Alert: Coronavirus pandemic raises numerous workplace questions
COVID-19DisabilityLeave LawsSafety and Health
The United States has been hard hit by coronavirus in the past week and Vigilant has received a variety of questions from members about this evolving situation. We previously reported on how to handle situations with employees who seek to return to the workplace after traveling to areas affected by the virus. Here are a few of the additional questions we’ve received, along with some resources that may help you prepare for an outbreak in your community or workplace:
- What should we be doing to prevent coronavirus in our workplace? The Centers for Disease Control and Prevention (CDC) and the federal Occupational Safety and Health Administration (OSHA) have developed great resources for employers to implement steps to prevent the spread of illness at work. Much of the guidance involves common sense steps to avoid spreading disease (e.g., wash hands frequently, avoid contact with sick people, routinely clean frequently touched surfaces, etc.). An easy step you can take is sharing this advice with your employees, ensuring that you have plenty of soap and/or hand sanitizer available, assigning someone to regularly clean items such as door knobs that multiple employees touch, and implementing social distancing. According to the CDC, thoroughly washing your hands with soap and water is generally more effective than using hand sanitizer. If soap and running water isn’t available, hand sanitizer is the next best alternative as long as it contains at least 60 percent alcohol. Your safety committee is a useful internal resource to disseminate information to employees and encourage coworkers to use good hygiene. The CDC offers a variety of posters to promote handwashing.
- Should we provide face masks or respirators to employees who want to avoid getting sick? No, unless you are in the health care field. The CDC doesn't recommend that the general public wear face masks or respirators for a number of reasons. First, only fitted respirators have shown to be effective to prevent exposure to this infectious disease and only if the respirator is worn properly. Second, the purchase and use of respirators by the general public may cause a shortage of equipment needed by health care workers. The U.S. Surgeon General has asked the general public to stop buying respirators unless they’re sick or in the health care field. Finally, as an employer, if you provide personal protective equipment (PPE), you also have the obligation to ensure that employees use it properly. If fitted respirators aren’t needed for the work your employees are doing, you shouldn’t take on the responsibility of ensuring proper use of that equipment. However, if you allow employees to voluntarily use their own respirators for this purpose, you’ll need to understand your responsibilities to ensure proper use of the respirator. See Vigilant’s Model Form, Respirators: Requirements for Voluntary Use. Employers in the health care industry may need to provide face masks, respirators, or other PPE to ensure the safety of their employees. If you’re in the health care industry, you should review and follow CDC guidelines and other applicable regulations relevant to your field. California employers in the health care industry should also review and comply with the state’s aerosol transmissible disease standard.
- Schools have been closed; can an employee take time off for that? Paid sick leave laws in Oregon and Washington, as well as ordinances in some cities such as Seattle, Tacoma, and San Diego, include protections when schools, day care facilities, or businesses close for public health emergencies (which would include closures for the coronavirus outbreak). Be aware that these protections apply regardless of the age of the child (even the school closure for an 18-year old high school student would qualify). For more information about paid sick leave eligibility, see Vigilant’s Legal Guides, Paid Sick Leave Laws: California, Oregon, Washington, and Federal, Paid Sick Leave Laws: California Local Ordinances, and Paid Sick Leave Laws: Washington State and Local Ordinances.
- Should we relax our attendance policy during the coronavirus outbreak? The coronavirus epidemic is bringing about unprecedented circumstances. Every employer will need to evaluate whether (and how) to adjust their normal policies, including attendance, paid time off, remote work, and other workplace policies. It’s best to stay flexible in your approach as circumstances and projections by health officials continue to evolve. You should also consult with an employment attorney before taking any disciplinary action for an employee who needs to miss time due to a coronavirus absence. If you have a unionized workforce, keep in mind that you should review your collective bargaining agreement (CBA) for any relevant language and then loop in the union to give them an opportunity to bargain over any temporary adjustments to your policies. Subject to any restrictions in your CBA, your ability to decide whether an employee can work falls into your general right to manage your workforce.
- What should we do if an employee comes to work sick? If an employee is exhibiting symptoms that are concerning, you should immediately isolate them from other employees, customers, or vendors, and send them home. Employees shouldn’t return to work until they are symptom-free for at least 24 hours. If employees test positive for coronavirus, you can require them to follow the requirements of public health authorities before coming back to work; this could include isolation at home, quarantine at a health care facility, or hospitalization. The employee’s health care provider will determine when the employee is safe to return to work. Keep in mind that health care providers are currently overwhelmed by this outbreak and may not be able to complete the normal paperwork that you would require from employees returning to work after an illness (e.g. medical certification of a serious health condition or fitness for duty). Here is a statement from the CDC on this issue: “Do not require a healthcare provider’s note for employees who are sick with acute respiratory illness to validate their illness or to return to work, as healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely way.” Therefore depending on conditions in the local community, you may need to consider suspending your normal requirements for employees to provide a fitness-for duty note when returning to work after an illness. In California, if you send nonexempt (overtime-eligible) employees home after they report for work, be sure to comply with California law on reporting time pay.
- Can we take our employees’ temperatures to ensure they don’t have a fever at work? Possibly. While taking an employee’s temperature qualifies as a medical exam under the federal Americans with Disabilities Act (ADA), you can do so if necessary to address a direct threat to the health of safety of your workplace. The federal Equal Employment Opportunity Commission (EEOC) has said that taking an employee’s temperature would be okay under the ADA in times of a pandemic. At this point, the CDC has instructed specific affected areas to conduct employee health screens when employees arrive at work (which may include taking an employee’s temperature). Notably, the CDC has instructed employers in the Seattle area (King, Pierce, and Snohomish Counties) and employers in Santa Clara, California, to take these measures. Employers should keep a close watch on CDC guidance in their communities, as it may alter the measures they need to take with employees. At this point, unless the CDC advises you to take an employee’s temperature, we do not recommend doing so. For employers who decide to conduct health screens, be sure that you are doing so hygienically. For example, you should either use single-use thermometers or follow sanitation guidelines for cleaning your thermometer if using it on more than one employee.
- Can we require an employee to be “quarantined,” even if they don’t show symptoms of being sick? Possibly, but you should closely follow the CDC's risk assessment guidance as you’re making your decision. The CDC has developed categories that tell you which individuals fall within high, medium, low, and no risk categories, even when they aren’t exhibiting symptoms of illness. Currently, “high-risk” individuals include those who: (1) live with someone who has tested positive for coronavirus; or (2) have traveled from Hubei Province, China. “Medium-risk” individuals include people who: (1) have had close contact with an individual who has tested positive for coronavirus; (2) live with someone who has tested positive, but have consistently followed precautionary guidelines to avoid contracting the illness themselves; or (3) have traveled to mainland China, but don’t fit within the high-risk category. “Low-risk” individuals may have been exposed to someone infected with coronavirus, but haven’t had close contact with an infected person. The CDC indicates that individuals in the “low” or “no risk” categories shouldn’t be excluded from public places, including the workplace. For example, if an employee’s child attended a school that has been closed for a coronavirus outbreak, but didn’t have close contact with the infected person, then the employee and their family would likely be in the low-risk category (meaning you don’t have a good reason to exclude them from the workplace). Individuals in the medium-risk category don’t necessarily need to be excluded from the workplace, but the CDC advises that they should limit interactions with others. You may have a good reason to exclude a medium-risk individual from your workplace, or to assign them to a position where their interaction with others will be limited, but each situation must be individually evaluated. If an individual falls within the high-risk category, the CDC recommends that they be quarantined for at least 14 days from their exposure. Keep in mind that these categories may change as the outbreaks evolve (e.g. the risk categories may be updated to include travel to other parts of the world, or places within the United States, depending on the severity of new outbreaks). You should always review the latest CDC guidelines before excluding an employee from the workplace and talk with your Vigilant Law Group employment attorney to ensure you’re considering all the relevant employment laws in your decision-making.
- How should we pay employees if we send them home or if they’re quarantined or choose to stay home from work? An employee’s entitlement to pay will depend on a variety of factors, such as: whether they’re exempt or nonexempt from overtime; whether their time off qualifies for paid sick leave; what’s available under your applicable paid time off, vacation, or sick leave policies; and whether any other pay benefit may be available to cover their absence (e.g. Washington Paid Family and Medical Leave, short-term disability, etc.). If you send an employee home, they should be allowed to use any accrued paid sick leave or PTO if they wish. If the employee is exempt and works any part of the workweek but is directed by you to not work for the remaining part of the workweek, you must pay the full salary for the workweek. In terms of designating the time off as leave under the federal Family and Medical Leave Act (FMLA) or similar state law, an absence that doesn’t involve inpatient care likely wouldn’t qualify unless the employee is incapacitated for more than three consecutive calendar days and sees a health care provider twice, or sees the provider once and has a regimen of continuing treatment (such as prescription medication). Since health care facilities are overwhelmed and are asking people to not come in unless they’re having serious problems, it’s likely the employee may not even be able to get in to see a health care provider. So, you may need to just allow the leave of absence. You could wait to provide the FMLA paperwork until you know whether the illness is more serious and the employee is seeking treatment anyway. To discuss a specific situation and determine how to characterize and pay for an employee’s absence, call your Vigilant Law Group employment attorney.
- If an employee contracts coronavirus at work, do we need to record it on our OSHA 300 Log? Yes. The federal Occupational Safety and Health Administration (OSHA) has indicated that the transmission of coronavirus in the workplace is a recordable illness. If you have an employee who claims to have contracted coronavirus at work, you should cooperate with your local health and safety agencies, which may need to investigate the incident. According to the CDC, you should inform employees if you have someone in your workforce that tests positive. Due to confidentiality requirements under the ADA, however, you shouldn’t disclose the name of the individual. Ultimately, if it’s determined that an employee contracted the virus at work, you’ll need to record it on your OSHA 300 Log.
- How can we prepare for disruptions to our business? All employers should think about how to handle large numbers of employees being unable to work, either because of their own illness or because of school/daycare closures. The U.S. Department of Homeland Security offers a good resource to help you think through critical business operations and a contingency plan if those critical functions are disrupted. Your management team should collectively understand what triggers a contingency plan and how it will be implemented. For example, will you temporarily close your facility if a certain percentage of employees are unable to work? Who makes that decision and how will that be communicated to your workforce? What’s the plan if specialized personnel are unable to work (e.g. electricians, IT staff, the payroll department, etc.)? Having a plan in place for these kinds of situations makes good sense, not just for the current coronavirus outbreak, but for any disaster or emergency that could impact your business.
Tips for Employers: Vigilant expects that the continued coronavirus outbreak will generate additional questions and concerns from our members. We’ll keep you informed as new guidance emerges and the situation evolves. In the meantime, please contact your Vigilant Law Group employment attorney for help with specific employment-related questions and your Vigilant safety professional with questions related to the use of respirators and when to record an illness on your OSHA 300 Log.