Rina RussoMax RiekerMarch 15, 2020

The coronavirus (COVID-19) crisis is evolving on a daily basis. On March 11, 2020, the World Health Organization (WHO) has declared the outbreak a pandemic. Government agencies, businesses, and employers are all struggling to react as effectively as possible.

This guidance is based on currently known information surrounding COVID-19 and is subject to change should additional information develop. To date, the virus has manifested as a mild to severe fever, cough, sore throat, and difficulty breathing. Click here for guidance on symptoms from the Centers for Disease Control and Prevention (CDC). Symptoms generally appear between two and 14 days from exposure. Mortality rates have been higher among older adults – particularly those with certain preexisting conditions such as heart and respiratory illnesses.  COVID-19 is highly contagious and is believed to be spread both person-to-person and through touching surfaces which have the virus on them.

In Ohio, as well as other states, public health authorities have indicated that there is now “community spread” of COVID-19. According to the CDC, “community spread” means that individuals in an area have been infected with the virus that have no relevant travel history or contacts with a person known to be infected with COVID-19. Due to a certain number of community spread cases being identified in Ohio, public health experts believe that at least 1% of Ohio’s population is already infected with the virus. Furthermore, Ohio public health officials indicated that the number of confirmed cases is likely to double every six days until the crisis is abated.

Any employer’s first concern should be with keeping its employees safe during the pandemic.  This client alert attempts to address many of the basic questions employers may have. However, this information will likely change with the passage of additional federal, state, and local laws aimed at addressing the crisis, and will be updated from time to time on our website.

WHAT DOES OSHA RECOMMEND?

The Occupational Safety and Health Administration (OSHA) recently released COVID-19 guidance. Here are a few simple rules of thumb that public health officials are recommending to further workplace safety:

  • If you have not done so already, reinforce basic handwashing, sneezing, and coughing etiquette with employees.
  • Provide alcohol-based hand sanitizer in the workplace, if possible.
  • Take steps to regularly clean frequently touched surfaces.
  • Practice social distancing in the workplace.
  • Keep symptomatic employees out of the workplace.
  • Limit employee travel.
  • Do not plan or attend in-person meetings or events with a significant number of participants.
  • Permit employees to work from home to the extent possible and practicable.

CAN WE RESTRICT OR PROHIBIT BUSINESS TRAVEL TO AFFECTED COUNTRIES OR AREAS?

Employers can limit or prohibit business travel to affected countries or areas. Employers should regularly consult the CDC Travel Health Notices and the State Department Travel Advisories to determine what travel should be avoided.

CAN WE PROHIBIT EMPLOYEES FROM TRAVELING FOR PERSONAL REASONS?

If personal travel is to a “high risk” country or area per CDC guidance, the employer may advise the employee about the risks of travel, and a possible 14-day quarantine upon return.  Additionally, while the employer cannot prohibit the travel, the employer may deny time off for an employee’s personal travel, as long as the denial is based on the high risk destination, the business cost of any resulting quarantine thereafter, or other legitimate business reasons, and not on the national origin of the employee or other discriminatory reason.

 CAN WE REQUIRE EMPLOYEES TO WORK FROM HOME?

Generally, yes, employers can require employees to work from home. Employers can and should determine what employees can perform their essential job duties from home. When requiring employees to work from home, employers should be careful not to base their decisions on any potentially discriminatory reason, such as age or disability. For example, employers should not require that only employees over the age of 60 work from home, even though COVID-19 is known to affect the over 60 population more severely.

WHAT ABOUT EMPLOYEES THAT CANNOT WORK FROM HOME?

Certain employees may not be able to work from home as their job duties require on-site attendance. For those employees, and in order to assist in the effort to slow the spread of COVID-19, employers can require employees to take the advice of public health officials and require employees to stay at least six (6) feet apart while at work, to the extent possible.  Additionally, employers may consider implementing staggered shifts so employee contact is kept at a minimum.

Employers should also encourage employees to frequently wash their hands, provide alcohol-based hand sanitizer and disinfectant wipes, amp up environmental cleaning, regularly clean and disinfect frequently touched surfaces and objects. Employers should aim to not plan or require in-person attendance at meetings or events with a significant number of participants.

CAN AN EMPLOYER REQUIRE A SICK EMPLOYEE TO STAY HOME?

Yes. If an employee has symptoms of COVID-19 or an employer is aware that an employee has contracted COVID-19, the employer can send the employee home and require that the employee stay home until recovered. During previous infectious disease crises, the Equal Employment Opportunity Commission (EEOC) has expressed that requiring employees to go home is not disability-related if an employee was symptomatic.

CAN AN EMPLOYER TAKE AN EMPLOYEE’S TEMPERATURE AT THE WORKPLACE?

As a practical matter, a person may be infected with COVID-19 and not have a fever. Thus, taking an employee’s temperature is not necessarily a reliable indicator of whether he or she poses a risk to the workforce. That being said, there are legal restrictions to taking an employee’s temperature in the workplace. The EEOC considers this a medical examination under the Americans with Disabilities Act. The law prohibits an employer from requiring a medical examination and making a disability-related inquiry unless (1) the examination 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 employee or others and cannot otherwise be eliminated or reduced through a reasonable accommodation.

According to the EEOC’s prior guidance with regards to pandemic influenza (which it recently referred employers to with regards to the COVID-19 pandemic), if the virus becomes widespread in the employer’s community or when symptoms become more severe than the seasonal flu or the flu during the H1N1 pandemic of 2009, such temperature checks may be permissible.

In any event, employers can encourage employees to monitor their own temperature to ensure they are exhibiting no symptoms of COVID-19 prior to reporting to work.

WHAT DO WE DO IF AN EMPLOYEE TESTS POSITIVE FOR COVID-19?

The most important thing an employer can do if an employee has tested positive is to make sure the employee is separated from the workforce and remains home until recovered. All other employees who were exposed to the infected employee for at least 14 days prior to symptom manifestation should likewise be sent home for at least the full incubation period. Some inquiry may be required in order to properly identify individual employees at risk. During such inquiry, employers should not identify the infected employee or employees.

WHAT IF WE SUSPECT THAT AN EMPLOYEE HAS BEEN EXPOSED TO COVID-19?

If you reasonably suspect that an employee has COVID-19, but have no such confirmation, you may ask an employee about potential exposure as exposure is not a medical condition. If the employee admits to being exposed, you may require the employee to go home and not report back to work for a period of 14 days.

If an employee is displaying respiratory symptoms of COVID-19 or admits to having such symptoms, employers should separate the employee from others immediately and send the employee home.

CAN WE REQUIRE MEDICAL CERTIFICATION BEFORE AN EMPLOYEE RETURNS TO WORK AFTER BEING DIAGNOSED WITH COVID-19?

Yes, generally employers can ask for a return to work statement from a medical provider before having the employee return to work, as long as it is the employer’s practice to require such a statement. Certain state and local laws may prohibit such a request based on the number of days absent.

 IF AN EMPLOYEE IS SENT HOME OR DOES NOT WORK BECAUSE OF COVID-19, DO WE STILL HAVE TO PAY THEM?

For hourly workers under the Fair Labor Standards Act (FLSA), the general answer is “no.”  Employers are only required to compensate employees for hours worked. However, salaried workers may be required to be paid for the entire week for any workweek in which they perform any work for their employer. If the exempt employee does not perform any work for his/her employer during a particular workweek, the employer does not have to pay the employee his/her salary for that workweek.

Employers may be required to compensate employees for accrued sick leave, vacation leave, or other paid time off pursuant to established policy.

Be mindful of employment contract and collective bargaining agreement (CBA) provisions dealing with wage obligations and their interaction with various time away from work designations. If an employee is under contract or subject to a CBA, those contractual provisions may control.

Additionally, it is expected that United States Congress will pass a new law requiring paid sick leave for various reasons related to the COVID-19 pandemic. We will update our guidance on this issue once such law is in effect.

WHAT ABOUT THE FAMILY AND MEDICAL LEAVE ACT?

Contracting COVID-19 may be an FMLA-qualifying event if the time off otherwise qualifies under the statute. The basic precepts of the FMLA are unchanged as a result of the outbreak. Employers and employees must still go through the standard FMLA procedures and analysis.

Employees are not legally entitled to avail themselves of FMLA leave in an effort to stay home to avoid contracting a communicable disease. However, given the unusual nature of the COVID-19 situation, employers may be well-served to create certain paid or unpaid time off from the workplace that will not result in job loss or adverse action, regardless of FMLA or other state or local leave laws.

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

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.