I. Background and General Guidance
On January 31, 2020, Health and Human Services Secretary Alex M. Azar II declared a public health emergency (PHE) for the United States to aid the nation’s healthcare community in responding to COVID-19.[i] On March 11, WHO publicly characterized COVID-19 as a pandemic. On March 13, the President of the United States declared the COVID-19 outbreak a national emergency. [ii] There are now 1,629 confirmed cases in the United States including 41 deaths among 47 jurisdictions (46 States and the District of Columbia.[iii]
Employers are now recognizing that they have an obligation to take affirmative steps to address employee concerns and protect their workforce from spreading or contracting Coronavirus. Employers not only face an ethical imperative, but the Occupational Safety and Health Administration (“OSHA”) imposes a legal duty on employers to provide employees with a workplace that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”[iv] OSHA’s guidance has, in recent days, including updated requirements and recommendations for employers.[v]
The solution to preparing for the Coronavirus in your workplace is based in common-sense and should be treated just like any other important area of any business. Employers should develop a policy outlining the company’s plan to deal with an outbreak amongst its workforce and develop and implement clear and concise procedures for implementing the policy. The CDC provides employers with a common-sense list of recommended strategies to implement now:[vi]
- Actively encourage sick employees to stay home:
- Employees who have symptoms of acute respiratory illness are recommended to stay home and not come to work until they are free of fever (100.4° F [37.8° C] or greater using an oral thermometer), signs of a fever, and any other symptoms for at least 24 hours, without the use of fever-reducing or other symptom-altering medicines (e.g. cough suppressants). Employees should notify their supervisor and stay home if they are sick.
- Ensure that your sick leave policies are flexible and consistent with public health guidance and that employees are aware of these policies.
- Talk with companies that provide your business with contract or temporary employees about the importance of sick employees staying home and encourage them to develop non-punitive leave policies.
- Do not require a healthcare provider’s note for employees who are sick with acute respiratory illness to validate their illness or to return to work, as healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely way.
- Employers should maintain flexible policies that permit employees to stay home to care for a sick family member. Employers should be aware that more employees may need to stay at home to care for sick children or other sick family members than is usual.
- Separate sick employees:
- CDC recommends that employees who appear to have acute respiratory illness symptoms (i.e. cough, shortness of breath) upon arrival to work or become sick during the day should be separated from other employees and be sent home immediately. Sick employees should cover their noses and mouths with a tissue when coughing or sneezing (or an elbow or shoulder if no tissue is available).
- Emphasize staying home when sick, respiratory etiquette and hand hygiene by all employees:
- Place posters that encourage staying home when sick, cough and sneeze etiquette, and hand hygiene at the entrance to your workplace and in other workplace areas where they are likely to be seen.
- Provide tissues and no-touch disposal receptacles for use by employees.
- Instruct employees to clean their hands often with an alcohol-based hand sanitizer that contains at least 60-95% alcohol, or wash their hands with soap and water for at least 20 seconds. Soap and water should be used preferentially if hands are visibly dirty.
- Provide soap and water and alcohol-based hand rubs in the workplace. Ensure that adequate supplies are maintained. Place hand rubs in multiple locations or in conference rooms to encourage hand hygiene.
- Visit the coughing and sneezing etiquette and clean hands web page for more information.
- Perform routine environmental cleaning:
- Routinely clean all frequently touched surfaces in the workplace, such as workstations, countertops, and doorknobs. Use the cleaning agents that are usually used in these areas and follow the directions on the label.
- No additional disinfection beyond routine cleaning is recommended at this time.
- Provide disposable wipes so that commonly used surfaces (for example, doorknobs, keyboards, remote controls, desks) can be wiped down by employees before each use.
- Advise employees before traveling to take certain steps:
- Check the CDC’s Traveler’s Health Notices for the latest guidance and recommendations for each country to which you will travel. Specific travel information for travelers going to and returning from China, and information for aircrew, can be found on the CDC website.
- Advise employees to check themselves for symptoms of acute respiratory illness before starting travel and notify their supervisor and stay home if they are sick.
- Ensure employees who become sick while traveling or on temporary assignment understand that they should notify their supervisor and should promptly call a healthcare provider for advice if needed.
- If outside the United States, sick employees should follow your company’s policy for obtaining medical care or contact a healthcare provider or overseas medical assistance company to assist them with finding an appropriate healthcare provider in that country. A U.S. consular officer can help locate healthcare services. However, U.S. embassies, consulates, and military facilities do not have the legal authority, capability, and resources to evacuate or give medicines, vaccines, or medical care to private U.S. citizens overseas.
- Additional Measures in Response to Currently Occurring Sporadic Importations of the COVID-19:
- Employees who are well but who have a sick family member at home with COVID-19 should notify their supervisor and refer to CDC guidance for how to conduct a risk assessment of their potential exposure.
- If an employee is confirmed to have COVID-19, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the Americans with Disabilities Act (ADA). Employees exposed to a co-worker with confirmed COVID-19 should refer to CDC guidance for how to conduct a risk assessment of their potential exposure.
In addition to following the CDC’s recommendations, Employers should also be aware of the many potential pitfalls that can trip up employers when enacting protocols pertaining to contagious illness in the workplace, including state-specific employment laws, Equal Employment Opportunity Commission (EEOC) Rules and Regulations, and OSHA. In particular, employers should be mindful of issues arising under the ADA, such as maintaining confidentiality of health-related information, determining whether absences due to illness or quarantine are job-protected, deciding whether work-from-home arrangements or other accommodations are required, and deciding whether contagious illness may be considered a “direct threat” to workplace safety. While the EEOC has released helpful guidance on dealing with these issues, it is always best to consult counsel to obtain advice specific to your jurisdiction as well as to your unique operations and workforce.
That said, navigating the Family Medical Leave Act (FMLA) and the ADA can be difficult. During a pandemic health crisis, employers must respond quickly to a fluid landscape and adapt to the needs of their employees and business. Significantly, employers need to stay abreast of any legislation enacted in response to the current pandemic. For example, the “Families First Coronavirus Response Act,” (H.R. 6201), discussed below, is currently pending before the Senate, and if passed, will provide 12 weeks of job-protected paid Family and Medical Leave Act (FMLA) leave—of which the first 14 days may be unpaid—for employees of employers with fewer than 500 employees. At the time of publication, this legislation has not been enacted.
II. Americans with Disabilities Act (ADA) and Family Medical Leave Act
The FMLA and ADA apply to employees who need to be absent from work due to a COVID-19 illness or caring for family members who are impacted and employees who wish to return to work following illness or exposure. In addition, employers should evaluate any applicable state-specific laws similar to FMLA or ADA to ensure they do not contain different or additional requirements or provisions.
COVID-19 typically will not be considered a disability under the ADA as its symptoms are of short duration; however, complications from COVID-19 may qualify as an ADA disability. Regardless, the ADA regulates employers’ disability-related inquiries and medical examinations for all employees, including those who do not have ADA disabilities. Under the ADA, an employer must show the inquiry is job-related and consistent with business necessity or there is a reasonable belief that the employee poses a direct threat to the health or safety of the individual or others. The EEOC’s guidance indicates that the assessment by the CDC would provide the objective evidence needed for a disability-related injury or medical examination. Thus, given the CDC’s latest assessment of pandemic, if an employee’s situation meets the ADA’s “direct threat” standards, an employer can conduct a medical inquiry or require a return-to-work doctor’s note. For example, it would likely be permissible to conduct a medical inquiry where an employee who was previously diagnosed with, or in close contact with, an individual with COVID-19 wishes to return to work. Again, the EEOC provides the following guidance.
In addition, employees who are absent from the workplace due to a diagnosis of COVID-19 or employees who stay home to care for a family member with COVID-19 may be eligible for FMLA protected leave under some conditions. The FMLA entitles eligible employees of covered employers to take up to 12 weeks of unpaid, job-protected leave in a designated 12-month leave year for specified family and medical reasons. This may include COVID-19 where complications arise that create a “serious health condition” as defined by the FMLA. Employees on FMLA leave are entitled to the continuation of group health insurance coverage under the same conditions as coverage would have been provided if the employee had been continuously employed during the leave period. The Department of Labor (DOL) provides information regarding COVID-19 and the FMLA: https://www.dol.gov/agencies/whd/fmla/pandemic
However, if the employee’s symptoms and treatment for COVID-19 does not satisfy the regulatory definition of a “serious health condition,” employers should not count the absence against the employee’s 12 weeks of FMLA leave. For example, employees who do not seek health care treatment for symptoms related to COVID-19 will not qualify as a serious health condition simply because the employees will not have visited a doctor/healthcare provider for any treatment. In addition, absences for employees who want to prevent exposure to COVID-19 are not qualifying FMLA absences.
All employers should be mindful of the public health risks associated with COVID‑19. Employers’ response should be based upon facts, proportionate to the actual risks, and should be mindful of the need to remain compliant with existing employment and labor laws and regulations.
III. Employee Travel, Quarantine and Paid Time Off
Employers must also consider implementing procedures for employee travel and employee self-quarantine. The following are factors employers should consider:
- Employers should encourage employees to limit business travel to locations with widespread COVID-19 community transmission.
- Employers should consider implementing a self-quarantine policy. Request that any employee self-quarantine (remain at home) for 14 days if:
- The employee (or anyone in their household): 1) Has traveled since March 1 to another country that has been given a risk assessment of Level 2 or higher by the CDC; 2) Has been exposed to someone with a confirmed case of COVID-19; 3) Has traveled since March 1 to Westchester County, New York; Santa Clara County, CA; Seattle-King, Pierce or Snohomish Counties in Washington; or any other location with widespread COVID-19 community transmission; or 4) Has traveled since March 1 on a cruise ship.
- Encourage anyone traveling for business to consider, prior to their departure, putting measures in place to work from home should they need to be self-quarantined upon return.
- Employers should work to expand telework options for self-quarantined employees.
- Be flexible with leave policies and ensure the policies are up to date with public health guidelines.
- Employees affected by the self-quarantine restrictions should be allowed to use any accrued, but unused paid time off (PTO) during leave.
IV. Federal Legislation and Employee Leave
President Trump signed into law the economic stimulus bill aimed at curbing the impact of COVID-19 on businesses and individuals. Earlier this week, the U.S. House of Representatives unanimously passed a corrected version of the COVID-19 response bill, H.R. 6201, the Families First Coronavirus Response Act. The U.S. Senate overwhelmingly passed that same bill earlier today. The Act will go into effect no later than 15 days after the date of enactment.
The Act speaks to five distinct areas of relief-1) Free Coronavirus Testing; 2) Food Assistance; 3) Medicaid FMAP rates; 4) Unemployment Aid; and 5) Paid Sick and Medical Leave.
As it pertains to labor and employment matters affecting businesses*:
Emergency Family Leave
The Act provides that private-sector employers with fewer than 500 employees, and covered public-sector employers, must provide up to 12 weeks of job-protected FMLA leave for “a qualifying need related to a public health emergency.” Only employees who have been on the payroll for 30 calendar days are eligible for this leave. The Secretary of Labor is also granted authority to draft regulations which will exempt businesses with fewer than 50 employees if the requirements would jeopardize the viability of the business as a going concern. Employers can also exclude healthcare workers and first responders from the leave allowed under this Act.
The definition of “qualifying need” is limited to situations where an employee is unable to work due to the need to care for a minor child if the minor child’s “school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.”
The first 10 days of this emergency FMLA leave can be unpaid, but employers are required to pay employees for the remainder of the leave. The Act requires that the employee be paid for the number of hours the employee would otherwise be scheduled to work at a rate of two-thirds of the employee’s regular rate. The Act caps these payment to individual employees to no more than $200 per day and $10,000 in total. While an employee may elect to utilize vacation, sick, or other personal paid leave, an employee cannot be forced to use paid leave.
Like regular FMLA leave, an employer must restore employees who utilize emergency FMLA leave to their prior positions or an equivalent position. This job protection, however, does not apply to employers with fewer than 25 employees, if (i) the employee’s position no longer exists following leave due to economic conditions, or (ii) other operational changes caused by a public health emergency (e.g. COVID-19).
Paid Sick Leave
In addition to Emergency Family Leave, the Act also provides paid sick leave.
Private-sector employers with fewer than 500 employees, and covered public-sector employers, must provide 80 hours of paid sick time to an employee (of any tenure) who is unable to work (or telework) because: (1) the employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19; (2) the employee has been advised by a health care provider to self-quarantine because of COVID-19; (3) the employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis; (4) the employee is caring for an individual who is subject to, or advised to, quarantine or isolate; (5) the employee is caring for a son or daughter whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 precautions; or (6) the employee is experiencing substantially similar conditions as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.
Employers may elect to exclude healthcare providers or first responders from this paid leave. The Secretary of Labor is also granted authority to draft regulations which will exempt businesses with fewer than 50 employees if the requirements would jeopardize the viability of the business as a going concern.
Limits on Pay
During paid sick leave, employers are required to pay employees their regular rate of pay or minimum wage, whichever is greater; however, if the leave is to care for a family member, then the employee is entitled to only two-thirds of that amount. The Act places limits on this paid leave to $511 per day or $5,110 in the aggregate where leave is taken for reasons generally related to the employee’s health. The limits on pay are $200 per day and $2,000 in the aggregate where leave is generally related to the care of others, including childcare.
The Act prohibits an employer from retaliating against any employee who takes leave in accordance with the provisions of the Act. Failure to pay this sick leave will be a violation of the Fair Labor Standards Act similar to a failure to pay minimum wage.
Monetary Relief for Employers
Employers that are required to offer Emergency FMLA or paid sick leave will be eligible for tax-credits in an amount equal to 100% of the qualified sick leave wages paid under this Act. We also expect the Department of Treasury to take some other tax relief actions, as well as actions to allow small businesses to access funds to assist with cash flow problems.
We anticipate a stimulus package aimed at small businesses and industries will be revealed soon.
We are actively monitoring any new legislation and will provide updates as they become available.
*Note: Articles covering the details of the Act’s other provisions can be found here.
V. Telework Policies
Before implementing a telework policy in response to COVID-19, an employer should consider the following issues:
- Is the Employer Equipped To Offer Telework?
- Telework depends upon reliable and fast connections. A common reason for telework dissatisfaction is IT failure. An initial question to ask is whether an employer presently has the technology, equipment and capability to set up and support multiple employees working from remote locations, without risking the security of its network and confidential information. The IT department should be consulted to ensure that the employer has the technology and IT personnel to support a telework initiative.
- Which Employees Will Be Eligible?
- Telework, as with all workplace policies, must be offered and administered in a manner which does not violate anti-discrimination laws. Not every employee’s job duties will be conducive to telework. If it is not possible to offer temporary telework to all employees, the employer should be mindful to avoid a claim that telework was offered to certain employees based upon a protected category such as sex, age, or race. An effective strategy for avoiding such a claim is to establish eligibility factors for telework based upon considerations such as job duties, department needs, rank, seniority, or other non-discriminatory factors.
- Telework has long been considered a potential reasonable accommodation for individuals with disabilities under the Americans with Disabilities Act (ADA). Should an employee who has an underlying condition that qualifies as an ADA disability request telework as a “reasonable accommodation” out of concern that exposure to COVID-19 could adversely affect his or her disability, an employer give thoughtful consideration to the request. If an employer is allowing similarly situated employees to telework, it would be difficult to establish that allowing a disabled employee to do so would create an “undue burden.”
- How Can An Employer Ensure Accountability?
- In any telework relationship, a certain level of trust is required. However, an employer should communicate its policy and expectations at the outset of the telework arrangement. An employer should set forth the expected hours of work, the form and frequency of any required reports or communication, and the level of productivity expected in a written agreement or acknowledgment signed by the employee. It is particularly important that FLSA non-exempt employees are instructed as to timekeeping procedure and reminded that they are to record every “hour worked.” If employees are allowed to use their personal devices to telework, the policy should address required security measures and any inspection rights the employer may have with regard to those devices. Finally, the policy should highlight the temporary nature of the telework assignment, making clear that the employer may require the employee to return to in-office work at any time and for any reason.
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[i] https://www.cdc.gov/coronavirus/2019-ncov/summary.html (accessed March15, 2020).
[ii] https://www.cdc.gov/coronavirus/2019-ncov/summary.html (accessed March 15, 2020).
[iii] https://www.cdc.gov/coronavirus/2019-ncov/cases-in-us.html (accessed March 15, 2020) (There are confirmed cases in 46 states and the District of Columbia).
[vi] https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/guidance-business-response.html (accessed March 15, 2020)
[vii] https://www.cdc.gov/coronavirus/2019-ncov/downloads/community-mitigation-strategy.pdf (accessed March 15, 2020).