Insights

The latest news, articles, and events from the attorneys at Lerch, Early & Brewer.

Lerch Early Insights

COVID-19 Resource Center

Lerch Early is monitoring COVID-19 and its impact on our clients and communities.

As part of this effort, we're constantly working on fresh content to both inform and to meet your needs. Please check out our

COVID-19 Resource Center

Publications

What Employers Should Be Considering to Prepare for Coronavirus (COVID-19) in the Workplace

The dangerous, spreading novel coronavirus known as “COVID-19” has alarmed people all over the world.

In the United States, employers are working to comprehend the measures they should be taking to prepare for COVID-19 in the workplace, and also to more properly and fully understand their potential liability for claims related to COVID-19.

This article examines many, but not all, of the issues that employers either are or should be considering at this challenging time.

1. QUESTION: What is an important and effective first step that employers can take to prepare for a possible outbreak of COVID-19 in the workplace?
ANSWER: Develop a response plan. A sound response plan should include, among other things:

  1. A leader, or group of leaders, who will be in charge of creating and implementing the plan;
  2. Identification of essential personnel;
  3. A review of leave policies with an eye towards whether to relax such policies as circumstances warrant;
  4. Securing computer systems, documents, files (including electronic files), etc.;
  5. Creation and communication of remote work alternatives;
  6. Communicating regularly with employees about COVID-19 and best practices for preventing the spread of the virus; and
  7. Exploring insurance alternatives (see below).

2. QUESTION: Are there recognized authorities for information about COVID-19?
ANSWER: Yes. The U.S. Department of Health and Human Services (HHS), The Centers for Disease Control and Prevention (CDC), and the World Health Organization (WHO) are definitive sources of information about Influenza pandemics, including COVID-19. Below are several reference links with information.

3. QUESTION: Are there other effective, common sense recommendations that employers should be sharing with employees to prevent potentially communicable illnesses such as COVID-19?
ANSWER: Yes. According to the CDC, the best way to prevent illness is to avoid being exposed to this virus. The CDC recommends everyday actions to help prevent the spread of respiratory diseases, including:

  • Avoid close contact with people who are sick.
  • Wash your hands often with soap and water for at least 20 seconds, especially after going to the bathroom; before eating; and after blowing your nose, coughing, or sneezing. (If soap and water are not readily available, use an alcohol-based hand sanitizer with at least 60% alcohol.)
  • Avoid touching your eyes, nose, and mouth.
  • Stay home when you are sick.
  • Cover your cough or sneeze with a tissue, then throw the tissue in the trash.
  • Clean and disinfect frequently touched objects and surfaces using a regular household cleaning spray or wipe.
  • Follow the CDC’s recommendations for usingafacemask:
    • CDC does not recommend that people who are well wear a facemask to protect themselves from respiratory diseases, including COVID-19.
    • Facemasks should be used by people who show symptoms of COVID-19 to help prevent the spread of the disease to others.

4. QUESTION: Are there recognized symptoms of COVID-19?
ANSWER: Yes. The CDC reports that the current symptoms for patients with COVID-19 have included mild to severe respiratory illness with fever, cough, and difficulty breathing.

5. QUESTION: How much information can an employer covered by the ADA request from employees who are feeling ill at work or who call in sick?
ANSWER: ADA-covered employers may ask these employees if they are experiencing flu-like symptoms such as chills or fever, cough or sore throat. Employers must maintain information about employee illnesses as a confidential medical record in accordance with the ADA. If the COVID-19 flu becomes severe, these types of inquiries, even if they are disability related, are justified based on a reasonable belief based on evidence that a severe form of pandemic Influenza poses a direct threat.

6. QUESTION: As a general matter, can employers send employees home if they display flu-like symptoms during a pandemic?
ANSWER: Yes. The CDC states that employees who become ill with symptoms of flu-like illness during a pandemic should leave the workplace. Further, advising or instructing employees to go home is not a disability related action if the illness is comparable, for example, to the seasonal flu. Also sending employees home would be permissible if the employees’ symptoms were severe enough to create a “direct threat” (see Question 8 below).

7. QUESTION: Do employers need to pay employees who miss time as a result of COVID-19?
ANSWER: It depends. As a general matter, employers must honor the terms of any contract that they may have with employees regarding payment of wages. If there is no written contract that governs payment of wages, then the issue becomes whether an employee is hourly or exempt. In situations where an employer has not guaranteed a specific number of hours to an hourly employee or a set amount of wages, then the employer is generally not obligated to pay the employee for time missed due to COVID-19.

On the other hand, in situations where, for example, employers send an exempt employee home for an entire week, they would not have to pay that employee for that particular week. If, however, an exempt employee who is sent home by an employer performed work for a portion of the week (for example, two hours), then in that circumstance an employer would have to pay the exempt employee for the entire week.

8. QUESTION: How is the ADA, or any similar state or local law, relevant to preparation for COVID-19?
ANSWER: The ADA is relevant to pandemic preparation in three primary ways. First, the ADA regulates inquiries and medical examinations that employers can conduct for employees and applicants, including others who do not have disabilities as defined under the ADA.

Second, the ADA prohibits employers from excluding individuals with disabilities in the workplace for health or safety reasons unless they pose what is known as a “direct threat” either to themselves and/or others; that is to say, a significant risk of harm to themselves or others even with a reasonable accommodation.

Third, the ADA requires reasonable accommodation for individuals with a disability as long as it does not create an undue hardship for employers during a pandemic.

9. QUESTION: Why is “direct threat” an important concept for employers to understand as they prepare for COVID-19?
ANSWER: Primarily because, as noted, the ADA prohibits employers from excluding employees with disabilities in the workplace for health or safety reasons, unless they are a direct threat to themselves or others. Whether COVID-19 rises to the level of direct threat typically depends upon the severity of the illness. If the CDC or state or local public health authorities conclude that the illness is similar to a seasonable flu, it would generally not pose a direct threat or warrant disability related inquiries or medical examinations.

However, if the CDC or state or local health authorities would determine that the COVID-19 is significantly more severe, it could pose a direct threat. Importantly, an assessment by the CDC or public health authority would provide the objective evidence needed for a disability related inquiry or medical examination.

10. QUESTION: Where should employers look for an informed assessment of the severity of COVID-19?
ANSWER: During a pandemic, employers should rely on the latest CDC or state or local public health assessments.

11. QUESTION: Can ADA covered employers take the temperature of employees to determine whether they have a fever?
ANSWER: If a pandemic flu becomes widespread in the community as determined by state or local authorities or the CDC, then employers can measure employees’ body temperature. It is important that employers keep in mind that some people with the flu do not have a fever.

12. QUESTION: Can employers prohibit employees from business-related travel internationally and domestically?
ANSWER: Yes.

13. QUESTION: Can employers strongly encourage employees not to travel internationally or domestically to affected areas for personal reasons when there is a pandemic flu?
ANSWER: Yes, they can and they should.

14. QUESTION: When an employee returns from travel, particularly to an affected area, does the employer have to wait until the employee develops flu-like symptoms before asking questions about exposure to a flu such as COVID-19 during the trip?
ANSWER: No, as these questions would not be considered disability related.

15. QUESTION: May employers require employees who have traveled to an affected area as defined by the CDC to “self-quarantine”?
ANSWER: Yes. As a general rule, employers can require that employees who have traveled to an affected area to self-quarantine for a period of at least 14 days before returning to work.

16. QUESTION: Can employers require employees to maintain infectious control practices such as regular handwashing?
ANSWER: Yes. The CDC recommends that employees:

  • Wash their hands with soap and water for at least 20 seconds especially after blowing their nose, coughing or sneezing, going to the bathroom and before eating or preparing food;
  • Avoid touching their eyes, nose and mouth with unwashed hands;
  • Staying home when sick; and
  • Covering their cough or sneeze with a tissue and throwing the tissue in the trash.

17. QUESTION: May an employer require or encourage employees to work remotely?
ANSWER: Yes. Remote work arrangements are considered an effective infectious control strategy. Also, employees who are at high risk for complications of COVID-19 may request remote work as a reasonable accommodation to reduce their chances of infection during a pandemic.

18. QUESTION: Can an employer require its employees to wear personal protective equipment such as face masks, gloves, or gowns designed to reduce the transmission of pandemic infection?
ANSWER: Yes. An employer may require employees to wear personal protective equipment during a pandemic. However, where an employee with a disability needs a related reasonable accommodation under the ADA (such as non-latex gloves), the employer should provide these unless there is an undue hardship.

19. QUESTION: May an employer ask an employee why he/she has been absent from work if the employer suspects it was for a medical reason?
ANSWER: Yes. Employers are entitled to know why employees have not reported for work. Further, asking an individual why an individual did not report to work is not a disability related inquiry.

20. QUESTION: Can employers ask employees if they have a pre-existing health condition that would make them susceptible (or more susceptible) to COVID-19?
ANSWER: No. The ADA generally prohibits employers from asking employees questions about their pre-existing health conditions.

21. QUESTION: May employers require employees who have been away from the workplace during a pandemic to provide a doctor’s note certifying fitness to return to work?
ANSWER: Yes, for two possible reasons. First, these inquiries may be permissible because they would not be considered disability related. Second, if the COVID-19 virus were severe, questions could be justified under the ADA standards for disability related inquiries of employees. Doctors and other healthcare professionals may be too busy to provide the fitness for duty certifications. Accordingly, employers should consider other approaches to obtain this information such as an email, a form, or a stamp by a local clinic that certifies that the individual does not have the COVID-19 virus.

22. QUESTION: Are there other statutes besides the ADA that can potentially be implicated insofar as COVID-19 is concerned?
ANSWER: Yes. The Occupational Safety and Health Act (OSHA) contains a general duty clause which essentially states that employers must protect their employees against recognized hazards to health or safety that may cause death or serious injury. The Family Medical Leave Act (FMLA) applies to employers who have 50 or more employees. Under FMLA, employers are required to provide up to 12 weeks of unpaid leave to an employee who has a serious health condition (which is defined relatively broadly under the statute), as well as in circumstances where a child, spouse or parent of the employee becomes ill. Various states and localities provide other types of paid leave that must be followed.

Also, the National Labor Relations Act (NLRA) applies during a COVID-19 outbreak. This means, for example, that unionized and non-unionized workers cannot be disciplined for engaging in what is known as “concerted activity.” Concerted activity would include communications among employees about workplace health and safety issues.

23. QUESTION: Is it possible that employees could be eligible for workers’ compensation?
ANSWER: Yes, if the employee becomes ill as a result of exposure in the workplace, then he/she may be entitled to workers’ compensation benefits.

24. QUESTION: Is it possible that employees could be eligible for disability benefits?
ANSWER: Yes, it is possible depending upon the terms of an employer’s short-term and/or long-term disability policy.

25. QUESTION: Apart from the statutes mentioned above, are there other types of legal theories upon which employers could face liability in connection with an outbreak of COVID-19?
ANSWER: Yes. A number of jurisdictions require that employers take appropriate reasonable care to prevent guests, visitors, and outsiders from hazards in the workplace that are not open and obvious. Accordingly, an employer that learns that its premises have become contaminated or infected in any way may have a duty to warn not only its employees but visitors and guests of this circumstance.

26. QUESTION: Can employers consider protected leave that employees take in connection with absences relating to COVID-19 in performance evaluations and in employment decisions?
ANSWER: No. An employer should not consider protected leave taken by employees in connection with COVID-19 when evaluating the job performance of employees or in making decisions that could have an adverse effect on employees.

27. QUESTION: Is there insurance available for COVID-19 related matters?
ANSWER: There may be. Companies should explore whether they have business interruption insurance. They should also confirm whether their Employment Practice Liability Insurance (EPLI) would extend to claims that have their origin in an event associated with the COVID-19 virus including, for example, a wrongful termination claim, a failure to accommodate claim, etc.

28. QUESTION: What actionable and effective steps can an employer take to reduce potential liability as a result of COVID-19?
ANSWER: Employers should consider the following:

  1. Reviewing their leave policies for compliance with applicable law;
  2. Relaxing their leave policies in light of COVID-19 related absences;
  3. Creating or revising remote work policies;
  4. Educating supervisors and managers about the importance of maintaining employee confidentiality regarding health matters;
  5. Regularly communicating with employees regarding preparedness actions that the organization is taking regarding COVID-19;
  6. Carefully reviewing requests for leave and accommodations on an individualized basis;
  7. Determining when and under what circumstances attendance can be used to as a factor in performance decisions (an employer should not use protective leave as a basis for making adverse employment decisions);
  8. Encouraging employees who are not feeling well and/or experiencing flu symptoms to go home and not return to work until they are symptom free, or have authorization from their healthcare provider to return to the office;
  9. Making resources available to employees who have questions about COVID 19;
  10. Being prepared to address any questions that clients, vendors, and other strategic partners may have about how the organization is preparing for COVID-19;
  11. Assessing obligations to guests and visitors to maintain a safe workplace, and associated measures to ensure that the workplace is safe for guests and visitors (and, of course, employees); and
  12. Exploring and fully understanding insurance coverages that may be applicable to claims that have their origin with COVID-19.

Marc Engel is an employment attorney experienced in providing successful strategies for managing employees and preventing employment claims. For more information on what your company should consider when it comes to coronavirus in the workplace, contact Marc at 301-657-0184 or mrengel@lerchearly.com.

Paul A. Starkman, an employment partner at Clark Hill, contributed to this article.

Services

This content is for your information only and is not intended to constitute legal advice. Please consult your attorney before acting on any information contained here.

Share

Email Confirmation

Thank you for your interest in Lerch, Early & Brewer. Please be aware that unsolicited e-mails and information sent to Lerch Early though our web site will not be considered confidential, may not receive a response, and do not create an attorney-client relationship with Lerch Early Brewer. If you are not already a client of Lerch Early, do not include anything confidential or secret in this e-mail. Also, please note that our attorneys do not seek to practice law in any jurisdiction in which they are not authorized to do so.

By clicking "OK" you acknowledge that, unless you are a current client, Lerch Early does not have any obligation to maintain the confidentiality of any information you send us.