As the Coronavirus Disease 2019 (COVID‑19) continues to spread in the U.S., employers need to be aware of both their legal rights and obligations and the practical considerations in responding to the outbreak to minimize its impact on the workplace. In doing so, employers must work through not only the legal requirements of various federal and state laws, but in a way that allows them to continue to effectively operate. Employers that plan now will be best placed to weather the storm.
The General Duty Clause of the Occupational and Safety Health Act requires nearly every employer to furnish to each worker “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” Although no specific Occupational Safety and Health Administration (OSHA) standard applies to COVID‑19, OSHA’s website directs employers to follow the Centers for Disease Control and Prevention’s (CDC) “Interim Guidance for Businesses and Employers.” The CDC’s guidance recommends that employers do the following, among other things:
The CDC’s full guidance and recommendations for an infectious disease outbreak response plan can be obtained at the CDC website.
Although an employee infected with COVID‑19 may be able to work, OSHA’s General Duty Clause requires employers to protect other employees and, in such a situation, the employee should be directed to remain at home until medically cleared to return to work.
Employers subject to OSHA also need to comply with other applicable OSHA standards, including providing employees who are at risk for occupational exposure to COVID‑19 – such as health care workers – with personal protective equipment (PPE) and providing employees exposed to hazardous chemicals used for cleaning and disinfection with appropriate training, PPE and product information, such as safety data sheets. OSHA has stated that COVID‑19 is a recordable illness when an employee is infected on the job and must be recorded on the OSHA 300 log.
In most cases, COVID-19 will be a transitory illness like the seasonal flu and, therefore, not be considered a disability under the Americans with Disabilities Act (ADA). (COVID‑19, like the seasonal flu, may be considered a disability under certain state and local laws, such as the New York State Human Rights Law, that protect temporary disabilities.) If an employee with COVID‑19 were to develop a limitation on a major life activity, such as breathing, then the employee would likely qualify as disabled and be protected by the ADA. The U.S. Equal Employment Opportunity Commission recently posted an update that provides guidance about the ability of employers to ask employees about their health and require them to provide medical information related to COVID‑19 that is consistent with the ADA. The most pertinent guidance is provided below (as edited for clarity and relevance):
|Q. How much information may an employer request from an employee who reports being ill or calls in sick?|
|A. ADA-covered employers may ask such employees if they are experiencing influenza-like symptoms, such as fever or chills and a cough or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
If COVID-19 is like seasonal influenza, these inquiries are not disability-related. However, if the symptoms of COVID-19 become more severe than the seasonal flu, the inquiries, even if disability-related, would be justified by a reasonable belief based on objective evidence that the severe form of COVID-19 poses a direct threat.
|Q. Does the ADA allow an employer to require employees to stay at home if they have COVID‑19 symptoms?|
|A. Yes. Employers may send employees home if they exhibit influenza-like symptoms. Advising such workers to go home is not a disability-related action if the illness is akin to seasonal influenza. Additionally, the action would be permitted under the ADA if the illness were serious enough to pose a direct threat.|
|Q. When an employee returns to work, does the ADA allow an employer to require a doctor’s note certifying the employee’s fitness for duty?|
|A. Yes. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the outbreak were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees.|
|Q. May an employer ask an employee why he or she has been absent from work if the employer suspects it is for a medical reason?|
|A. Yes. Asking why an individual did not report to work is not a disability-related inquiry. An employer is always entitled to know why an employee has not reported to work.|
|Q. When an employee returns from travel, must an employer wait until the employee develops influenza symptoms to ask questions about exposure during the trip?|
|A. No. These would not be disability-related inquiries. If the CDC or state or local public health officials recommend that people who visit specified locations remain at home for several days until it is clear they do not have COVID‑19 symptoms, an employer may ask whether employees are returning from these locations, even if the travel was personal.|
If an employee is suspected or confirmed to have COVID‑19, employers should inform co-workers of their possible exposure in the workplace and of any steps being taken to reduce the chance of infection. Although co-workers may know the identity of the employee suspected or confirmed to have COVID‑19, especially in a small workplace, employers must comply with their confidentiality obligations under the ADA. An employee who refuses to report to work because of a fear of COVID‑19 may be protected from discipline under both OSHA and the National Labor Relations Act (NLRA). OSHA’s anti-retaliation provision protects employees who in good faith believe there is an imminent danger in the workplace, and there is insufficient time to eliminate the danger through OSHA’s regular complaint process. The NLRA also protects employees who act in concert for their mutual protection or who act individually with the intent to spur group action.
As noted above, employees who contract COVID‑19, like those who contract the seasonal flu, may qualify as disabled under the ADA if the virus substantially limits a major life activity, such as breathing, and may qualify as disabled under certain state or local laws, such as the New York State Human Rights Law, simply by virtue of being infected. In such a case, a leave of absence may be required as a reasonable accommodation. COVID‑19 may also be a serious health condition under the Family and Medical Leave Act (FMLA), and state and local mandated paid sick leave laws may also be triggered. The FMLA and mandated sick paid leave may also apply if an employee has to care for an ill family member. Employers may also have to provide accommodations for employees with medical conditions that put them at increased risk of experiencing serious medical complications if they contract COVID‑19.
An employer’s response to COVID‑19 may also have wage and hour implications. Overtime nonexempt employees need not be paid for time off from work, but must be paid for all time worked regardless of where or when it occurs. Therefore, such employees who are instructed to stay at home should be directed either not to perform any work or to accurately report all work performed at home. If overtime nonexempt employees are off of work because of COVID‑19, do not work at home and have exhausted all paid leave time, their time off can generally be unpaid.
On the other hand, salaried overtime exempt employees must be compensated at their full salary in any workweek in which they perform any work – even if they spend just a few minutes checking emails. Therefore, employers should clearly inform salaried overtime exempt employees of any work-at-home expectations and the procedures for monitoring productivity.
Unionized employers should also be aware of any notice, pay or other requirements in their collective bargaining agreements that might apply in situations where employees are sent home.
Employers should consider updating their disaster business continuation plan, or creating one if none exists, to deal with how they would continue to operate if a substantial number of employees are unable to report to work. At a minimum, employers should do the following:
Phillips Lytle continues to monitor and assess developments related to COVID‑19. If you have any questions, or if you want to discuss your response to the virus, please contact any partner on our Labor & Employment Practice Team.