News & Insights
Mar 9, 2020
Soccer matches played to 100,000 empty seats. Marathons with 200 runners in silent streets. Business blocks deserted. Restaurants closed. Those areas hardest hit by coronavirus can look like something out of an apocalyptic movie. And now, just two months after the new type of virus was first identified in China, Coronavirus-2019 (COVID-19) has hit the United States. According to the Centers for Disease Control, coronavirus has been found in over 80 countries and 13 U.S. states, with the number growing every day. The novel disease has set off the kind of public anxiety not seen since the Ebola outbreak of 2014 and H1N1 (swine flu) outbreak of 2009. In this strange new world, what can employers do to protect their workers and businesses?
What is COVID-19?
First things first: COVID-19 is a new strand of coronavirus first identified in Wuhan, China, on January 3, 2020. According to the CDC, “Coronaviruses are a large family of viruses that are common in people and many different species of animals, including camels, cattle, cats, and bats.” The common cold and upper respiratory infections are commonly caused by types of coronaviruses. So are more serious illnesses that have been the cause of past global outbreak crises, like Middle East Respiratory Syndrome (MERS) and Severe Acute Respiratory Syndrome (SARS). The new coronavirus causes a disease called COVID-19.
What are the symptoms and severity of COVID-19?
Much of the anxiety surrounding coronavirus comes from its association with serious illnesses like MERS and SARs, which cause severe illnesses and have high mortality rates. While COVID-19 is not fully understood, it is believed that most cases are mild, with symptoms that look like the a normal respiratory infection: fever, coughing, and shortness of breath. In about 16% of cases, people develop serious illnesses. Like the seasonal flu, older people and people with preexisting conditions are at the greatest risk of developing serious illnesses. As of March 2020, the World Health Organization (WHO) calculates the death rate at about 3.4%. However, it is believed that a large number of people are probably infected but have mild or no symptoms and thus go undiagnosed. The WHO believes that, once they better understand these cases, the death rate number will likely go down.
How does COVID-19 spread?
Experts believe that COVID-19 likely spread to humans from animals and probably originated in bats. Now that it is in humans, it spreads through person-to-person contact, especially through respiratory droplets produced when an infected person coughs or sneezes. There is even at least one case where a dog caught the virus from his infected owner. Luckily, the WHO believes that COVID-19 spreads less efficiently than common viruses like the flu. While you can still catch the flu or common cold from someone who is asymptomatic, the WHO does not believe COVID-19 is widely spread by people who are not sick.
What are employers doing to protect their workers?
The CDC has assured employers that “most American workers are not at significant risk of infection.” Workers in high-risk industries like healthcare, deathcare or mortuary services, laboratories, airline operations, border protection, solid waste and wastewater management, and those involving travel are at the highest risks. To manage these risks, the CDC has issued guidance to businesses recommending that employers actively encourage sick employees to stay home, emphasize to all employees the importance of staying home when sick and practicing good hand hygiene, perform routine environmental cleaning, advise employees of safe practices for traveling, and ask that employees notify the employer about infected family members or other sources of possible exposure. In affected areas, some employers are taking more extreme measures. Since COVID-19 is mostly spread through person-to-person contact, major employers around the world, including tech giants Twitter and Amazon, are encouraging employees to work from home. COVID-19 has even been called “the world’s largest work-from-home experiment.” Other employers are closing down for deep-cleanings or limiting visitors.
Can an employer ask a sick employee to get a medical exam or ask about their symptoms?
It depends. Generally, the Americans with Disabilities Act (ADA) prohibits an employer from asking an employee to undergo a medical exam unless it is job-related and consistent with business necessity. This standard usually bans all medical exams except in connection with a conditional offer of employment. However, an employer may ask an employee to undergo a medical exam if they have a reasonable belief, based on objective evidence, that the employee’s ability to perform the essential functions of his or her job is impaired or the employee will pose a “direct threat” due to their medical condition. According to the EEOC, whether a pandemic-like illness “rises to the level of a direct threat depends on the severity of the illness”: a disease akin to the seasonal flu is not a direct threat, while a “significantly more severe” illness might be. This rationale also applies to employers who ask to take an employee’s temperature to ensure they are not running a fever, since taking temperature is generally considered a medical exam. Likewise, while it is not usually advisable to ask employees medical questions, employers may ask an employee who calls in sick or reports they are not feeling well questions about their symptoms to protect against a direct threat. And questions like whether the employee has been exposed to coronavirus while traveling are not necessarily disability-related questions at all. Be sure to always keep confidential any information obtained about employees that is medical-related. In deciding what questions and actions are appropriate, the EEOC expects employers “to make their best efforts to obtain public health advice that is contemporaneous and appropriate for their location, and to make reasonable assessments of conditions in their workplace based on this information.”
Can an employer send sick or at-risk employees home?
Yes. The CDC recommends that employees who are showing signs of illness be isolated and sent home. Employees who have been potentially exposed to COVID-19 (for example, through an ill family member or recent international travel) may also be encouraged to stay home. The EEOC agrees that, in a pandemic situation, sending an employee home would likely pass the direct threat test, as set out above, and be allowable under the ADA. However, sending employees home also has implications for other laws, including the Family and Medical Leave Act (FMLA) and state sick leave laws, as well as employer leave policies. Generally, employers may follow their normal sick leave procedures when dealing with leave for potential COVID-19 exposure. COVID-19 may qualify as a “serious health condition” qualifying an employee for protected medical leave to care for themselves or a sick family member under the FMLA, so FMLA notice requirements should probably also be observed. The period of leave should be reasonable: according to the CDC, symptoms of COVID-19 appear within 2-14 days after exposure and, as discussed above, asymptomatic carriers of the coronavirus are not highly contagious.
Does an employer have to pay an employee who is quarantined or sick with COVID-19?
It depends. Under some circumstances, salaried workers, workers subject to collective bargaining agreements, and workers with employment contracts are guaranteed wages, especially for work-required leave. However, most at-will employees are not guaranteed wages or hours and do not have to paid for time off, unless some state or local paid sick leave law or paid time off policy applies.
Can an employer ask employees to take special precautions at work, like frequent hand washing or wearing a face mask?
Yes. According to the EEOC, “Requiring infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal, does not implicate the ADA.” Likewise, “An employer may require employees to wear personal protective equipment during a pandemic.” In the case of COVID-19 in particular, the CDC has recommended the use of face masks for individuals who have the illness to prevent spread but found they are not effective to prevent infection in healthy people. Instead, the CDC recommends that employers stock hand sanitizer with at least 60% alcohol, encourage handwashing with soap for at least 20 seconds, provide paper towels instead of air dryers (which can aerosolize the virus and increase spread), encouraging good techniques for coughing and sneezing (like covering the mouth with a tissue or sneezing into the elbow instead of the bare hand), and frequently disinfect common areas with wipes and cleaners. However, employers should be aware of individuals who many require a related reasonable accommodation of these measures for another disability (for example, an employee with a latex allergy who requires non-latex gloves).
Can an employer ask employees to take special precautions outside of work, like staying in quarantine or avoiding international travel?
Generally, an employer cannot control an employee’s behavior outside of the workplace. However, an employer may ask their employees to exercise the precautions set out above outside of work and take precautions itself in regard to employees at risk of infection due to personal behavior like travel.
If an employee gets COVID-19, can employers tell other employees about it?
Yes. The CDC recommends that employers warn their other employees if a coworker is confirmed to have COVID-19. However, you should not tell the infected employee’s name, as this would qualify as confidential health information protected by the ADA. The CDC also encourages employers to report sick employees to government health officials to help formulate a rapid and accurate response; again, the employee’s identity should be kept confidential unless the employer is a mandatory reporter under HIPAA.
What can an employer do with an employee who refuses to come to work or do necessary work-related travel because of COVID-19?
OSHA laws require employers to maintain a safe work environment for their workers. Employees cannot be required to engage in work that poses an “imminent threat” to their health or safety. However, employees are not excused from performing their job duties based on a generalized fear that they might be exposed to illness like COVID-19. Generally, decisions should be made on a case-by-case basis, looking at the individual facts of the situation. If an employee’s fears are based on reasonable, articulable facts, they may be within their rights. If not, the employer should proceed through their normal procedures for addressing an employee’s refusal to work, including any appropriate discipline.
What policies should employers have in place to deal with COVID-19?
As touched on above, policies governing sick leave, FMLA leave, reasonable accommodations, paid time off, and travel may all be implicated, so employers should review their policies to make sure they’re clear and up-to-date. For example, many states and cities have passed paid sick leave laws in recent years, so employers should ensure they are up-to-date and prepared to comply with these laws in case of a COVID-19 outbreak. Managers should be trained on how to deal with sick employees and sick leave requests, including when it is appropriate to ask for medical information and how to store this information confidentially. Employers should also consider putting in place contingency plans to deal with emergency situations, such as establishing procedures for how employees will be notified if offices are closed, what employees will be required to keep the business running in case of long-term closures, and what supplies will be kept on-site in case of an emergency.
What is the United States doing to address the spread of COVID-19?
On March 4, 2020, the House of Representatives passed an $8.3 billion emergency spending bill to fund efforts to fight COVID-19, including funding for the CDC, public health agencies, and vaccine research. Importantly for businesses, the bill also authorizes the Small Business Administration to provide $7 billion in low-interest business loans to businesses that are impacted by the outbreak. In the meantime, the CDC has issued travel advisories for Americans traveling to infected countries, air travelers from China are being screened at airports, the U.S. government is repatriating and quarantining Americans from affected areas in China, and the CDC is investigating and testing suspected cases.
Not long ago, H1N1 presented a threat even larger than coronavirus, with a global death toll of more than 284,000; now, it is considered a normal seasonal flu and included in standard flu vaccines. In time, the threat from coronavirus and COVID-19 will subside as well. In the meantime, by understanding the virus and disease, keeping abreast of new developments, and taking the simple precautions and actions set out above, employers can protect themselves and their employees from the current threat.
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