The coronavirus outbreak, known as COVID-19, has been spreading around the world, including the United States. Employers must respond in rapid fashion and face a series of questions regarding the impact the virus will have on the workplace. Below are answers to five questions all companies must know.
What if an employee presents with symptom of COVID-19? Can we require the employee to leave work, and stay home?
Yes. If an employee presents at work with symptoms generally associated with COVID-19, e.g. a fever or difficulty in breathing, especially after being in a high-risk location, the employer may send the employee home, and require that the employee remain at home to protect the other employees in the workplace from being infected, for the recommended 14-day quarantine period. The legitimate business reason for doing is the Americans with Disabilities Act’s (“ADA”) direct threat defense, specifically, that the employee’s presence would be a “direct threat” to the health or safety of the employee or others that cannot be reduced or eliminated by reasonable accommodation.
While an employee may allege that he or she is being “regarded” as disabled under the ADA, or that he or she is being singled out based on his or her particular race, the direct threat defense under the ADA should protect employers who are applying this policy uniformly and in a non-discriminatory manner.
What if an employee voluntarily discloses that he or she has tested positive for COVID-19 while having been in the workplace and working closely with others?
The answer is largely the same as above: the employee should immediately be sent home and required to stay home. Note, an employee who has been diagnosed with COVID-19 would qualify for leave under the Family and Medical Leave Act (“FMLA”) as such an infection would constitute a serious health condition under FMLA. Under the Occupational Safety and Health Administration (“OSHA”), all employers are required to provide a safe and health workplace, and under the ADA’s direct threat defense, that employee poses a direct threat to the health and safety of others in the workplace. Employers also should request that the infected employee identify all co-workers whom he or she has come in close contact with in the workplace in the past 14 days, and since the positive test. The employer should inform those employees that they may have been exposed to COVID-19 and sent home to seek treatment from their health care provider to ensure they have not contracted COVID-19. It is important for employers to remember their obligation to not violate confidentiality laws by disclosing the name of the infected employee to others.
Is an employer required to pay employees whom it is prohibiting from returning to work based on its reasonable belief that the employee may have been exposed to, or has contracted COVID-19?
The answer is largely dependent on the employer’s specific policies and the employee’s specific classification under the Fair Labor Standards Act (“FLSA”). Exempt employees must be paid their full salary for any workweek in which they perform more than a de minimus amount of work. That payment may consist of the required use of accrued paid time off, unless such required use is inconsistent with the employer’s paid time off policy. Once the accrued paid time off is exhausted, the employer may not deduct from an exempt employee’s salary unless the employee performs no services for the entire workweek. Non-exempt employees are only entitled to be paid for any time he or she is performing work; again, absent an employer’s paid time off policy and/or state or local law providing otherwise (e.g. paid sick leave, PTO or vacation).
Can employers require employees whom its suspects have been exposed to, or have contracted COVID-19, be tested as a condition of returning to work?
Yes, under the ADA’s direct threat defense, and its obligation under OSHA, employers may require such employees to undergo job-related fitness for duty exams prior to returning to work, which includes confirmation by the employee’s health care provider of a negative test result.
Can employer international or domestic travel to high risk locations?
So long as the travel is for business related reasons, yes; if for personal reasons, then likely not, or face a potential national origin discrimination claim if the personal travel is to the employee’s home country. However, upon the employee return, especially if the travel was too a high-risk location, the employer should require the employee to stay home for the 14-day quarantine period and require a fitness for duty exam to return to work.
By Scott Cruz, Partner, Labor and Employment Practice Group at Greensfelder, Hemker & Gale. Scott can be reached at 312-345-5008; scruz@greensfelder.com.