As the number of confirmed positive cases of Coronavirus Disease 2019 (“COVID-19” or “coronavirus”) in the U.S. continues to rise, employers must prepare for issues that will inevitably arise as the virus spreads. While the Center for Disease Control (“CDC”) currently advises that “most people in the United States will have little immediate risk of exposure,” it is prudent for employers to evaluate their organizations’ current policies and practices in the event a major outbreak occurs. All employers should initiate these protocols for any infectious disease, not just the current coronavirus concern. Some issues to consider include the following:
Can employers prevent employees from coming to work?
Employers are understandably concerned about providing a safe environment for their employees. Employers may ask employees about the countries they have recently traveled to and if they may have had any exposure to COVID-19. Employers can also ask if employees have had close contact with others who have traveled to at-risk countries and/or otherwise have been exposed to the virus. However, employers may only administer medical tests for employees where there is an established job-related necessity, as such tests otherwise may violate the Americans with Disabilities Act (“ADA”) and rights to privacy under (“HIPPA”).
This means that employers can’t require employees to submit to random or mandatory temperature readings. The ADA could classify this as an unreasonable medical examination. Under ADA, Section 1630.2(r) an employer may require that an employee undergo a medical evaluation if the employee’s condition could pose a “direct threat,” to the workforce due to the employee’s medical condition. Under the ADA, a “direct threat” is defined as “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.” When an employer is determining whether an individual is a direct threat to the workforce, the employer must make a context-specific inquiry and look to “(1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.”
If an employer concludes that an employee may pose a health threat to other employees, the employer can require that the employee stay home for the COVID-19’s incubation period (which is currently identified as a 14-day incubation period). As discussed below, the employee may be eligible for protected leave under the federal Family and Medical Leave Act (“FMLA”) and corresponding state laws. Employers should not identify or explain to other employees the reason an employee is not at work. Communications with employees about medical conditions should be kept confidential and medically-related documents kept in a location separate from the employee’s personnel file, per HIPPA. Co-workers can simply be told that an unidentified employee with whom they have had recent contact has been exposed to the coronavirus or has tested positive.
Employers should be careful not to make assumptions based on characteristics protected under state and federal law. For example, employers may not take virus-related actions (such as prohibiting employees from coming to work or asking questions about employee travel and contact), based on an employee’s race, ethnicity or national origin. All preventative measures and policies should be enforced uniformly and consistently by employers.
What should employers do if employees are reluctant to come to work?
Given the media attention COVID-19 has received, many employees may fear for their health and preemptively seek to avoid the workplace despite the low number of outbreaks recorded in the U.S. In order to combat misplaced employee fears, employers should consider proactive measures. Among other things, employers can regularly update employees on the relative risk of outbreak in the employer’s area, provide hand-sanitizers and other cleaning materials to encourage positive hygienic behavior, and encourage sick employees to stay home and seek medical care. Additionally, providing employees with information on what symptoms to look for, links to the World Health Organization (“WHO”), and CDC updates will likely inspire confidence that the employer is actively monitoring the situation.
Further, OSHA protects an employee’s right to a safe environment. For example, it protects employees from working conditions that could pose an imminent danger to employees. Should an employee refuse to come to work due to COVID-19 outbreaks, OSHA regulations may be implicated and could protect an employee should their concerns of exposure be reasonable.
Are employees able to use FMLA leave in connection with the coronavirus?
For an employee to invoke the employee’s 12 weeks of unpaid FMLA leave, the employee must have a “serious health condition” and otherwise satisfy the FMLA eligibility criteria. Although the symptoms of COVID-19 have been reported as flu-like, COVID-19 may be considered a serious health condition depending on the circumstances. Accordingly, an employee with COVID-19 or an employee who is taking care of a qualifying family member with COVID-19 may be permitted to take protected FMLA leave. However, employees who refuse to come to work out of fear of contracting COVID-19 would not qualify for FMLA leave.
What ADA considerations and implications are important in connection with the coronavirus?
While COVID-19 is typically a temporary, nonchronic illness and not a “disability” under the ADA, it is important to note that the ADA also prohibits discrimination against perceived disabilities or association with those with actual or perceived disabilities. In order to avoid implicating the ADA, it is best to continue to apply leave policies and other workplace polices in a uniform, equitable, and neutral fashion.
Further, under Section 1630.2(r) of the ADA, an employer may require that an employee undergo a medical evaluation if the employee’s condition could pose a “direct threat,” to the workforce due to the employee’s medical condition. Under the ADA, a “direct threat” is defined as “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.” When an employer is determining whether an individual is a direct threat to the workforce, the employer must make a context-specific inquiry and look to “(1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.”
Can employers restrict employee travel? Can employers force employees to travel?
Employers can restrict work related travel. Employers can’t restrict travel for personal reasons. However, regarding personal travel, employers do have the right to deny any request for PTO as long as such a denial is based on the destination, the business cost of a resulting quarantine, or other legitimate business-driven interest. For that reason, employers should strongly encourage their employees to take into consideration the risks associated with travel to restricted areas and the risk presented to their co-workers before making personal travel plans.
My employee alleges that the employee contracted the coronavirus while at work. Will this result in a compensable workers’ compensation claim?
It depends. If the employee is a health care worker or first responder, the answer is likely yes (subject to variations in state law). For other categories of employees, a compensable workers’ compensation claim is possible, but the analysis would be very fact-specific.
It is important to note that the workers’ compensation system is a no-fault system, meaning that an employee claiming a work-related injury does not need to prove negligence on the part of the employer. Instead, the employee need only prove that the injury occurred at work and was proximately caused by their employment. Additionally, the virus is not an “injury” but is instead analyzed under state law to determine if it is an “occupational disease.” To be an occupational disease, in Texas an employee must generally show two things:
- The illness or disease must be “occupational,” meaning that it arose out of and was in the course of employment; and
- The illness or disease must arise out of or be caused by conditions peculiar to the work and creates a risk of contracting the disease in a greater degree and in a different manner than in the public generally.
The general test in determining whether an injury “arises out of and in the course of employment” is whether the employee was involved in some activity where they were benefiting the employer and was exposed to the virus. Importantly, special consideration will be given to health care workers and first responders, as these employees will likely enjoy a presumption that any communicable disease was contracted as the result of employment. This would also include plant nurses and physicians who are exposed to the virus while at the worksite.
As for other categories of employees, compensability for a workers’ compensation claim will be determined on a case-by-case basis. The key point will be whether the employee contracted the virus at work and whether the contraction of the disease was “peculiar” to their employment. Even if the employer takes all of the right steps to protect the employees from exposure, a compensable claim may be determined where the employee can show that employee contracted the virus after an exposure, the exposure was peculiar to the work, and there are no alternative means of exposure demonstrated.
Absent state legislation on this topic, an employee seeking workers’ compensation benefits for a coronavirus infection will still have to provide medical evidence to support the claim. Employers who seek to contest such a claim may be able to challenge the allowance if there is another alternative exposure or if the employee’s medical evidence is merely speculative.
Paid versus Unpaid Leave?
What if my employees don’t have enough paid time off or vacation time to cover the 14-day incubation period? Should we offer additional paid time off? There is no simple answer to this question. Employers will have to make this decision based on their own economic conditions. There is no obligation to offer additional paid time off for employees who contract the disease and use all of their paid time off. However, most employees, especially those hourly workers and those in the service industry, would be severely impacted without a paycheck for 14 days. This could result in employees that are infected to come to work despite being infected. This will be a business decision each employer has to make.
Do we need to keep track of employee’s sick days related to COVID-19?
Yes. Effective March 9, 2020, the Occupational Safety and Health Administration issued a new rule that requires all employers with 10 or more employees to keep track of all days missed for employees suffering from COVID-19 and/or Covid-19 symptoms.
Should employers update their employment policies?
All employers should review their leave policies to ensure sick leave, paid time off and other policies are flexible and consistent with federal, state and local laws. Additionally, it is a good time to send out updates and reminders to employees about the importance of remaining home when sick, the workplace resources available to employees, and points of contact in the event an exposure occurs. It may also be advisable to permit employees to stay home to care for sick family members.
No information in this article is intended to constitute legal advice. For specific legal advice, please contact an attorney.
If you have any questions or would like more information about labor & employment, please contact Derek Flynn.