NOTE: The information in this Alert is current as of March 11, 2020, 12:30 pm Central Time. This is a rapidly-evolving situation and circumstances and requirements may change. Just before the distribution of this Alert, the World Health Organization declared COVID-19 a global pandemic, a declaration which has implications on how certain situations must be handled.
The Occupational Safety and Health Act (“OSHA”) requires employers to provide “a place of employment, which [is] free from recognized hazards that are causing or likely to cause the death or serious physical harm to … employees.” The nature of the workplace affects the type and level of response that may be required. For example, healthcare facilities and establishments caring for susceptible individuals may need to apply higher standards for workplace protection.
Employers should remind employees to take precautions such as staying home if they are sick, minimize shaking hands, diligent hand-washing, and sneezing or coughing into a sleeve or tissue. Employers should also provide additional supplies such as hand sanitizer and antiseptic wipes, frequently clean and disinfect touched objects and surfaces, consider holding meetings telephonically or through other electronic communication means instead of in-person meetings, provide appropriate personal protective equipment to employees if necessary, and send all employees home who become symptomatic at work. Lastly, employers should assign someone, often a member of human resources, as a disease prevention coordinator who will be the point person on the topic for employees, and who will also be charged with regularly monitoring information posted by government agencies for guidance on appropriate measures as the situation is evolving.
OSHA has deemed COVID-19 as a recordable illness when an employee is infected on the job. Therefore, if an employee becomes infected while traveling for work or at work, the employer must prepare and file appropriate reports with OSHA. State laws also have applicable reporting requirements; however, in many states, the reporting of disease is the responsibility of healthcare providers. Currently, there is no obligation for most employers to report a suspected or confirmed case of COVID-19 to the Minnesota Department of Health. The healthcare provider that receives the confirmation of a positive test result is a mandatory reporter who will handle that responsibility, as well as those in charge of any institution, school, child care facility or camp. However, employers should be prepared to file appropriate reports with OSHA for those who have been exposed to COVID-19 at work and should stay updated with changes in connection with state or local reporting requirements.
To date, the Centers for Disease Control and Prevention (“CDC”) has issued several travel warnings. The travel warnings will likely change depending on the spread of COVID-19. If your employees travel internationally, stay updated on the status of international travel warnings by governmental agencies and consider restricting travel to areas that are affected. Similar precautions should be taken for business partners who are traveling from risk areas to your workplace. Consider whether there are alternatives to international travel by your employees or business partners such as videoconferences or other electronic communication means.
The CDC currently recommends that travelers do not travel to China and Iran, as they are listed at a Level 4 Travel Advisory, and to reconsider and avoid all nonessential travel to South Korea and Italy, as those countries are listed at Level 3. Japan and Hong Kong are listed as Level 2, where enhanced precautions should be taken. The CDC also recommends travelers defer all cruise ship travel worldwide. To check the status of CDC travel advisories, please visit the CDC page at https://travel.state.gov/content/travel/en/traveladvisories/traveladvisories.html, as these are likely to change.
For travel to Level 1 and Level 2 risk locations, consider rescheduling business meetings held there and otherwise regularly monitor CDC notices and employees traveling to those locations. These employees should self-monitor for respiratory symptoms and stay home from work if sick, if a household member is sick, or if they have had exposure to a person with suspected or confirmed COVID-19 infection.
Employers should consider implementing a travel ban to countries at Transit Advisory Level 3 or higher including transit stop-overs. Those employees who have traveled to these high-risk areas within the last 14 days or have had exposure to a person with suspected or confirmed COVID-19 infection within the last 14 days should:
- Stay home for the 14-day quarantine period and call a manager or the company’s appointed disease prevention coordinator for further instructions.
- Self-monitor for respiratory symptoms of sore throat, cough, shortness of breath, and fever, and report to the disease prevention coordinator daily.
- Individuals who become ill should seek medical care. Before going to a healthcare facility, call ahead to inform them about recent travel and symptoms.
The Americans with Disabilities Act (“ADA”) controls when and what sort of questions an employer may ask about an employee’s health. Employers may request that employees inform them if they are traveling to a high-risk location for personal reasons to assess exposure risks. While employers cannot prevent employees from traveling to high-risk locations for personal reasons, employers may deny time off for travel to a high-risk location, business cost of a resulting quarantine, or other legitimate business reasons, provided it is not for a discriminatory purpose. Employers should also warn employees that such travel may result in quarantine or self-monitoring upon return (including working from home, if applicable). Lastly, employers may ask employees if they are experiencing COVID-19 symptoms such as sore throat, cough, shortness of breath, and fever. For confidentiality purposes, employers should store this information in a separate, confidential health folder and limit access to those with a business need to know.
If an employer has a reasonable, objective belief that an employee may have been exposed to COVID-19 and is a danger to the workplace, the employer can require the employee to stay at home or work from home if they are able to do so. Employers should consider the facts and circumstances of an employee’s known connection to an infected individual or recent travel, including the duration of the employee’s trip, the areas the employee visited, the amount of time the employee has been back and the employee’s symptoms.
Pursuant to the ADA, employers cannot require medical examinations unless they are job-related, consistent with business necessity and if the employee poses a direct threat due to a medical condition. A “direct threat” is a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. An employee infected with COVID-19 can only be considered a direct threat if the CDC, state or local public health authorities proclaims the COVID-19 as a “pandemic” and that it is severe in the employer’s location. A pandemic declaration from international health authorities is not relevant for this consideration. The Equal Employment Opportunity Commission’s regulations identify four factors to also consider when determining whether an employee poses a direct threat: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that potential harm will occur; and (4) the imminence of the potential harm. Therefore, employers cannot require a sick employee to see a doctor unless COVID-19 is considered a severe pandemic by the CDC, state or local public health authorities for the employer’s location and the four factors have been considered and applied to the situation. During a pandemic, employers should rely on the latest CDC and state or local public health assessments that are appropriate for their location, and to make reasonable assessments of conditions in their workplace based on this information.
After a pandemic has been proclaimed by the CDC, state or local public health officials, employers may send employees home who become ill with flu-like symptoms, specifying that this is not a disability-related action. During a pandemic, employers may also require employees who have been away from the workplace due to exposure to COVID-19 to provide a doctor’s note certifying fitness to return to work. However, doctors and other healthcare professionals may be too busy during and after a pandemic outbreak to provide fitness documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the COVID-19. However, if an employee requests sick leave pursuant to the Family and Medical Leave Act (“FMLA”) or other employer sick leave policies, employees will be required to follow relevant procedures thereunder.
Employers should let all employees know that the company is monitoring the situation and taking appropriate precautions, and that they should discuss any concerns with the company’s appointed disease prevention coordinator. Employers should also direct employees to immediately notify the disease prevention coordinator if they have been exposed to COVID-19, so the company can provide them with appropriate support, such as requiring them to temporarily work remotely if possible, to avoid coworker exposure. Assure employees of the confidentiality of information they provide, and share that information only as necessary or as required by law. Employees who are infected with COVID-19 should not return to the workplace until they are no longer medically infected. If exposure has already occurred, the company should identify other employees who may have been exposed and inform them that they may have been exposed (while maintaining confidentiality of others consistent with applicable law) and assist those employees with possible accommodations, leave requests, benefits coordination, and return-to-work documentation when and as warranted. Employers should consider a deep clean of affected workspaces. Furthermore, employers in a shared office building or area should inform building management so they can take necessary precautions.
Wage and Hour Considerations
The Fair Labor Standards Act (“FLSA”) governs when, and under what circumstances, an employee must be compensated for time not spent working in the office. Under the FLSA, non-exempt employees are not required to be paid for time they are not working. Therefore, if a non-exempt employee is home because they have traveled to an affected area, have been exposed to COVID-19, are exhibiting symptoms, or if there has been a temporary business closure, time at home is not required to be compensable, regardless of whose decision it was for the employee to stay home. However, if the non-exempt employee performs tasks while at home such as working remotely, that time is treated as hours worked and is compensable.
For exempt employees, if a business temporarily closes due to COVID-19, they are entitled to their full weekly salary, unless they have not worked for the entire workweek. If an exempt employee misses work due to their own illness from the COVID-19, the employer may deduct from their salary, depending upon the employer’s paid sick leave policy, provided it is done in compliance with the FLSA.
If an employee misses work because they are infected by COVID-19 or because they are caring for an immediate family member who suffers from COVID-19, that absence may be permitted under the FMLA or other similar state leave laws.
Public health organizations recommend that companies bar employees or visitors from coming to the workplace for a period of 14 days after a “medium” or “high-risk” exposure to COVID-19 — generally meaning having been in close contact to or caring for someone who has been diagnosed with COVID-19, or having traveled from a high-risk region; therefore, it is appropriate to provide a screening questionnaire for visitors that asks those questions in order to make that determination. Currently, if visitors have traveled to China, Iran, Italy or South Korea, had close contact with someone diagnosed with COVID-19, or have cold or flu-like symptoms within the last 14 days, access can be denied.
The information within the visitor health questionnaire is sensitive and may be considered health information. Therefore, ensure appropriate privacy and confidentiality of this information once received as well as when reporting back to the visitor whether they are admitted or denied to the facility. Further, only if the CDC or a state or local health authority proclaims a severe pandemic has spread in the employer’s location can employers take employee and visitor temperature checks.
It is recommended that employers consider creating and implementing a communicable disease policy that includes COVID-19. Employers may also want to utilize a visitor questionnaire in order to address relevant concerns and decrease workplace exposure.