Coronavirus Pandemic and the Workplace: FAQs

The Coronavirus has been declared a world-wide pandemic, requiring all citizens, including employers, to take certain measures to protect themselves and others. Employers are strongly encouraged to keep updated on the latest guidance and instructions from the Centers For Disease Control and Prevention (CDC), as well as the federal, state and local authorities. In addition, the following will address frequently asked questions by employers on this topic. Should an employer implement special policies related to the Coronavirus pandemic? It is recommended that employers promptly implement policies and procedures related to safety measures that can help prevent or minimize the risk of secondary spreading of the Coronavirus. Such policies and procedures can be in any form, such as a memo or email to employees, and should include such items as instructions to stay home if they are sick, especially if they have flu-like symptoms, a requirement to report any contact with infected individuals, and a requirement to exercise best practices for hygiene, as established by the Centers for Disease Control and Prevention (CDC). Employers may also want to limit or suspend work-related travel for a period of time, as well as discourage personal travel. The best practice is to require employees who travel out of the area to self-quarantine at home for at least 14 days upon their return to the area. If during the incubation period, the employee or any household member experiences flu-like symptoms or tests positive for the Coronavirus, they should be required to report it to their employer and present a medical release to work by a medical professional, in order to prevent or minimize secondary spreading of the disease. Employers should be careful to follow all existing laws when implementing such policies, such as the Americans with Disabilities Act (ADA) and the Family Medical Leave Act (FMLA). Employers may also want to increase practices to minimize the spreading of germs in the workplace, such as limiting gatherings of large groups, restricting visitors from outside the area from entering the workplace, implementing heightened cleaning requirements, and emphasizing best practices for hand-washing and sanitizing the workplace. If an employee gets the Coronavirus or has to care for someone who gets the virus, do I have to pay them for their time off? Generally, employers in a unionized setting must follow the terms of the Collective Bargaining Agreement. In a non-unionized setting, employees who are provided with paid time off benefits and have accrued paid time off may use their employer-provided paid time off benefits, such as sick leave and vacation, to cover their pay during absences due to the Coronavirus. In addition, the Family First Coronavirus Response Act (the Coronavirus bill) passed in the House of Representative on Saturday, March 14, 2020, and is expected to pass in the Senate and be signed into law early this week. If it passes, the package would mandate all employers with 500 or less employees to provide 14 days of paid sick leave at “not less” than two-thirds a worker’s pay, capped at $511 a day per employee, or $7,156 for the entire quarter. Employees would qualify for the benefit if: (1) they are sick and have to be quarantined or treated for the Coronavirus; or (2) if they have to leave their jobs to take care of a family member who has the Coronavirus; or (3) if they have to stay home because they have a child whose school or childcare facility has closed. In addition, under the existing Family Medical Leave Act, employers with 50 or more employees are required to give “job protected” medical leave for up to 12 weeks to qualified employees. The Coronavirus bill would add that workers who need more than 14 days to recover from the Coronavirus or who need to take care of a family member would be eligible to receive up to three months of paid Family and Medical Leave, at two-thirds salary, if they otherwise qualify for Family Medical Leave. Employers with 500 or less employees will receive a tax credit for 100% of the cost of giving their employees paid leave. Can we force our employees to have their temperature taken before entering the workplace? The short answer is maybe, but employers should proceed with great caution. The concern under the Americans with Disabilities Act is that the test may be considered a “medical exam” under the Americans with Disabilities Act and an invasion of the employee’s privacy. Because the Coronavirus pandemic has now spread to this region, the Equal Employment Opportunity Commission (EEOC) guidance states that it is legal to take an employee’s temperature in a pandemic situation if the disease has spread to the area, but there is no guaranty the courts would ultimately follow the EEOC’s guidance and sanction such conduct. There are other serious concerns with this practice: (1) taking a temperature, even non-touch, is invasive and gives the employer health information you arguably should not have; (2) ) no-touch temperature guns are notoriously unreliable and oral thermometers can spread disease if not properly sanitized between uses; (3) the employer is using one medical characteristic (fever) to make an assumption that the employee is contagious if they have a fever, or that they’re not contagious if they don’t have a fever—both of which are incorrect assumptions. Also, if there is a wait to be tested for a fever before actual work starts for the day, the employer will likely have to pay the employees while they are waiting to be tested. If an employer decides to do this, we would recommend that the employer ask for permission in writing and have the employee sign for consent. If the employee refuses, we do not recommend that the employee be forced. For additional questions or assistance with implementing best practices, call any our Labor and Employment attorneys. We’re here to help.