Coronavirus: An Employer’s Action Guide – Part II

Daily headlines about the growing coronavirus threat have many employers concerned that they are not doing all they should to protect employees without undue disruption to operations. Here are some answers that may inform your own response plan.

This is a follow-up to our original post on February 14, 2020.

Do declared states of emergency, as in San Francisco, change standard workplace policies or laws?

Not necessarily. Localities may declare emergency status to access greater resources for prevention and preparedness, in hopes of avoiding the spread of disease. Such measures would not directly impact standard workplace policies or laws in most cases, although employers should monitor any such declarations in locations where they have employees for specific provisions applicable to employers.

What is the extent of coverage for FMLA/sick leave if we start to see school/daycare closures?

Although FMLA time is not usually available for a normal bout of the flu, it may well be available to eligible employees who contract the coronavirus or who have an immediate family member who contracts the virus and needs the employee’s care. A medical condition lasting more than three consecutive calendar days, with a visit to a health care provider and either a follow-up visit, with both visits within certain time frames, or other treatment such as a prescription, qualifies as a serious health condition under the FMLA. Some states also have sick leave laws that may provide time off with job protection, although, as with FMLA leave, not necessarily with pay.

Those forms of protection do not usually extend to time off work that is needed to care for a child who is healthy but cannot go to school or daycare because of a closure to avoid spread of infection. Unless employers or collective bargaining agreements provide options such as remote-work arrangements or use of available time off under sick leave or PTO policies to care for a child who is home because of a disease prevention situation, such employees could be at risk under attendance policies.

How can employers balance the obligation to ensure a healthy and safe work environment with privacy and antidiscrimination obligations under state and federal laws?

Proactive communication to the general employee populace about measures that the employer is taking for prevention and would take in the case of a report of an employee testing positive for the coronavirus can pay off if there is an actual individual situation to be addressed. If an individual situation does arise, be very thoughtful about who really has a need to know and what each person needs to know to minimize the risk of disclosure of confidential medical information and discrimination based on actual or perceived medical condition, ethnicity, etc. Encourage employees who have concerns to bring them forward to Human Resources rather than engaging in speculation and “water cooler” discussion that can easily lead to misinformation and unfounded fears. Establish a line of communication for employees to submit questions related to coronavirus prevention and preparedness measures, post answers to questions that may be of general interest, and provide ongoing assurance that the company is very mindful of safeguarding employee health and safety in a manner that is appropriately respectful of everyone’s privacy.

Are there any other considerations/changes that employers need to think about, given the CDC’s recent announcements urging the US to prepare for an outbreak?

Designate a point person to stay on top of developments, manage the communication process, and receive and address employee concerns, supported by a response team representing functions such as Human Resources, Health & Safety, IT, Facilities Management, Production, and other functional areas that need to anticipate action steps should the threat escalate. Look ahead to planned company events, such as staff retreats and sales meetings to anticipate the possibility of a need to limit travel to avoid employee exposure. Stock restrooms and work areas with plenty of supplies for hand washing and sanitizing. Anticipate employee support, customer service, technology, and other needs in the event of a business interruption. Review communications very thoughtfully so as not to either trivialize or escalate employee concerns.

Why is it not a good idea for employers to take employees’ temperature before they enter the workplace? Is it a prohibited medical examination under the Americans with Disabilities Act?

Yes, the EEOC’s position is that taking body temperature is a form of medical examination under the ADA, which means that doing so must be job-related and consistent with business necessity. That evaluation should be made on objective evidence and not simply general news reports, personal experience, fear, or assumptions. Employers in the U.S. should closely monitor guidance from the Centers for Disease Control, because the EEOC has cited the CDC as a form of objective information that could establish job-relatedness and business necessity. So, if and when the CDC recommends this measure, employers have a very defensible opportunity to implement it, but doing so earlier would trigger risk of an ADA violation.

Is taking the temperature of employees before they enter work ineffective, since people may have the virus but not yet have a fever?

That certainly is a complication with this virus. A fever of 100.4+ degrees is symptomatic of acute respiratory illness, according to the CDC, but a person may be carrying the virus with few (if any) noticeable symptoms. If the situation worsens and the CDC were to recommend temperature tests for employees, that would be a defensible mitigating measure that employers could take, but they should continue other measures, such as providing plenty of hand sanitizer and cleaning supplies (although that could become challenging if supply shortages occur), requiring frequent hand washing (which the ADA allows), sending anyone with severe coughing or sneezing home, even if the person does not have a fever, allowing time off for employees who are caring for someone at home with a fever, etc.

One thing to keep in mind is that while the EEOC gives deference to CDC guidance, it has made clear that the reliance should be on current guidance for the community where the employer is located. Employers should adapt their prevention programs based on reported conditions on a facility-by-facility basis.

Should employers allow employees who have been told not to come onsite to work remotely? What considerations are relevant if they’re exempt versus nonexempt?

Allowing an employee to work remotely in lieu of time off (especially unpaid) might be considered a reasonable accommodation for a disability. Of course, the individual may not actually be disabled and, if he or she is merely regarded as actually or potentially disabled, may not be entitled to accommodation — but if the individual can be fully productive with an acceptable quality of work while telecommuting, employers can greatly reduce the risk of an ADA claim by allowing employees who have been at risk of exposure to work from home. Keep in mind, though, that the ADA does not require employers to lower quality or productivity standards as a reasonable accommodation. Also, employers who allow work-from-home arrangements may set reasonable expectations regarding working schedules, response time, output, prompt communication, etc. So if a remote arrangement does not result in a comparable contribution to what would be expected from working onsite, the employer could defensibly provide a leave of absence as the next-best form of reasonable accommodation.

When evaluating potential telecommuting arrangements, be sure to consider whether there would be appropriate protections regarding confidentiality and data security. This analysis should take into account the nature of the business and the types of information accessed in the employee’s role. Inability to ensure sufficient safeguards may make remote work infeasible.

Another consideration is that, even for jobs that could be done remotely, the employee may not have an appropriate set-up for that arrangement, especially if the need arises on short notice. Home offices can be held to reasonable standards for protection of confidential information, backup of information according to standard company requirements for business continuity, etc. Employers should work with employees who are directed to work from home to provide the means to do so (within reason), keeping in mind that in some states, including California, employees cannot be required to pay for their employers’ business expenses, so an employee working from home may be entitled to reimbursement for things like internet access charges, supplies, and so on.

If remote work isn’t feasible and the employer imposes time off, U.S. employers generally need not pay nonunionized employees if the time is not covered by an available form of employer paid time off or a form of state or local paid sick leave. For nonunionized hourly (nonexempt) employees, all time off work could be unpaid. For salaried (exempt) personnel, however, under federal wage/hour law, the time may be unpaid only if the employee performs no work during the entire workweek that is treated as unpaid.

Should employers “quarantine” employees who have travelled to a country designated as a level one, two or three travel health notice by the CDC and, if so, for how long?

There is no clear-cut guidance on this, but if someone is returning from a level-three country, it seems defensible to require that person to work remotely for a period of time or to take time off if remote work isn’t feasible. Current CDC guidance indicates that symptoms typically appear within 14 days after exposure, so that would be the best source for determining the period of time the person should work remotely. Focus on remote work arrangements or leave and avoid using the term “quarantine” due to possible stereotyping and stigma and because it might imply that the employer is mandating isolating health measures beyond what employers may do under the ADA.

It’s a closer call for level-one and -two countries. The ADA standard is that the employer should base decisions on objective evidence that allowing the individual to come to work would pose a direct threat to the health and safety of that person or others. So, be wary of forcing someone who has traveled to such countries off work, especially without pay, without further evidence that the person has been at high risk of exposure. Do be sure to monitor the CDC site on a daily basis, as this situation is changing fast, and travel advisories are likely to be updated fairly often.

May we lawfully require employees who have been off work for flu-like symptoms or potential coronavirus exposure to provide us with medical releases from their health care providers before they may return to work?

Yes. CDC guidance suggests that employers consider foregoing those releases – but their concern is that issuing those will be too burdensome on health care providers, and hard to get, if health care professionals are inundated with treating people with flu symptoms that could be due to the virus. We suggest keeping the requirement in place but being flexible about format. If an initial off-work note says “may return to work 14 days after all symptoms subside,” for example, why make the person go back to a provider to say, “I’ve been fine for two weeks now,” when the provider has no way of verifying that anyway? That may be sufficient documentation if the elapsed time is consistent with the provider’s directions. Also, consider accepting expedited forms of release such as an email from the provider in lieu of a note that requires a return visit in person by the employee.