Employers have concerns with health-related questions and with recommendations from the CDC as well as other concerns during this time of the coronavirus pandemic.
Interim Guidance
The CDC has published an Interim Guidance for Business and Employers, with the following information to respond to COVID-19:
– Encourage sick employees to stay home until they are fever-free for at least 24 hours
– Separate sick employees
– Emphasize respiratory etiquette and hand hygiene; encourage employees to stay home when they are sick; instruct employees to wash their hands with soap and water and also to use alcohol based hand sanitizer; have ample supplies for use in the workplace (soap, hand sanitizer, tissues)
– Perform cleaning routinely to frequently touched surfaces in the workplace
– Advise employees to take certain steps before traveling and refer to the CDC’s Travel Health Notice for guidance
It is very important for businesses to protect the workplace while having a plan in place in case of an outbreak.
Confidentiality and Privacy
Employees have a right to confidentiality and privacy when it comes to their medical information in the workplace. Although employees have this right, they also have the right to know if there is a health risk or potential exposure to COVID-19 in the workplace. Employees must be notified of the health risk without identifying the employee who was diagnosed or was showing symptoms.
The employer must also notify the local health department and the CDC to develop a plan if an employee were to show symptoms or receive the diagnosis of COVID-19, then communicate the plan with all employees.
Health-Related Questions
Because COVID-19 poses a “direct threat”, an employer may ask an employee if he or she is experiencing symptoms such as fever, cough, shortness of breath, and tiredness.
Direct threat – significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.
Also, OSHA gives employers a duty to provide employees with a work environment that is free of hazards. Asking an employee if they are experiencing symptoms of COVID-19 is taking steps towards protecting the workplace and preventing hazards.
Employers should always seek counsel when making business decisions based on health-related matters. Also, employers should always keep up-to-date emergency contact information on all of their employees.
Leave-Related Issues
Generally, an absence because of COVID-19 should be treated as any other absence as outlined in the employee handbook. Employers may also consider additional leave-related laws such as FMLA and ADA because of the seriousness of COVID-19. The employee may ask to work from home. The employer should keep dialogue open.
The CDC has asked that employers do not require any documentation to validate the employee’s acute respiratory illness or for their ability to return to work durning this time, because healthcare professionals may not be able to provide such documents in a timely manner.
Employers should take each situation on a case-by-case basis.
Wage and Hour Issues
The impact on an employee’s pay will differ depending on whether the employee is hourly or salaried. Hourly employees are only to be paid for the hours worked. Salaried employees must receive full salary for any workweek they perform work. There are limited exceptions to this rule as listed below:
– If the employee is absent from work for one or more full days for personal reasons other than sickness or disability
– Full day absence due to sickness or disability if the deduction is made in accordance with a bona fide plan, policy, or practice of providing compensation for salary lost due to illness
– When an employee takes unpaid leave under the FMLA, the employer does not need to pay the employee’s salary during the leave
– And others
Travel Restrictions
The CDC advised employers to restrict all nonessential business related travel. However, employers cannot restrict employee’s personal travel. You may advise travelers they may be subject to quarantine or leave on return.
Other Considerations
Each situation should be looked at on a case-by-case basis. Seek outside advise for counsel concerning employment-related decisions. Contact an employment law attorney with any concerns.