Wyatt Employment Law Report

COVID-19 PRACTICAL GUIDE FOR EMPLOYERS – FAQs

By Meredith Eason, Tyson Gorman, Mitzi Wyrick and Christopher Hanewald

The following Frequently Asked Questions seek to provide guidance to our clients on some of the questions we have received regarding how the COVID-19 pandemic may impact their employees and businesses.  These responses attempt to provide general policy guidance to employers; however, individual facts and circumstances may require further analysis.

At this time, a number of states and municipalities have already taken steps to close or restrict many businesses’ operations that are not deemed ‘essential.’ While we anticipate that the list of government issued restrictions will continue to grow every day, business owners with operations that are deemed essential will need to understand how to maintain business functions while complying with the evolving legislative requirements. We recommend you consult with legal counsel before making any employment policies or business decisions as a result of COVID-19.  If you have a question that is not listed here or would like more information about any of the information below, please feel free to reach out to one of our attorneys. 

  1. Can I send employees home if they are exhibiting symptoms? 

Yes.  If employees exhibit COVID-19 or flu-like symptoms, the Center for Disease Control (“CDC”) advises that they leave the workplace.  In the H1N1 pandemic, the U.S. Equal Employment Opportunity Commission (“EEOC”) did not consider this a violation of the ADA and will likely take the same position regarding COVID-19.

  1. Can I take employees’ temperatures before allowing them to enter the workplace?

Generally, measuring an employee’s body temperature is a medical examination. Because the Center for Disease Control (“CDC”) and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperatures. However, employers should be aware that some people with COVID-19 do not have a fever.

  1. If employees tests positive for COVID-19, or exhibit symptoms, can I inform other employees that they have been exposed?

Employers can inform their employees that they may have been exposed but may not identify the infected employee and may not provide any health information about specific employees.  If an infected employee is identified, employers must ensure that the employee does not become the victim of workplace harassment or discrimination.  If an employee tests positive, the CDC recommends that the employer send home and quarantine anyone who the infected employee worked closely with during the 14 days before the infected employee started exhibiting symptoms in order to prevent the spread.

  1. Can I terminate employees who are on leave because they are quarantined?

Generally, no.  If an employee has tested positive for the virus, has been instructed by a healthcare provider to be quarantined due to symptoms he or she is exhibiting, or is under a quarantine recommended by the CDC due to travel, the employee could be considered disabled under the Americans With Disabilities Act (“ADA”) and should not be terminated.  If the employee can work from home, that option should be offered as a reasonable accommodation.  If not, employers should provide leave to the affected employee under the Family and Medical Leave Act (“FMLA”) or the Families First Coronavirus Response Act.

If an employee is refusing to come to work resulting from a fear of COVID-19, and a reasonable accommodation cannot be made, then termination may be an option depending on the extent of the infection in the area and the specific facts of the case.  Under Occupational Safety and Health Administration (“OSHA”), employees are only entitled to refuse to work if they believe they are in “imminent danger” which is defined as “any conditions or practices in any place of employment which are such that a danger exists which can reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.”

  1. What leave must I provide to employees under the Families First Coronavirus Response Act when it goes into effect?

Paid Sick Leave.  Employers with fewer than 500 employees must provide emergency paid leave to employees who have been affected by the coronavirus.  Specifically, employees are eligible for paid leave if:

  1. The employee is subject to a Federal, State, or local quarantine;
  2. The employee has been advised by a health care provider to self-quarantine;
  3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  4. The employee is caring for an individual who is subject to either paragraphs (1) or (2);
  5. The employee is caring for a child whose school or place of care has been closed or unavailable due to COVID-19 precautions; or
  6. The employee is experiencing any other substantially similar conditions specified by the Secretary of Health and Human Services.

Full-time employees are entitled to 80 hours of paid leave while part-time employees are entitled to paid leave for the average hours they work over a two-week period.   Employees taking paid sick leave because they are subject to a quarantine or isolation order, have been advised by a health care provider to self-quarantine, or are experiencing coronavirus symptoms and are seeking medical diagnosis are entitled to be paid at their regular pay rate or at the federal, state or local minimum wage, whichever is greater, but not to exceed $511 per day, or $5,110 in the aggregate.  Employees taking paid sick leave to care for another individual or child are entitled to be paid at two-thirds their regular rate, not to exceed $200 per day, or $2,000 in the aggregate.

Employers cannot require employees to use other paid leave provided by the employer before using the paid sick time provided under the Act.  After the first work day that employees receive paid sick time, they must follow “reasonable notice procedures” to continue receiving paid sick time.

The Secretary of Labor shall provide a model notice for employers to post within 7 days of enactment and shall issue guidelines to assist employers in calculating paid sick time within 15 days of enactment.

Public Health Emergency Leave.  The Act expands leave under the Family and Medical Leave Act (FMLA) to provide public health emergency leave.  Under the Act, eligible employees include those who work for employers with fewer than 500 employees who have been employed for at least 30 days. Small businesses with fewer than 50 employees may be exempted if providing paid leave would jeopardize the viability of the business.  Employers who are health care providers or emergency responders may be excluded from the public health emergency leave provisions.

The first 10 days of FMLA public health emergency leave is unpaid unless the employee chooses to or is required to substitute any accrued paid vacation leave, personal leave, or sick leave.  After 10 days, employees may receive paid leave of not less than 2/3 of the employee’s regular rate of pay not to exceed $200 per day or $10,000 in the aggregate.  Hourly employees who work varied schedules can receive the average number of hours the employee was scheduled to work over the preceding six month period or, if the employee did not work in the prior six months, the reasonable expectation of the employee at the time of hiring regarding the average hours per day the employee would be scheduled to work.  Generally, employees (unless they are employed by an employer with fewer than 25 employees) taking public health emergency leave are entitled to be restored to the position they left or to obtain an equivalent position.

The Act takes effect on April 1, 2020 and expires on December 31, 2020.

  1. Could I face a worker’s compensation claim from an employee who claims they were exposed to COVID-19 at work?

This varies depending on your state’s worker’s compensation laws.  Typically a contagious disease contracted while working would fall under worker’s compensation coverage; however, particularly during a pandemic, it will be difficult to identify the source of an individual’s infection.  If someone the individual works closely with on a daily basis tests positive, and the individual had extensive contact with that individual during the incubation period, this could be considered in a worker’s compensation claim.  If your business is a healthcare facility treating COVID-19 patients, your employees are more likely to have a valid claim.

  1. If I reduce an employee’s hours, or furlough an employee, are there corresponding insurance considerations?

This varies based on the provisions of each employer’s health plan.  A plan will state how long employees who are not working may remain covered by insurance.  Once the period expires, active employee coverage must be terminated and a COBRA letter must be sent.  Some insurance carriers may agree to temporarily waive applicable eligibility provisions due to the pandemic, but they are not required to do so.

  1. Should we cancel upcoming meetings/seminars/events?

Depending on your location, you may be required by state or local laws to cancel any upcoming events or group gatherings.  The CDC is currently recommending any gathering of more than 10 people be canceled or postponed.

  1. What travel restrictions can I place on my employees?

As of this writing, the CDC is recommending that employers restrict all nonessential travel to Level 3 areas and to exercise caution regarding Level 2 areas.  Many companies, including our firm, have canceled non-essential travel and in-office meetings.  When denying a request for leave, employers need to ensure they are not violating other employment statutes, such as the FMLA which requires some employers to provide up to 12 weeks of unpaid leave to care for an ill family member, or Title VII which prohibits discrimination based on national origin or race.  Employers may request that employees  inform them of any personal travel that they or their families take to an affected area.  Employers may require employees to remain out of the workplace for 14 days after returning from a high-risk area (per the CDC recommendations) and should inform employees about this policy before they travel.

Our firm is requesting that any employee who is traveling outside the US to a Level 3 country that the CDC identifies as having “Widespread Sustained Transmission” report this travel to the human resources department and is encouraging employees to limit international travel at this time.

  1. May an employer encourage or require employees to telework (i.e., work from an alternative location such as home) as an infection control strategy?

Yes. The EEOC has opined that telework is an effective infection-control strategy. The EEOC has also stated that employees with disabilities that put them at high risk for complications of pandemic influenza may request telework as a reasonable accommodation to reduce their chances of infection during a pandemic.

  1. Do employer-instituted quarantines, temporary shutdowns, or mass layoffs entitle workers to unemployment benefits?

Yes, workers are generally entitled to unemployment insurance if they are furloughed when a business temporarily shuts down and all other unemployment requirements are met.  Many states are loosening eligibility requirements to make it easier for terminated or furloughed employees to get benefits.

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