The rapidly evolving coronavirus (COVID-19) pandemic has sent shockwaves across the globe. Fear of infection and spreading the potentially fatal virus is disrupting Americans of all ages, races, and socioeconomic statuses. The President of the United States has declared a national emergency over the coronavirus pandemic as public life in America continues to grind to a halt as a cascade of federal, state and local politicians have taken swift, sweeping action in hopes of protecting their constituents. Whether you agree with the sudden and considerable response from various levels of government, the reality is that these changes, restrictions, and protections are going to be in place for at least the next several weeks, and likely, some say, well into the summer months. Things are going to get worse before they get better. In the meantime, weddings, graduation ceremonies, sporting events, concerts, and countless other enjoyments of everyday life are being postponed indefinitely or canceled, cities are quarantined, businesses are shut down, and as of Monday morning, public and private schools are closed for nearly 30 million children across the U.S.—more than half of the nation’s school enrollment.
The unprecedented spread of the novel coronavirus and associated outbreak of the COVID-19 disease and the barrage of legal changes and complex new requirements at the federal, state, and local level have already had a significant impact on employers of all shapes and sizes. This unwelcome new way of life, albeit temporary, has already reshaped and expanded the myriad rules and requirements that employers must navigate. Daily trends in this fluid situation suggest that employers will need to prepare themselves for more changes in the coming days and weeks.
Further complicating matters, different laws apply to different employers depending on the nature, scope, and location of their business, as well as the number and classification status of the workers they employ. These nuances make a difficult situation worse as employers strive to make the best decisions for their businesses and employees.
One thing is for certain: in times of crisis, Americans come together, rely on one another, and help each other weather the storm. Towards that end, the employment experts at Ward Law have prepared this special edition of The Ward Report to provide employers with resources and answers to many frequently asked questions about the legal implications of coronavirus.
FREQUENTLY ASKED QUESTIONS
What is COVID-19?
COVID-19 is a new strain of the coronavirus is a previously unrecognized coronavirus that can result in a pneumonia-like infection. According to health officials, COVID-19 is like the flu, but a lot more serious. Symptoms of the infection range from mild and flu-like to severe respiratory illness, sometimes, although rarely, resulting in death. Fever, cough, and difficulty breathing are the most common symptoms.
How Does the Virus Spread?
Person to person contact or close proximity with an infected person appear to be the most common ways the virus spreads. This can occur through small droplets from the nose or mouth when a person with COVID-19 coughs or exhales. These droplets also land on objects and surfaces around the person. Others may be able to catch the virus by touching these objects or surfaces, then touching their eyes, nose, or mouth. It should be noted, however, that this is not thought to be the main way to spread the virus. To help prevent the spread of COVID-19, it is recommended that people keep their distance from others, wash hands frequently, avoid large gatherings, and try not to touch your face with your hands.
What to Do if an Employee Exhibits Signs of the Virus?
According to the CDC, employees who exhibit flu-like symptoms should leave the workplace. The Equal Employment Opportunity Commission (EEOC) has previously stated that advising workers to go home is not disability related if the symptoms present are akin to the seasonal flu or H1N1 (at the time). This guidance should apply equally in the case of COVID-19, so an employer may require workers to go home if they exhibit symptoms of the COVID-19 coronavirus or the flu.
If, therefore, an employee exhibits such signs, the employer should separate that employee from others in the workplace. The employer should require the employee to stay out of the workplace, either until the 14-day incubation period has passed, receipt of a negative test, or until a doctor certifies that it is safe for the employee to return to work earlier. During this time, the employee should self-monitor for signs of fever, coughing or trouble breathing.
If an employee tests positive for COVID-19, the employer should promptly notify the employee’s coworkers, who may have come into contact with him or her, that they may have been exposed to the virus. Additionally, to the extent possible, any third parties who have may have been exposed in the course of the infected employee’s work should also be notified. The employer should also suggest that these exposed employees get tested to confirm whether they, too, have been infected. Note, however, that the confidentiality of the employee(s) should be maintained, so it is important that the infected employee not be identified when providing notice of potential exposure to others. This may be violative of the ADA or subject the infected employee to potential harassment.
What Should an Employer Do if an Employee Reports Contact with Somebody who has been Diagnosed with COVID-19?
Once notified, the employer should follow the steps outlined above. Request that the employee stay out of work until the 14-day incubation period has passed, they receive a negative test, or obtain certification from their doctor that it is safe to return to work. If there is a positive test for COVID-19, identify and notify coworkers who have been in contact with the infected employee, being careful not to provide any information that may identify that employee.
Can an Employer Require Employees to be Tested for a Fever While at Work?
The reliability of such testing to detect COVID-19 is questionable for many reasons, not the least of which is that several experts believe that the virus can be spread before any symptoms manifest. Nevertheless, generally, an employer may not require medical testing of its employees as it would be a violation of the ADA. It is likely that requiring an employee to have his or her temperature taken would fall into the medical examination category. However, under the EEOC’s Pandemic Preparedness in the Workplace guidelines, doing so might be permissible where COVID-19 becomes widespread in the community, as assessed by state or local health authorities or the CDC. We do not recommend taking this step, and certainly consult with an attorney before you do so.
Can We Terminate an Employee Who Refuses to Report to Work for Fear of Catching the Virus?
We would recommend against doing so given OSHA prohibitions against employers terminating employees who refuse to expose themselves to job conditions they reasonably believe to be dangerous conditions. There may also be implications having to do with the National Labor Relations Act which protects concerted protests against unsafe working conditions. Given these risks, we would certainly counsel that it not be done without at least consulting with an attorney.
Must an Employer Allow an Employee to Work from Home if they Request to do so?
The simple answer is no. There is no requirement that an employer grant such a request. However, if such a request is granted, the employer should keep in mind that it will be difficult to refuse the same request of other employees without potentially exposing themselves to claims of discrimination on some level or another. Thus, an employer must not deny a request to some and grant it to other unless they have legitimate, nondiscriminatory reasons for doing so. Practically speaking, however, given the complexities of the COVID-19 outbreak and spread, and, more importantly, the potential dangers of exposure of employees, the employer should consider granting such requests – even it would normally not do so. If an employer makes the decision to allow telecommuting only because of the special circumstances of COVID-19, it should be well documented that the request is being granted temporarily and only because of the extraordinary situation presented by COVID-19.
Does an Employer Have to Pay the Employee While Out of Work?
It depends. An employer does not typically need to pay non-exempt hourly employees while they are out of work, as set forth by the Fair Labor Standards Act. However, the requirements also depend on the employer’s policy of paid time off and sick leave as well as applicable state and local sick leave laws.
If, however, a non-exempt employee is out of the workplace due to COVID-19 performs work while at home, the employer must pay the employee for the hours worked. The employee must keep a record of the hours they worked in order to be paid. As for exempt employees, they should be paid their full salary for any week that they perform any work.
What are the Obligations of an Employer if an Employee Requests Time Off to Care for a Family Member Who is Infected with COVID-19?
The Family and Medical Leave Act would apply in this circumstance. The employer would be required to give the requested time off to any employee who is FMLA eligible. The FMLA guarantees up to 12 weeks of unpaid leave each year without threat of losing their job. Additionally, some state and local laws provide similar or even more expansive protections than the FMLA.
Can an Employer Restrict Employees from Traveling?
Yes. The employer is permitted to restrict work-related travel as it sees fit. If the travel is not work-related, then an employer generally is prohibited from restricting otherwise lawful activity. There are certain exceptions, but this can be risky as, in addition to application of some federal law, several states have laws that prohibit an employer from taking action with regard to lawful activities away from work. Before taking such a step, the employer should consult with an attorney.
We understand that these are trying times and the COVID-19 situation forces employers to delve into seemingly uncharted waters. The foregoing list of FAQs is just the tip of the iceberg when it comes to navigating complicated issues. We are committed to providing comprehensive and high-quality legal counsel to employers who need our assistance. If you have any questions or need advice on any of the issues presented by COVID-19, we are here to help.
How Do I Contact a Ward Law Attorney?
The Ward Law office telephone number is 215.647.6600. In the event of a mandatory office closure, all attorneys and staff are fully capable of working from home with their direct dial telephone numbers rerouted directly to their mobile phone allowing for no interruption in service to our valued clients. Please feel free to CLICK HERE to link to all Ward Law attorneys for their direct dial numbers and email addresses.
Two federal agencies have offered guidelines on the epidemic. As an initial matter, employers should familiarize themselves with:
- CDC’s Interim Guidance for Businesses and Employers
- the OSHA instructive Guidance for Preparing Workplaces for COVID-19 for employers on how to proceed with respect to protecting their employees