by Michelle De Oliveira
The apparent spread of Coronavirus (COVID-19) is generating concerns in the workplace and employers have questions, understandably so.
This article is designed to assist employers when navigating issues related to COVID-19 including, among other things, confidentiality and privacy concerns, health-related inquiries, leave-related issues, wage and hour issues, travel restrictions, and guidance and recommendations from the Centers for Disease Control and Prevention (CDC).
Interim Guidance For Businesses And Employers From The CDC
In an effort to contain COVID-19 and address the risks associated with the spread of the virus, the CDC published an Interim Guidance for Business and Employers. Through its Interim guidance, the CDC provides employers with the following information and tools to address, plan, prepare and respond to COVID-19:
Recommended Strategies for Employers
Encourage sick employees to stay home.
- Employees with symptoms of acute respiratory illness or fevers should stay home until they are fever-free for at least 24 hours without any fever-reducing medication.
- Develop and implement flexible sick policies to allow employees to care for their own health and to attend to sick children or family members.
- Discuss the importance of sick employees staying home with staffing agencies that provide temporary or full-time employees.
Separate sick employees.
- Employees who appear to have acute respiratory illness symptoms (cough, shortness of breath) should be separated from other employees and be sent home immediately.
Emphasize staying home when sick, respiratory etiquette and hand hygiene.
- Place posters that encourage employees to stay home when sick, and to use hand hygiene.
- Provide tissues and no-touch disposal receptacles in the workplace.
- Instruct employees to wash their hands often with soap and water, and to also use alcohol-based hand sanitizer.
- Have ample supplies for use in the workplace (e.g., tissues, soap, hand sanitizer).
- Employees should cover their noses and mouths with a tissue when coughing or sneezing (or an elbow or shoulder if no tissue is available).
Perform environmental cleaning.
- Routinely clean all frequently touched surfaces in the workplace (countertops, doorknobs, etc.).
Advise employees to take certain steps before traveling.
- Refer to the CDC’s Travel Health Notices for guidance and recommendations.
- Advise employees to be aware of respiratory symptoms, past travel and to stay home if the employee is sick.
- Review and assess travel restrictions.
Planning for a Possible Outbreak
The CDC has encouraged businesses to have a plan in place in the event of an outbreak. This is important as employers will play a pivotal role in helping contain the spread of COVID-19. Critically important to businesses will be protecting the workplace from COVID-19 while ensuring that business operations continue.
The CDC has also encouraged employers to have a flexible plan and to share those plans with employees. Employees should be educated as to the applicable company policies and procedures, and employees should understand their options and what guidelines they need to follow.
In the event of exposure in the workplace, employers should have a plan for communicating exposure in the workplace to its employees.
Confidentiality and Privacy Concerns
Employees have a right to confidentiality and privacy of their medical information in the workplace. This right is aligned with the ADA, HIPPA, and other related federal and state laws.
To that end, it is critically important that employers maintain the confidentiality of an employee’s COVID-19 diagnosis or related symptoms. Employers who receive information related to any such diagnosis or symptoms should treat the information as private and confidential medical information. The information should be retained in the employee’s private medical file (not in the employee’s personnel records).
If an employee is working remotely because of a quarantine and/or to self-monitor, employers should safeguard and protect the employee’s privacy and confidentiality, and not disclose the reasons the employee is not in the office.
Although an employee has the right to privacy and confidentiality of his or her medical information, other employees also have the right to know if there is a health risk in the workplace. For this reason, employers should notify all employees of potential exposure in the workplace in the event an employee is diagnosed with COVID-19 or has related symptoms, without disclosing the identity of the individual with the diagnosis or related symptoms. In the event of exposure in the workplace, employees should consult the CDC for information related to risk assessment and potential exposure.
Employers who learn of an employee’s COVID-19 diagnosis are to contact the local health department to develop a plan for the workplace and then communicate the plan to all employees.
According to the EEOC’s Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the ADA, an employer may ask an employee general questions related to the employee’s well-being. For example, an employer can ask an employee how the employee is feeling, or if the employee is feeling ok.
In light of the health risks associated with COVID-19, it appears that an employer may ask an employee if he or she is experiencing COVID-19 symptoms such as fever, tiredness, cough, and shortness of breath because COVID-19 presents a “direct threat” in the workplace.
Under the ADA, the term “direct threat” is defined as a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” The determination of whether an employee poses a “direct threat” is based on a case-by-case assessment of whether the employee can perform the essential functions of the job. Factors to be considered to determine whether an individual would pose a direct threat include: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.
When an employer believes that an employee poses a “direct threat” in the workplace, the ADA allows an employer to request that the employee submit to a medical examination.
Moreover, OSHA imposes a duty on employers to provide employees with “employment and a place of employment, [that is] free from recognized hazards that are causing or are likely to cause death or serious physical harm.” In asking an employee whether he or she has COVID-19 or related symptoms, an employer is taking steps to protect the workplace from the direct threat of COVID-19 and to provide a workplace free from hazards.
As noted above, COVID-19 appears to pose a “direct threat” in the workplace that potentially justifies inquiries related to its symptoms, but employers should ensure that they seek the advice of counsel when making such inquires to not run afoul of the ADA.
Discrimination and Harassment in the Workplace
State and federal laws strictly prohibit discrimination and harassment in the workplace. Discrimination and/or harassment can come in many forms. Employers should not tolerate any adverse treatment of an employee because of the employee’s national origin, ancestry, race, or on the basis of any other protected class.
Business decisions related to COVID-19 should be based on a legitimate concern related to exposure or possible exposure. For example, if an employee traveled to a country in which COVID-19 is prevalent, it is fine for the employer to ask the employee to telecommute for a brief period of time – and this is aligned with recommendations from the CDC.
Generally, businesses should treat an employee’s absence related to COVID-19 the same way they treat any other absence. In other words, if an employee is diagnosed with COVID-19 or is caring for a family member with COVID-19, then the company’s PTO, earned sick time and/or vacation policies will come into play. Which policy applies and how it will be applied will vary depending on how the company has defined and structured such policies.
The key is that if an employer has a PTO policy that combines vacation time with sick time, the employer needs to ensure that the policy is at least as generous as Massachusetts’ Earned Sick Time Law (M.G.L. c. 149, § 148C).
Employers must also consider additional leave-related laws such as the FMLA and the ADA. As to the FMLA, employers that provide their employees with FMLA leave, as required by federal law, may see an increase in requests for FMLA leave from employees who are diagnosed with COVID-19, or who otherwise need to care for a spouse, son, daughter or parent with COVID-19.
As with the ADA, employers should note that COVID-19 may be considered a serious health condition that may entitle an employee to a reasonable accommodation. Therefore, if an employee notifies the employer that he or she has COVID-19 or believes that he or she has the virus and asks to work from home, the employer should treat the request as a request for a reasonable accommodation under the ADA and engage in the interactive dialogue.
COVID-19 may also be considered a “handicap” under Massachusetts’ anti-discrimination statute (M.G.L. c. 151B), possibly entitling an employee with COVID-19 to a reasonable accommodation and requiring that the employer engage in an interactive dialogue with the employee.
The CDC has requested that employers not require an employee to furnish a healthcare provider’s note if the employee is sick with acute respiratory illness to validate the illness and/or for the employee’s return to work. The CDC is concerned that healthcare providers and medical facilities may be unable to provide such documents in a timely manner. Despite this directive from the CDC, Massachusetts’ Earned Sick Time Law allows an employer to request written documentation from a healthcare provider if the employee is out sick for more than 24 consecutively scheduled work hours, or three consecutive days on which the employee is scheduled to work.
Employers should assess each situation or employee circumstance with care and on a case-by-case basis.
Wage and Hour Issues
Businesses and employees have been asking the question about how COVID-19 may impact the employee’s pay if the employee is out due to a mandatory company shut-down, or because the employee is sick or needs to care for a family member who is sick.
The answer as to the potential impact on an employee’s pay will vary depending on whether the employee is exempt (salaried) or non-exempt (hourly).
Non-Exempt Employees: Federal wage and hour laws do not require that non-exempt employees be paid for any hours that the employee does not work. In other words, hourly employees only need to be paid for hours worked. Employers should keep in mind, however, that non-exempt employees may still be entitled to pay under the company’s PTO, vacation and/or sick time policy.
Exempt Employees: Exempt employees, however, must receive their full salary for any workweek in which they perform work. The general rule for exempt employees is that deductions for variations in the quantity and quality of the employee’s work are not allowed. There are limited exceptions to this rule that allow for deductions, and such exceptions include:
- If the employee is absent from work for one or more full days for personal reasons other than sickness or disability;
- Full day absence due to sickness or disability if the deduction is made in accordance with a bona fide plan, policy or practice of providing compensation for salary lost due to illness;
- When an employee takes unpaid leave under the FMLA, the employer does not need to pay the employee’s salary during the leave;
- To offset amounts an employee receives as jury or witness fees or for military pay;
- For penalties imposed in good faith for infractions of safety rules of major significance; or
- For unpaid disciplinary suspensions of one or more full days imposed in good faith for workplace conduct rule infractions.
Also, if an employee does not perform any work in a workweek, the employer does not have to pay the employee’s salary.
Employers should also keep in mind that a reduction of an exempt employee’s weekly pay (in circumstances in which an exception applies) may not be a viable option. Indeed, to qualify for the exemption – and not be entitled to overtime pay – the employee must be paid at least $684 per week. As a result, if an employer reduces an employee’s weekly salary and the reduction results in a weekly salary below the $684 threshold, the employer will run afoul of the salary threshold and create exposure under state and federal overtime laws.
Another recurring question among businesses relate to travel restrictions. Employers may restrict business travel because of the risks associated with COVID-19. The CDC has advised employers to restrict all nonessential travel to areas with a Level 3 Travel Health Notice, and to exercise caution regarding travel to Warning Level 2 areas. Additional helpful information may be found on the CDC’s website, Coronavirus Disease 2019 Information for Travel.
Employers cannot, however, prohibit employees from traveling for personal reasons. What employers can do is advise employees who travel to areas subject to travel health notices, that the employee may be subject to quarantine or potential leave upon return.
While making or assessing an employment decision, employers should keep in mind some other key considerations. For example:
- Does the employee have an employment agreement entitling the employee to certain wages, hours per week, or notice of any changes to the terms and conditions of employment?
- Does the employee have a benefit plan setting a minimum number of hours the employee must work?
- Ensure that all business decisions are not impacting a particular group of employees.
Lastly, employers should ensure that they retain up-to-date emergency contact information for all employees in the event of a workplace emergency.
As with any employment-related decision, employers should assess each decision and situation with care and on a case-by-case basis. Employers and HR personnel are encouraged to seek the advice of counsel when making employment decisions. Please contact an employment law attorney if you have any questions or concerns.
Michelle De Oliveira, Esq. is an associate at Kenney & Sams, P.C.