The laws are changing rapidly in the current pandemic/crisis. Therefore, the legal issues discussed here are subject to constant change. It is best to consult with your counsel concerning any specific legal advice you may have.
It is hard to turn on the news without hearing about coronavirus. Many questions are being raised by employers on what to do. Should we send people home? If we do, must we pay them? What if the business suspends operations? Do we have workers’ comp liability? The questions we’ve been getting are numerous, valid, and important.
Below we provide responses to some Frequently Asked Questions our clients are posing. Please note, however, that situations vary, and the answers are often very fact specific. The following FAQs should help you as business owners and managers weather this storm, but they are only general legal information.
1) No one in my business is sick, or aware they’ve been exposed. Is there anything I should be doing to help prevent my employees from getting sick?
Yes. See this CDC link https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/guidance-business-response.html. In short, encourage: (1) frequent, proper hand washing, (2) respiratory etiquette (sneeze/cough into tissue or elbow, not hand; properly dispose of tissues/wash hands), (3) staying home when sick, and (4) workplace cleanliness.
2) Can I ask employees who appear sick at work if they have coronavirus, or have been tested for it?
You obviously will be looking for employees who exhibit symptoms that are concerning. Federal and state disability discrimination laws have prohibitions against disability related inquiries which may or may not be applicable depending on what you ask. The analysis could also change if you reasonably believe the condition/situation might endanger the health of others or should the World Health Organization declare a pandemic. Even when employers can inquire, which may only be in specific circumstances, all medical information must be kept confidential and only shared with those who have a need to know.
3) If an employee advises they are home sick with coronavirus, will they be eligible for short-term disability benefits, or workers’ compensation benefits because they got sick at work?
Maybe. It depends. Normal eligibility for short-term disability insurance benefits would apply (usually applying to non-work-related illnesses lasting longer than 7 days, unless hospitalized in which case it applies sooner). Workers’ compensation may apply if the illness is somehow related to the employment. For clarification of what applies in a specific situation, call your insurance provider.
4) Can the company have employees who are returning from an impacted area self-quarantine before returning to work?
Based on the company’s obligations to maintain a safe workplace, including potentially under the Occupational Safety and Health Act (“OSHA”)’s general duty clause, taking that precaution would be legally permissible, as long as the requirement was not imposed in a discriminatory manner. Specifically, everyone returning from a country on the list (https://wwwnc.cdc.gov/travel/notices) should be treated the same way. Self-quarantining (staying home) should be done for as long as is then recommended by the CDC.
5) Can the company require employees who have travelled abroad to get medical clearance before they can come back to work?
As a legal matter, in certain situations the company can require doctor clearance that the person is not sick before they return to work. However, as a practical matter, this may be difficult.
6) Can the company suspend business travel?
Yes, if it chooses to do so. Just do so consistently.
7) Can the company tell employees traveling for personal reasons that they cannot travel outside the US, or cannot travel to countries listed on the CDC list?
In certain states, employers are prohibited from discriminating against employees in the terms and conditions of their employment based on their outside of work/recreational activities. Telling employees to curtail their personal travel may not be advisable where such laws exist. A better practice might be to advise any employees traveling to a CDC list country especially, or any country potentially, that they must self-quarantine (i.e., stay home) for as long as the CDC is then recommending.
8) Can the company ask that employees travelling for personal reasons tell us which country(ies) they are visiting?
While a company can ask people to voluntarily let you know their travel plans in order to assess any risks involved, of course you cannot use information provided to you for a prohibited purpose (e.g. a discriminatory reason). You may even be able to compel someone to disclose their travel plans under certain circumstances.
9) If the company requires employees who have no symptoms to self-quarantine and stay home for some amount of time after returning from travel, does the company have to pay them?
This depends on a number of issues. If the employee has available paid sick time or other paid time off, they should be allowed to use it. If they used up their paid sick time, employees would not need to be paid by the company unless pay is required under applicable laws. If the employee can work from home, and does work from home, they of course should be paid. If the employee has a job where they cannot work from home, the employee is willing to work, but the company is forcing the employee to stay home, non-exempt employees likely do not need to be paid, but exempt employees might. This is fact-specific and can also depend on your employees’ rights (whether under law, policy or union agreement).
10) Does the Family and Medical Leave Act (“FMLA”) apply if employees need leave because they get coronavirus or need to take care of a sick family member with coronavirus?
The analysis of whether the FMLA applies is no different from any other situation. If your company is covered by the FMLA and the employee is eligible, the company should follow all the usual FMLA requirements.
11) What if an employee’s child’s school is closed and the employee needs to stay home because there is no childcare? Do we have to pay the employee while they are out?
A number of state and local paid sick leave laws allow employees to use paid sick time when a child’s school or daycare is closed for a public health emergency. If an employee has paid time off available, they should be permitted to use it. If they do not have any time available, it is possible that the employee may not need to be paid.
12) What about employees who are REFUSING to come to work or do a specific assignment for fear of exposure, grounded in reality or not?
On the surface, it would seem that employers could require employees who are not sick to come to work and do their jobs. However, there are a number of legal issues lurking in a situation where employees are refusing to come to work for fear of getting sick. For example, depending on the facts of the situation, the employee could claim a mental illness (anxiety, depression, etc.) that is triggered by the fear of dying from coronavirus. A number of laws and factors can be implicated, and the laws’ reach is fairly elastic. This is a situation best discussed with your employment lawyer.
13) What if I have to shut down the business because our business services a certain sector which has shut down?
If the business cannot operate during this time because of external factors, there is likely no employment law impediment to closing the doors. However, if the shut-down is temporary (and not a final closing of the business) and sufficiently short in duration, the company may continue to be liable for certain compensation and benefits continuation even if it is not functioning. If the shut-down becomes permanent, or long enough in duration, state and federal WARN laws and others may be implicated. Situations can differ, so seek out advice should this occur.
Company leadership would be prudent to maintain calm, and plan how to get work covered if employees are out. Consider cross-training for key positions. Explore additional means of working remotely. Consider what non-essential tasks/functions can be discontinued if employees need to be reassigned to tasks with higher priority.
Of course, there are many more questions, and more permutations of these questions depending on the nature of the situation. If you have specific questions or concerns, please feel free to reach out to us.