Seder & Chandler, LLP. clients may obtain advice and strategic input on workplace preparedness plans concerning COVID-19, by contacting our Employment Law Team. If you have specific health-related concerns, contact your local Department of Public Health or healthcare provider.
This information is current as of March 12, 2020.
For the most up-to-date information, readers are encouraged to consult the websites and resources identified in this email.
Q: Should I consider providing information to my employees about the coronavirus?
Q: What if an employee appears sick? Can we ask an employee to stay home or leave work if they exhibit symptoms of the COVID-19 coronavirus or the flu?
A. Yes, you are permitted to ask them to seek medical attention and get tested for COVID-19, and under most circumstances you can ask them to leave work.
Q: Can I take an employee’s temperature at work to determine whether they might be infected?
A: The Americans with Disabilities Act (ADA) places restrictions on the inquiries that an employer can make into an employee’s medical status, and the Equal Employment Opportunity Commission (EEOC) considers taking an employee’s temperature to be a “medical examination” under the ADA. It is important to note that the CDC is advising people who may have been exposed to the virus to quarantine themselves for 2 weeks as it may take up to 14 days for symptoms to develop. There is concern that individuals may be contagious before they develop symptoms.
Q: Does the Americans with Disabilities Act (ADA) restrict how I interact with my employees due to the coronavirus?
A: Not if it's a pandemic. The ADA protects employees with disabilities, but during a global health emergency, as recently declared by the World Health Organization (WHO), employees can be required to be medically examined to determine if they have contracted the disease when an employer has a reasonable belief that employees will pose a direct threat due to a medical condition.
Q: An employee of ours has a suspected but unconfirmed case or has tested positive for COVID-19. What should we do?
A:
You should
notify and
send home all employees who worked closely with that employee for a 14-day period of time to ensure the infection does not spread. When sending the employees home, do not identify the infected employee or you could risk a violation of confidentiality laws. You should also ensure that the employee’s work area and anything they may have touched are cleaned and disinfected to avoid additional exposures.
Q: If employees exhibit potential symptoms of contagious illnesses at work, can I send them home?
A:
Yes, sending an employee home who displays symptoms of contagious illnesses would not violate the ADA’s restrictions on disability-related actions.
Q: If we learn or suspect that one of our employees has COVID-19, do we have a responsibility to report this information to the CDC?
A: No, there is no obligation to report a suspected or confirmed case of COVID-19 to the CDC. The healthcare provider that receives the confirmation of a positive test result is a mandatory reporter who will handle that responsibility. As an employer, you should not reveal an employee’s personal health information. If you know that your employees have been exposed to COVID-19, you should notify them so that they can take precautions but should not reveal the identity of your ill employee.
Q: Can an employee refuse to come to work because of fear of infection?
A: Employees are only entitled to refuse to work if they believe they are in imminent danger. Section 13(a) of the Occupational Safety and Health Act (OSH Act) defines “imminent danger” to include “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.”
Q: Can we prohibit an employee from traveling to a non-restricted area on their personal time?
A: You generally cannot prohibit otherwise legal activity, such as travel abroad by an employee. While a federal court of appeals recently held that it is not necessarily a violation of the ADA to terminate an employee who refuses to cancel personal travel to an area of the world with a high risk of exposure to a deadly disease, you still could risk legal exposure, reduced employee morale, and negative publicity if you do so. The Commonwealth of Massachusetts is strongly encouraging its employees to avoid personal international travel.
Q: Can employees refuse to travel as part of their job duties?
A: Employees who object on behalf of others or act in groups could be covered by the National Labor Relations Board (NLRB) protection of concerted protected activity. You will want to proceed with caution and consult with your attorney before taking any steps in this regard. Moreover, under the federal OSH Act, employees can only refuse to work when a realistic threat is present. Please note, however, that many employers, including the Executive Branch of the Commonwealth, have discontinued all work-related travel for the next 30 days. You should carefully consider whether there is a need for employees to travel or whether other alternatives are available.
Q: Must we keep paying employees who are not working?
A
: Under the Fair Labor Standards Act (FLSA), for the most part the answer is “no.” FLSA minimum-wage and overtime requirements attach to hours worked in a workweek, so employees who are not working are typically not entitled to the wages the FLSA requires. One possible difference relates to employees treated as exempt FLSA “white collar” employees whose exempt status requires that they be paid on a salary basis. Generally speaking, if such an employee performs at least some work in the employee's designated seven-day workweek, the salary basis rules require that they be paid the entire salary for that particular workweek. An employer may direct exempt staff to take vacation or leave in the event of an office closure provided the employees receive payment equivalent to their salary. Exempt employees who do not have accumulated leave or vacation days must also be paid their normal weekly salary. Additionally, an employer might have a legal obligation to keep paying non-exempt employees because of, for instance, an employment contract, a collective bargaining agreement, or some policy or practice that is enforceable as a contract or under a state wage law.
Q: Does family and medical leave (FMLA) apply to this situation for employees or immediate family members who may contract coronavirus?
A: Yes, assuming that the FMLA applies to the employer, coronavirus would qualify as a "serious health condition" under FMLA, allowing an employee to take FMLA leave if either the employee or an immediate family member contracts the disease. The employee would be entitled to job reinstatement as well. State law may provide additional leave benefits (for example, Massachusetts Earned Sick Time). Employees requesting leave could conceivably be protected by the Family and Medical Leave Act (FMLA) to the extent they otherwise meet FMLA-eligibility requirements.
Generally, employees are not entitled to take FMLA to stay at home to avoid getting sick or due to a lack of childcare for healthy children. As with many employment laws, the worst thing an employer (or as is often the case, an untrained supervisor) can do at times like this is to reject immediately an unorthodox leave request before the facts are in. When in doubt, the wisest approach is to work with counsel to ensure legal compliance, thereby minimizing exposure to costly litigation. If the employee can complete their job duties from home via telework, you should consider this option.
Q: My employee alleges that they contracted the coronavirus while at work. Will this result in a compensable workers’ compensation claim?
A: It depends. If the employee is a health care worker or first responder, the answer is likely yes (subject to variations in state law). For other categories of employees, a compensable workers’ compensation claim is possible, but the analysis would be very fact specific.
The foregoing information is provided based on currently known information. The progress of this disease is constantly evolving. The foregoing information is subject to change based on such evolving information.
Our attorneys routinely counsel clients on all matters of Employment Law including employment litigation, day-to-day counseling, benefit plans, workplace safety and health issues. For more information, contact a member of our
Employment Law Group.
The CDC is recommending employers not request doctor’s notes for employees to leave/return to work due to the possible delays and increased burden on health providers. The CDC is also recommending employers cross-train employees now in the event of increased absenteeism, and there have been general requests that employers be flexible when possible and be aware that they may have increased absenteeism due to sick employees/family members and school closings.
