Rina RussoMax RiekerMarch 10, 2020

As COVID-19 (coronavirus) spreads into Ohio, it’s important for employers to be prepared in their response to employees who are sick and be ready for the impact of the virus on the workplace.

According to the Centers for Disease Control and Prevention (“CDC”), typical COVID-19 symptoms include fever, cough, and shortness of breath, which seem to present within 2-14 days after exposure. The potentially long incubation period makes prompt detection more difficult.  The illness is spread both by close person-to-person contact and through touching surfaces or objects that have the virus on them and then touching one’s own eyes, nose, or mouth.

At this time, there are now several confirmed cases in Northeast Ohio. Additional testing of individuals may also reveal more cases in Ohio and around the country. The only way to conclusively determine whether a particular respiratory illness is COVID-19 is through laboratory testing.

WHAT SHOULD EMPLOYERS DO?

Send Sick Employees Home

If an employer observes an employee exhibiting the symptoms of COVID-19, the employer should immediately separate and send the employee home. At this point, there is no way for an employer to reliably or independently verify that an employee has COVID-19 without obtaining a positive laboratory test result.

According to the Equal Employment Opportunity Commission (“EEOC”) pandemic guidance, taking an employee’s temperature is considered a “medical examination” under the Americans with Disabilities Act (“ADA”). Further, as a high temperature is not present in all individuals infected with COVID-19, requiring employees to submit to a temperature check is not advised at this time. Instead, all employees exhibiting symptoms of respiratory illness should be sent home.

Affected employees should be permitted to use applicable paid or unpaid time off in accordance with the employer’s policies and any collective bargaining agreement that may be in place.  Employers should also evaluate other possible paid or unpaid leave time available to sick employees pursuant to applicable federal, state, or local laws, subject to the requirements of the Fair Labor Standards Act (FLSA). Generally, non-exempt employees must only be paid for hours worked. However, exempt employees must be paid for an entire workweek for which they perform any work for their employer.

Encourage Good Hygiene and Enforce Workplace Cleaning

 Employers should remind employees to practice respiratory etiquette by coughing or sneezing into an elbow, hand, or tissue.  Employees should be reminded to thoroughly wash their hands and avoid touching their eyes, noses, or mouths.

Employers should continue vigilant workplace cleaning and disinfecting practices to eliminate viruses and other bacteria from surfaces and objects.

 Practice Social Distancing When Possible

As medical experts promote social distancing in an effort to stop the spread of COVID-19, employers should consider whether employees can work remotely. While this may not be an option for all employees, employers should consider whether in-person meetings can take place remotely by phone or video conference. Employees that can perform their job duties remotely should do so. Where employees cannot perform their job duties remotely, employers can consider staggered shifts to limit close contact between employees.

Limit Business Travel

Employers should consider limiting, restricting, or postponing all non-essential business travel to affected countries. Employers should regularly consult the CDC Travel Health Notices and the State Department Travel Advisories to determine what travel should be avoided.

Have a Response Plan Ready

Employers need to be ready to implement a response plan should an outbreak be identified in their area. This plan must include communicating with all employees should an employee become ill with COVID-19, while keeping the employee’s identity confidential. All employees who worked closely with an infected employee should be sent home and kept from returning to work for a 14-day period to prevent spread of the infection. Employers should be ready to institute remote work or altered work schedules to ensure uninterrupted business operations to the extent possible.

Rina Russo is a partner with Walter | Haverfield who focuses her practice on labor and employment law. She can be reached at 216-928-2928 or at rrusso@walterhav.com.

Max Rieker is an associate at Walter |Haverfield who focuses his practice on labor and employment law. He can be reached at mrieker@walterhav.com or at 216-928-2972.