may be required to self-quarantine before coming back to the office. We recommend that these matters be evaluated carefully on a case-by-case basis.
Q: Can employers require employees to travel right now?
A: In certain circumstances, probably, but we do not recommend mandating travel at this point unless absolutely necessary. Some employers are currently curtailing all nonessential travel as part of their infectious control strategy. Employers also face the risk of lawsuits if employees are infected during mandated travel.
Q: Can employers require employees to disclose their travel plans?
A: Yes, an employer may instruct employees to inform the employer of past or future travel plans in order to allow the employer to reasonably evaluate the risk to other employees or customers.
Q: Can employers require employees to disclose whether employees or their family members have COVID-19?
A: Yes, under the ADA and during a pandemic, an employer may require employees to disclose whether they or their family members have been exposed to COVID-19. According to EEOC Pandemic Guidance, “If an influenza pandemic becomes more severe or serious according to the assessment of local, state or federal public health officials, ADA-covered employers may have sufficient objective information from public health advisories to reasonably conclude that employees will face a direct threat if they contract pandemic influenza. Only in this circumstance may ADA-covered employers make disability-related inquiries or require medical examinations of asymptomatic employees to identify those at higher risk of influenza complications.”
Q: Can employers ask an employee why he or she has been absent from work if the employer suspects it is for a medical reason?
A: Yes, under the ADA and during a pandemic, asking why an individual did not report to work is generally permitted and not a disability-related inquiry.
Q: Can employers prohibit employees from returning to work until after the incubation period has passed?
A: In certain circumstances, yes. We recommend that these matters be evaluated carefully on a case-by-case basis. For instance, if the employee traveled to an area with an elevated risk of exposure or came into contact with large numbers of people, reasonable restrictions are likely permitted under these circumstances.
Q: Can employers require employees who have been self-quarantined to provide a doctor’s note verifying that they do not have COVID-19?
A: As an infectious control strategy, yes. But also note the following EEOC guidance: “As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.”
Q: Can employers require employees to exhaust vacation time or paid time off (PTO) in the event of an office closure due to COVID-19? (UPDATED 3/26/2020)
A: Yes, according to recent guidance from the Department of Labor, employers may require employees exhaust vacation time or PTO in the event of a business closing. Providing vacation or PTO time is not mandatory under federal law, but if the employer offers such a program to employees, it may direct when an employee takes the time off. The employee must be paid his or her guaranteed wages when taking this vacation time or PTO.
However, please note that under the Families First Coronavirus Response Act, an employer cannot require that an eligible employee take vacation or PTO time under the employer’s existing policies prior to taking emergency paid leave time. Please see our previous article to see which employees are considered eligible under the Act.
Q: Can employers require employees to exhaust vacation time or paid time off (PTO) in the event that the employee is sent home from work due to COVID-19? (UPDATED 3/26/2020)
A: No, under the Families First Coronavirus Response Act, an employer cannot require that an eligible employee take vacation or PTO time under the employer’s existing policies prior to taking emergency paid leave time under the Act. Please see our previous article to see which employees are considered eligible under the Act.
Q: May an employer opt to pay an asymptomatic employee who has self-quarantined, even if the employer’s policy does not provide for paid leave and they do not apply for any paid leave under the Families First Coronavirus Response Act? (ADDED 3/26/2020)
A: Yes. If they do, employers should clearly establish any deviation from their normal policies and send specific instructions as to how and when the deviations will apply. In fact, some employers are already taking these steps to boost employee morale during the pandemic.
Q: Are employers required to pay employees that are self-quarantined? (UPDATED 3/16/2020)
A: Under the Fair Labor Standards Act (FLSA), an employer generally is required to pay nonexempt employees only for the time worked and exempt employees their weekly salary in any workweek in which they performed any work. Thus, non-exempt employees are not entitled to compensation if they were quarantined and performed no work. An exempt employee who performs no work during a work week is also not entitled to compensation. However, new legislation in response to the Coronavirus may change these rules. The current version of the Families First Coronavirus Response Act, as passed by the House, would amend the Family and Medical Leave Act (“FMLA”). This provision, entitled the Emergency Family and Medical Leave Expansion Act, would provide government employees and employees of employers with fewer than 500 employees, who have been on the job for at least 30 days, with the option to take up to 12 weeks of job-protected leave. These 12 weeks could be used to: (1) adhere to a requirement or recommendation to quarantine due to exposure to or symptoms of coronavirus; (2) to care for an at-risk family member who is adhering to a requirement or recommendation of quarantine to due to exposure to or symptoms of coronavirus; or (3) to care for a child of an employee if the child’s school or place of care has been closed, or child care is unavailable, due to coronavirus. The first 14 days of leave may be unpaid (but employees can elect to substitute two weeks of paid leave pursuant to the Emergency Paid Sick Leave Act, below), but following those first 14 days, employers must provide paid leave that is at least 2/3 of the employee’s regular rate. This provision would take effect no later than 15 days after the bill’s enactment, following the approval of the Senate and being signed by the president. Beyond the FMLA, the Families First Coronavirus Response Act also includes the Emergency Paid Sick Leave Act. This provision would require government employers and employers with fewer than 500 employees to provide employees two weeks of paid sick leave, paid at the employee’s regular rate, to quarantine or seek a diagnosis or preventative care for coronavirus. Full time employees would be entitled to two weeks, or 80 hours, of paid sick time, and part-time employees would be entitled to the typical number of hours usually worked in a regular two-week period. This Emergency Paid Sick Leave Act is not enforceable unless and until approved by the Senate and signed into law by the president, and additionally has a sunset date of December 31, 2020. Under the current version of the Families First Coronavirus Response Act, employers may receive a refundable tax credit equal to 100% of qualified paid sick leave wages paid by an employer, or equal to 100% of qualified family leave wages paid by an employer. In addition, small businesses (meaning businesses that employ fewer than 50 employees) can be reimbursed for wages paid to employees who are utilizing sick time, so long as certain paperwork evidencing the wages paid and the duration of the sick leave is produced. Unless and until such amendments take place, if any employees—exempt or non-exempt—perform work remotely during a quarantine, then the employer is required to compensate them (nonexempt employees should be paid for the actual time worked; exempt employees should be paid their full salary for the relevant week). However, in certain states, payment for the quarantine period may be required (such as California). Notwithstanding the above, employers may decide for non-legal reasons, such as employee retention or employee morale, to pay quarantined employees for some or all of the time they out, whether or not they performed work. This issue should be addressed carefully on a case-by-case basis.
Q: How do we handle employees who report feeling ill at work or who call in sick?
A: Employers are generally permitted to ask such employees if they are experiencing influenza-like symptoms in order to evaluate the overall risk and how to respond. The ADA requires you to keep all the information about the employee illness confidential.
Q: Can employers send employees home if they display influenza-like symptoms?
A: Yes. The guidance issued by both the CDC and WHO state that employees displaying such symptoms should leave the work-place. Please reference your CBA if the workforce is unionized or your employer hand-book to ensure compliance with any additional requirements.
Q: Can employers require employees to work remotely?
A: As an infectious control strategy, yes. Please reference your CBA if the workforce is unionized or your employer hand-book to ensure compliance with any additional requirements.
Q: Can an employer require employees to wash their hands and follow certain protocols?
A: As an infectious control strategy, yes. Hand washing and proper illness etiquette is generally permitted.
Q: Can employers require employees to wear masks and other protective clothing?
A: As an infectious control strategy, yes; provided however, the employer needs to comply with the ADA and provide reasonable accommodations under the ADA, absent undue hardship.
Q: Does my employer have a duty to protect me from an infectious disease at work?
A: To the extent possible, generally, yes. Federal and state regulations require employers to provide a safe workplace.
Recommended Workplace Interventions*:
- Implement a “no handshaking” policy
- Utilize videoconferencing as a default for meetings
- Defer large meetings
- Hold necessary meetings outside in open air, if possible
- Promote proper cough and sneeze etiquette (but focus is on excluding ill staff)
- Enforce sanitization of hands at entrances
- Send regular hand sanitation schedule reminders via email
- Enforce lunch at desk rather than in break room
- Gamify hygiene rules e.g. to discourage touching face
- Those who are sick (with undiagnosed respiratory illness or fever) stay at home and ill workers are immediately isolated
- Staff with sick household members should stay at home
- Disinfect high touch surfaces regularly and between users
- Work from home where possible and consider staggering of staff where there is no loss of productivity from remote work
- Consider opening windows and adjusting air conditioning, as there is evidence that low temperature/low humidity may enhance survival of the virus
- Limit food handling and sharing of food in the workplace
- Assess staff business travel risks
- Enhance hygiene and screening for illness among food preparation staff and their close contacts
- Analyze the root cause of crowding events on site and prevent through rescheduling, staggering, cancelling
*For more recommendations, see Dalton, et. al. Pre-Emptive Low Cost Social Distancing and Enhanced Hygiene Implemented before Local COVID-19 Transmission Could Decrease the Number and Severity of Cases. For further information, contact KJK Managing Partner Jon Pinney (216.736.7260; jjp@kjk.com), Labor & Employment Chair Rob Gilmore (216.736.7240; rsg@kjk.com) or Healthcare Chair Kate Hickner (216.736.7279; keh@kjk.com). The forgoing guidance expressly contemplates the declaration of a pandemic and is not applicable otherwise under relevant federal and state law. According to the EEOC, during a pandemic, the ADA and Rehabilitation Act rules continue to apply, but they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC about steps employers should take regarding the Coronavirus. Prior to making any decisions, please reference relevant federal and state law and guidance, some of which is referenced below: OSHA Guidance on Preparing Workplaces for COVID-19: https://www.osha.gov/Publications/OSHA3990.pdf OSHA general guidance on COVID-19: https://www.osha.gov/SLTC/covid-19/ CDC Interim Guidance for Businesses and Employers: https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fspecific-groups%2Fguidance-business-response.html Statement from EEOC: What You Should Know About the ADA, the Rehabilitation Act and the Coronavirus: https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm Pandemic Preparedness in the Workplace and the Americans with Disabilities Act: https://www.eeoc.gov/facts/pandemic_flu.html