This article was written with information available on March 13, 2020. View an updated article published on March 16, 2020:
House Passes Families First Coronavirus Response Act – FFCRA would make emergency changes to the FMLA and create the Emergency Paid Sick Leave Act
Original March 13, 2020 article
The World Health Organization recently categorized the coronavirus disease 2019 (“COVID-19”) a pandemic. As countries the world over have scrambled to minimize the spread of the disease, the United States is in the beginning throws of its decisions in this regard. Visit the Centers for Disease Control (“CDC”) website for updated data related to the virus.
Given the emerging issue, local, state, and federal government actors are making decisions and issuing guidance that affect your workplace and inform your own decision-making as employers. In addition to ongoing guidance and directives, numerous laws and regulations already on the books impact your options and best practices. In terms of lawful and wise business practices and considerations, here are 12 basic principles to follow now:
1. You can mandate employees to stay home and/or send them home if they are sick. Employees who have noticeable symptoms of acute respiratory illness (e.g. cough, shortness of breath, trouble breathing) and/or a fever can be lawfully directed to stay home and not come to work until they are free of fever and any other symptoms for at least 24 hours, without use of fever-reducing or other symptom-altering medicines (e.g., cough suppressants). Tell them they are to follow normal call-in procedures.
2. You can mandate symptom-free, but recently exposed employees to stay home. This would include: (1) employees caring for someone with a confirmed case of COVID-19; (2) employees living in close proximity with such a person; and (3) employees who have recently traveled to a CDC-level three country (right now, China, Iran, South Korea, and most of Europe). Visit the CDC website for an updated list. To the extent you want to be proactive, you can inquire about recent travel, as this is not in and of itself a medical-related inquiry. For countries at the CDC level-three alert level, the CDC recommends 14 days of staying at home and practicing social distancing. You could require a 14-day self-quarantine and not having a fever without use of fever-reducing drugs before returning to work for each of these symptom-free but recently exposed categories of employees.
3. You are not required to pay non-exempt employees for time off work. To the extent any new practice implemented impacts a non-exempt employee and requires them to stay away from work, you are not required to pay them. You can, of course, permit them to use any unused, accrued paid leave benefits to cover the time.
4. You are not required to pay salaried-exempt employees for full weeks off work. To the extent an exempt employee works at all during a work week in which such employee is required to stay away from work because of COVID-19 concerns, you should pay that employee’s full salary for the week. The same is not true of any full work week of absence in which no work is performed.
5. COVID-19 may be considered FMLA-covered. If it meets the serious health condition criteria, an employee’s bout with COVID-19 might qualify for FMLA leave. Be sure to check your FMLA leave policy.
6 . Medical inquiries in the hiring process DO NOT CHANGE.
a. Regardless of the emerging situation, you cannot lawfully make medical inquiries before making an offer of employment. This remains unchanged.
b. Post-offer of employment but prior to an initial start date, you can make medical inquiries that are job-related and consistent with medical necessity. Any such inquiry should be non-discriminatory (i.e., apply to all employees in the same job classification).
7. Questions you may ask current employees, during their employment, you:
a. May ask an employee who returns from traveling if they have developed COVID-19 like symptoms (acute respiratory issues and/or fever). You must keep the information you receive confidential.
b. Cannot ask employees if they have a medical condition that would make them especially prone to influenza or related complications.
c. Assuming a viable vaccine is created, cannot compel employees to take a COVID-19 vaccine.
8. You may notify individuals (other employees, customers, business partners) if they have been in contact with a person who has been diagnosed with COVID-19. If you learn an employee or customer had COVID-19 and interacted with other employees or customers, you may contact the individuals with whom the diagnosed person interacted, but you cannot identify the infected individual or disclose his or her identifying information.
9. You should distribute literature about respiratory etiquette and hand hygiene to all employees and require employees to follow these infection control protocols. Promoting healthy work sites and practical methods to reduce the spread of germs is encouraged. You may want to schedule telephone calls and video-conferencing in lieu of in-person meetings where possible as well and reconsider ordinary business practices in light of the best tips and practices that you promote and distribute.
10. You may screen visitors to protect the safety of employees, customers, and other visitors. An appropriately tailored questionnaire may be wise for your office or business. Any questionnaire should avoid unlawfully discriminating against visitors and patrons.
11. You must record/report a COVID-19 workplace illness per OSHA requirements. If OSHA recording and reporting requirements already apply to you and your business, COVID-19 in the workplace should be treated the same as any other illness or injury you are required to record/report.
12. If an employee believes he or she obtained COVID-19 in the course of employment, he or she should file a Worker’s Compensation Claim. The requirements for meeting an occupational disease under the Worker’s Compensation Statute are quite stringent, but employees who believe they contracted COVID-19 in the course of employment should follow the same procedures as any other alleged workplace injury or illness.
The attorneys of Bose McKinney & Evans LLP are available to answer your questions, provide guidance, and help you draft new policies, update policies, or create visitors’ questionnaires for your business in light of the ongoing developments involving this pandemic.