Coronavirus: HR Actions Employers Should Take NOW

Human Resource Solutions for a Changing World

March 3, 2020

Is Your Workplace Ready for Coronavirus?

As testing ramps up across the country, more diagnoses in the U.S. are certain, leading employers to face the stark reality that it’s time to dust off their

health crises plans or create one. T o help you prepare, this e-bulletin

outlines vital HR strategies and provides answers to key questions

employers have about communicable diseases in the workplace.

Preparing Your Workplace for COVID-19

With community transmission of the coronavirus now a reality in the U.S., employers are rightfully concerned about the potential impact on their business operations, including, most importantly, their employees.

Read on for answers to your most pressing questions—from preventative actions and communication strategies you can implement immediately to employment regulations impacting communicable diseases in the workplace and how to address potential or actual employee diagnoses of COVID-19.

Information in this e-bulletin is current as of March 3, 2020. This is a rapidly evolving public health

concern and employers should closely monitor guidance provided by health officials,

such as the Centers for Disease Control and Prevention (CDC).

QUESTION 1:

Should we communicate with our employees now, even though no one in our company has

reported a concern about coronavirus?

Yes, you should. Communication can be verbal, via a written memo, or electronic. The most important points to communicate to employees right now are these:

— The company is closely monitoring the guidance provided by public health officials and, although the CDC has indicated that the immediate health risk to the majority of Americans is low, the company is evaluating the potential impact on the business and is preparing a business continuity plan.

— Our most important objective is the safety of employees and customers.

— Reiterate the symptoms of coronavirus (fever, cough, and shortness of breath) and remind employees of common-sense everyday actions they can take to mitigate the spread of viruses, such as avoiding close contact with people who are sick; avoiding touching their eyes, nose, and mouth; washing their hands with soap and water for at least 20 seconds; and covering their mouth and nose with a tissue when coughing or sneezing and then throwing the tissue in the trash.

— All employees play a role in preventing the spread of viruses. The most important thing employees can do is stay home if they don’t feel well. Tell your employees not to report to work if they have any signs of illness, including, but not limited to, a fever, cough, shortness of breath, sore throat, or signs of another respiratory illness or virus, such as the flu. Assuming they are not diagnosed with COVID-19, inform them that they should not return to work until they are free of a fever or any other symptoms for at least 24 hours without the use of medication.

— Notify employees that they must immediately report to a designated person (the owner, an HR professional, or an upper-level manager) any contact they have had with a person who has been diagnosed with COVID-19 or who recently returned from an affected area with widespread or sustained community transmission. (See below for how to address such reports from employees.)

— Inform employees of environmental actions you are taking to help mitigate the spread of germs in the workplace. For example, additional scheduled office cleanings, the addition of hand sanitizing stations or hand sanitizers throughout the workplace, or the availability of disposable antiseptic wipes to wipe commonly used surfaces: door knobs, break room appliances, light switches, and other similar surfaces.

— Address any travel restrictions applicable to your business. If your employees travel domestically for business, if the travel is not essential, you may want to consider arranging for teleconference meetings until spread of the virus stabilizes. International travel should be handled in accordance with CDC advisories.

— Inform employees whom they can confidentially report any health or coronavirus concerns to. If you do not have an HR department or HR professional on staff, appoint a trusted manager to receive these concerns. Work closely with this individual to ensure that all concerns are appropriately addressed.

QUESTION 2:

What HR-related policies and procedures should our company consider

as part of our business continuity planning?

Any pandemic or health crisis plan needs to account for workforce reductions and how the business will continue to operate. In addition, as part of your planning, there are a number of HR-related policies and practices to consider:

— Sick and PTO policies. Does your policy allow for advances of unearned sick or PTO? If not, would you be willing to consider this during a health crisis? Does your policy permit employees to use the time to care for an ill family member? Would you permit employees to use available sick or PTO if they were needed at home to care for children due to school closures? Does your policy allow for PTO donations by one employee to another or would you be willing to offer this during a health crisis? Consider making consistent and reasonable modifications to your existing paid time off policies in the event of a health crisis.

— Medical leaves of absence policies. If your company is not covered under the FMLA, verify that you have a comprehensive written non-FMLA medical leave of absence policy. Ensure that your leave policy complies with applicable state and federal regulations. Be prepared to offer the leave to employees with coronavirus needs, even if they do not meet eligibility criteria for the leave.

— Identify any positions with duties that could be performed remotely. Not all positions are suitable for remote work and not all employees can work without direct supervision. Determine which positions may qualify for remote work and what obligations employees will have if they work remotely. Also consider strategies to minimize employee contact, such as flexible work schedules or staggered work times.

— Evaluate the company’s technical capabilities for teleconferencing remote workers and obtain any necessary equipment or software.

— Consider the impact of potential employee absences related to family needs (schools that close or family members in need of care).

— Determine if cross-training for vital functions is necessary and implement a plan for the training.

— If your company does not have an HR department or HR professionals on staff, designate a point person for employees to communicate confidential medical information to.

— Develop an internal communication strategy to keep employees informed of the company’s response plans and to share accurate information about the virus. This could include an information hub with regular postings on the company’s intranet. As part of this strategy, designate a point person to field questions about the information.

QUESTION 3:

What employment regulations do we need to consider when faced with a communicable disease in the workplace ?

Several, including the Americans with Disabilities Act (ADA), the Rehabilitation Act (for federal agencies and federal government contractors), the Fair Labor Standards Act (FLSA), the Occupational Safety and Health Act (OSHA), the Family and Medical Leave Act (FMLA), the National Labor Relations Ac t (NLRA), Title VII of the Civil Rights Act (Title VII), and corresponding state regulations. (See below for more information.)

When it comes to addressing workplace issues involving a potential or actual public pandemic—unlike individual employee health-related issues—these employment regulations must be considered in conjunction with advisories and information published by credible, reliable public health authorities such as the CDC and state departments of health.

QUESTION 4:

What do we do if an employee runs out of sick leave and cannot report to work for an extended time due to their own illness, a required quarantine,

or the illness of a family member ?

Employees in these situations should be placed on a leave of absence in accordance with the applicable policy at your company. If your business is covered under the FMLA , an FMLA leave should be initiated and the required process should be followed. If your business is not covered under the FMLA, a non-FMLA leave of absence should be initiated.

Both FMLA and non-FMLA policies should address pertinent leave-related provisions, such as documentation to substantiate the need for the leave, use of paid time off benefits during the leave, how insurance premiums are handled during the leave, and other important terms and conditions. Most medical leave policies require employees to use available sick or PTO while on leave. Once any accrued paid time off is exhausted, absent a disability insurance benefit that provides compensation for lost wages, the remainder of the leave is unpaid.

We encourage employers to be flexible with sick time policies and leaves of absence that are necessary due to the coronavirus. If an employee runs out of leave time or is not yet eligible for it and needs time off due to illness related to the coronavirus (or to care for a sick family member), we recommend that you grant the time off on an unpaid basis.

QUESTION 5:

Can we require a doctor’s note from an asymptomatic employee who we believe may

have been exposed to the coronavirus and

poses a risk of spreading the illness

to others in the workplace ?

Currently, under the ADA, employers can only require medical examinations of employees when there is a reasonable belief based on objective evidence that the employee poses a direct threat to the health or safety of himself/herself or others. The risk of a direct threat can only be considered when it poses a “significant risk of substantial harm” to others. A speculative or remote risk is insufficient.

Since current CDC guidelines do not recommend testing an individual for coronavirus unless he or she exhibits symptoms of the disease and meets other criteria , more likely than not, requiring an asymptomatic employee to submit to a medical exam based on a general assumption or speculation that the person may pose a risk to others would not meet the high standards under ADA for a significant risk of substantial harm to others.

In addition, if you require an asymptomatic employee to submit a doctor’s note based on an assumption that the person poses a risk of spreading coronavirus, you could be "regarding" the individual as a person with an actual or perceived impairment, which, in turn, would mean that he or she is covered under the ADA. Requiring a doctor’s note under these circumstances could form the basis of an allegation of disability discrimination.

QUESTION 6:

Can we require an asymptomatic employee who we believe may have been exposed to the coronavirus and poses a risk of spreading the illness

to others in the workplace to stay home without pay for a period of time?

I n this case, as with the above question, you could be "regarding" the individual as a person with an actual or perceived impairment, which, in turn, would mean that he or she is covered under the ADA. Sending an employee home without pay under these circumstances could form the basis of an allegation of disability discrimination.

In lieu of an employer-imposed leave of absence that is not based on visible signs of illness or the employee’s inability to perform essential job functions, a better option is to arrange with the employee to work remotely during the incubation period or to offer a voluntary paid leave of absence to the employee for a limited, defined period of time.

QUESTION 7:

We have an employee who is asymptomatic but he lives with someone who just returned from northern Italy, which is a region with widespread or sustained community transmission. This person (who lives with the

employee) doesn’t have any symptoms, but was placed under

a self-monitoring home quarantine. What, if anything,

should we do with our employee?

This situation is similar to the situations described in the above two questions; therefore, the same answer applies.

QUESTION 8:

Can I require an employee who completes a self-monitored home quarantine to submit a note from his or her healthcare provider verifying that the employee is not contagious and can return to work without limitations?

If the employee was out of work due to a self-monitored quarantine, had no symptoms of COVID-19, and did not contract the virus, you should not require the employee to submit a note from a healthcare provider as a condition of returning to work.

QUESTION 9:

Prior to returning to work, can we require an employee who was out of work due to a confirmed diagnosis of COVID-19 to submit a note from his

or her healthcare provider verifying that the employee is not

contagious and can return to work without limitations?

Yes, if this is consistent with your requirements for returning to work due to other contagious illnesses. In most cases, if the employee was placed on a medical leave of absence consistent with a comprehensive written leave policy, in keeping with the policy, a doctor’s note will be required prior to returning to work.

QUESTION 10:

We don’t have any known risks of exposure to COVID-19 in our workplace; what do we do if an employee in a customer-facing position informs us

that she has a current medical condition that creates an increased

health risk if COVID-19 is contracted and then asks if she can

work from home or move to a different position that

does not involve customer contact?

I f the employee's medical condition is unknown (not something you can see or otherwise know about, such as anxiety, recent pregnancy, ^* COPD, diabetes, or PTSD), in light of the request for an accommodation, you can require the employee to submit a note from her healthcare provider confirming that she has a medical condition and outlining the necessary accommodation that would enable the employee to perform his or her essential job duties. Once you have the note, you can determine if the request can be accommodated without imposing an undue hardship on the business.

If the employee’s healthcare provider does not agree that an accommodation is necessary because there is no known COVID-19 threat in the workplace (or for other reasons), you would not be obligated to grant the accommodation, but could do so if you choose. Keep in mind, however, that if you grant an employee an accommodation when it is not medically required, you may be faced with additional requests from employees and may have established a precedent that is difficult to meet in the future.

*Pregnancy is not a disability under the ADA; however, impairments related to pregnancy can be disabilities

if they substantially limit one or more major life activities or if they substantially limited major

life activities in the past. When this occurs, requests for reasonable accommodations must

be considered and granted, unless they create an undue hardship.

QUESTION 11:

Since a fever is one of the symptoms of COVID-19, as a proactive measure

to detect and prevent the spread of the virus, should we take our

employees’ temperatures when they arrive for work?

No! Taking an employee’s temperature could be considered a medical examination under ADA, since this procedure seeks information about an individual’s physical impairment or health. In accordance with the ADA, medical examinations of an employee must be job-related and consistent with business necessity. To meet this requirement, the employer must have a reasonable belief based on objective evidence that (a) the employee’s ability to perform essential job functions will be impaired by a medical condition OR (b) the employee will pose a direct threat due a medical condition.

As described above in questions 5-7, based on the CDC’s current guidelines, an employee who is asymptomatic would likely not meet ADA requirements associated with posing a direct threat. For this reason alone, taking employees’ temperatures under these circumstances would not be permitted.

Even if the ADA permits the taking of employees’ temperatures, we do not recommend that employers do so for a host of reasons related to significant risks that can arise from misreading temperatures to malfunctioning thermometers, advising employees about personal medical conditions, preventing the spread of germs on thermometers in the workplace, and obtaining confidential medical information about employees.

QUESTION 12:

How do we handle a request from an employee in a customer-facing position who asks to wear a mask as a protective measure against COVID-19?

Unless the employee has a medical condition that necessitates the wearing of a facemask when performing job duties (as verified by a healthcare provider, if necessary and appropriate), this request does not have to be granted.

In this situation, absent a medical condition, share CDC information about facemasks with the employee. Currently, the CDC does not recommend that people who are well wear a facemask to protect themselves from respiratory diseases, such as COVID-19 . Facemasks should only be worn by people who have symptoms of a virus to prevent the spread of the virus to others. According to the CDC, the use of a facemask is also crucial for healthcare workers and people who take care of someone in a close setting (at home or in a healthcare facility).

QUESTION 13:

We don’t have any employees with a confirmed diagnosis of COVID-19;

what do we say to an employee who reports a fear or concern

about contracting coronavirus in our workplace ?

Your first response should be to listen carefully to the concern. Do not suggest that the concern is unfounded or an overreaction. Obtain details to determine if there is a current actual or potential workplace hazard that you are unaware of (for example, an employee who has close contact with someone who just returned from an affected geographic area, such as northern Italy). In accordance with OSHA, employees who report workplace safety hazards cannot be retaliated against for reporting the hazard.

If the employee reports a workplace hazard that you are unaware of, immediately look into it and address it. If there is no current or actual workplace hazard, find out what exactly the employee is asking for (if anything) and determine if the request can and should be honored.

Under OSHA’s General Duty clause, employers have an affirmative duty to protect their employees from “recognized hazards.” Although there is no specific OSHA standard addressing communicable diseases, taking precautions to prevent the spread of them could potentially fall under this requirement. In addition, certain industries may be subject to specific OSHA standards and directives that relate to the spread of potentially infectious materials, such as hospitals and medical offices subject to OSHA’s Bloodborne Pathogens Standard. Employers should refer to the OSHA website for more information about their obligations.

QUESTION 14:

Does it matter if two or more employees raise a collective concern about the health and

safety of our workplace ?

Yes! Employees who collectively raise concerns about working terms or conditions may be protected under the National Labor Relations Act . Under this Act, employees have the “right” to raise group concerns about safety and health, including requests for additional personal protective equipment (PPE) to prevent exposure to COVID-19.

Should two or more employees raise a collective concern about workplace safety or health (in-person or via social media, including making negative comments about the company), listen to the concern, address it as needed, and ensure that the employees who raised the concern are not disciplined or retaliated against for doing so.

QUESTION 15:

If an employee contracts COVID-19, what, if anything,

should we say to other employees ?

If an employee is confirmed to have COVID-19, inform other employees about their possible exposure; however, in keeping with the ADA, you must maintain the confidentiality of the employee with the confirmed illness.

Remain Vigilant

Because this is a rapidly evolving situation, employers should regularly monitor information from the CDC and keep employees informed of changes affecting the company's response plans. Along these lines, t he recommendations in this e-bulletin may change at any time, especially if coronavirus becomes classified as a pandemic by health officials.

If you are a client of our firm, feel free to contact us with questions about coronavirus and the HR implications of a communicable disease in the workplace.

As a client of our firm, if you have questions about HR practices or solutions, state or federal employment regulations, or any other HR need, call or email our office for assistance.

Seawright & Associates

(407) 645-2433

[email protected]

seawright.com

Jean Seawright

(407) 645-2433 x 14

[email protected]

Jean Martin

(407) 645-2433 x 12

[email protected]

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The information in this bulletin and in any attachments is for general purposes only. Please speak with a Seawright & Associates consultant about your specific needs before taking any action. Seawright & Associates does not engage in the practice of law. Information in this bulletin is not intended to be legal advice. Should you wish to have a legal opinion, we recommend that you speak with a qualified attorney.