The coronavirus (COVID-19) has been dominating the news this year—and for good reason! The CDC reports that this respiratory disease has been detected in more than 180 locations internationally, including an ever-growing number of confirmed cases (and deaths) in the United States. The World Health Organization declared the outbreak an international pandemic in early March. But this constantly-evolving situation has left employers with many questions about what to expect and how to handle COVID-19 in the workplace.
What employment laws should a company consider?
Remember that the Occupational Safety and Health Act of 1970 (OSHA) provides that an employer has a general duty to provide a working environment “free from recognized hazards that are causing or are likely to cause death or serious physical harm” to employees. Unsurprisingly, OSHA has issued guidance on COVID-19 in which it summarizes employers’ general duty and helpfully explains that there is no specific OSHA standard covering COVID-19. OSHA’s guidance also suggests that employers should develop an infectious disease preparedness and response plan, which includes things like disease prevention as well as the identification and isolation of infectious individuals. And, of course, some state and local laws impose similar or additional requirements in this area.
FMLA and Other Sick Leave Laws
Employers will likely need to provide medical leave to employees who have COVID-19 or other contagious diseases. The federal Family and Medical Leave Act (FMLA) allows an employee to take up to 12 weeks of unpaid, job-protected leave due to his or her own “serious health condition” or that of a spouse, parent or child. However, not every employer is covered by FMLA and not every employee will be eligible for FMLA leave (even under the provisions of the newly enacted Families First Coronavirus Response Act). Assuming the employer is covered, and the employee is eligible, COVID-19 would almost certainly be considered a “serious health condition” if the employee or a family member is ill.
Speaking of the Families First Coronavirus Response Act (FFCRA), this new piece of legislation expands unpaid family and medical leave and imposes the requirement to provide paid leave in qualifying circumstances. In addition, it allows employers to apply for tax credits to offset the cost of paid leave.
Depending on where you operate, you may also need to comply with state or local medical leave laws. These laws vary widely—they may have broader coverage, lower eligibility requirements, or more generous leave provisions than the FMLA. And while there is no national paid leave law, many states and cities do have laws requiring paid leave, including Arizona, California, Connecticut, Massachusetts, Oregon, Vermont and Washington State. Additionally, states like Illinois, Maryland and Minnesota (among others) allow sick leave granted by employers to be used for employees’ family members. Finally, some states like Colorado have passed leave legislation specifically related to COVID-19 that you should also follow.
As you can see, the analysis for employee leave can get very tricky. Further, changes in governmental guidance and even in the underlying laws are occurring on almost a daily basis, which will affect the legal analysis of issues related to COVID-19. Thus, it is critical that you pay attention to new guidance in this area and stay in close contact with your favorite attorney.
What About the ADA?
Under the Americans with Disabilities Act (ADA), private employers with 15 or more employees may not discriminate against anyone because of a disability and generally must provide reasonable accommodations to allow disabled employees to perform the essential functions of his or her job. However, the ADA also mandates confidentiality for medical information and limits the medical information that an employer can obtain during the hiring process and after employment begins. These last two provisions of the ADA apply to all employees in general, not just employees with disabilities. The law also protects individuals who have a history of a disability, or who are “regarded as” having a disability, even if they have no “current” or actual condition. And, like so many other employment issues, there can also be state-specific protections in this area, too.
How does the ADA apply to COVID-19? Well, some manifestations of COVID-19 could potentially be considered disabilities. More commonly, however, the ADA’s confidentiality provisions can create difficulties when an employer learns that an employee has a contagious illness, such as COVID-19. Pro tip: Do not announce via company-wide email that Employee Emerson has COVID-19. If you learn that your workplace may have been exposed to COVID-19, tell your employees about the exposure or potential exposure generally (and, of course, any precautions that they should take), but don’t provide information that would identify the individual employee who is sick.
The ADA also prohibits employers from requiring current employees to undergo medical examinations unless the examinations are “job-related and consistent with business necessity.” Because taking an employee’s temperature is generally considered a medical exam under the ADA, it is usually frowned upon. However, the Equal Employment Opportunity Commission (EEOC) just issued guidance in March stating that employers may measure employees’ body temperature in connection with COVID-19 precautions because the coronavirus has been declared a pandemic by the WHO. However, employers should be aware that some people with COVID-19 do not have a fever and thus taking employees’ temperature may or may not be an effective prevention tool.
Handling COVID-19 in the Workplace
For information related to handling COVID-19 in the workplace, I recommend that you check Constangy’s Coronavirus Resource for Employers (www.constangy.com/coronavirus). Further, the Centers for Disease Control and Protection (CDC) has been regularly issuing interim guidance to help prevent workplace exposure, and it would be a good idea to assign someone to monitor their guidance as well as that of other governmental agencies on behalf of your company. In general, the CDC recommends the following:
Encourage sick employees to stay home.
Employees who have symptoms of any acute respiratory illness should stay home and not come to work until they are free of fever or any other symptoms for at least 24 hours, without the use of fever-reducing or other symptom-altering medicines.
Emphasize respiratory etiquette and hand hygiene.
It’s like kindergarten: remind your employees that everyone should cover his or her nose and mouth with a tissue when coughing or sneezing (or use an elbow or shoulder if no tissue is available). Hand washing should not be saved for special occasions. Further, provide tissues and no-touch disposal receptacles for use by 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 work areas where they are likely to be seen.
Clean the workplace regularly.
Routinely cleanse 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.
Take certain steps before traveling.
This could include checking the Traveler’s Health Notices for the latest guidance on the areas your employees are visiting and reviewing other information that is available on the CDC’s website. Further, reconsider whether that travel is absolutely necessary right now.
As the COVID-19 outbreak evolves, stay abreast of the latest guidance and consult with your employment lawyer in these challenging times to prevent workplace claims and litigation. And finally, be safe.
This column is made available by the attorney and publisher for educational purposes only, to give you general information and a general understanding of the law, not to provide specific legal advice or to establish an attorney-client relationship. This column should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.
Check out the rest of the April digital edition of Tire Review here.