Coronavirus Toolkit for EmployersMarch 10, 2020
As of this writing, most U.S. employees face a low risk of exposure to the Coronavirus Disease 2019 (COVID-19). Nevertheless, employers are expected to act prudently in response to this significant public health event. This alert provides basic resources and simple answers to some common questions that employers may face as COVID-19 continues to spread.
Where can we get the latest information?
Bookmark the Centers for Disease Control and Prevention’s (CDC) COVID-19 website. The CDC is tasked with a significant role in the U.S. government’s response to the virus, including providing timely advice to employers. Among the resources available is an Interim Guidance for Businesses and Employers, which will be updated as more is learned about the virus and how it spreads.
What do we do if an employee has traveled to a high-risk area?
Encourage them to follow the CDC guidelines and stay home. As of March 10, 2020, CDC is urging all people returning from China, Iran, Italy and South Korea (“Level 3” areas) to stay home for 14 days after their return. Consistent with this advice, employers should strongly consider excluding those employees from the workplace. Where possible – especially if employees are not sick – working from home may be a good way to mitigate the lost productivity resulting from the employee being unable to work as usual.
What if an employee shows up to work with COVID-19 symptoms?
Send the employee home immediately. The CDC recommends that employees with symptoms of acute respiratory illness remain at home until they are free from fever, signs of fever or other symptoms for at least 24 hours. If you observe an employee who appears to be ill, you may ask them if they are experiencing symptoms (fever, cough, shortness of breath, etc.). While certain medical-related inquiries raise concerns under the Americans with Disabilities Act and other laws, focused questions based on observation or disclosure by employees will be permitted, and may even be necessary to protect others in the workplace. Of course, all medical-related information must be maintained confidentially, kept apart from employees’ personnel files, and restricted only to those with a need to know.
What do we do if an employee has been in contact with someone who has a confirmed COVID-19 infection?
Gather basic information and assess the risk based on the latest guidance available. Not all exposure to confirmed COVID-19 cases is believed to be the same. Depending on factors including the proximity between the employee and the infected person, the duration of their interaction, and whether the person is symptomatic, the risk may range between high and none. The CDC’s risk assessment guidance, which includes recommendations on when to limit interaction with others, can be found here.
If we send employees home, or if they are too sick to work, do we have to pay them?
Perhaps, depending on the employer’s leave policies and the employee’s exemption status. Generally, nonexempt employees need not be paid for any hours they do not work. Salaried, exempt workers, on the other hand, generally must be paid their full salary for any week in which they perform any work – including remote work. As always, employers should be wary and seek counsel before making deductions from exempt employees’ salaries.
Employers should consistently enforce their paid time off policies. If COVID-19 absences are covered by paid time off policies, then the employees should be paid so long as they have accrued paid time off to use. The CDC and OSHA encourage employers to be generous when applying their policies in the face of the public health risks presented by COVID-19. This generosity may include loosening restrictions on paid time off use to encourage sick employees to stay home, and not requiring doctors’ notes from returning employees in order to avoid creating nonessential work by possibly-overburdened health care providers.
What other workplace safety concerns should we be considering?
Employers must continue to provide employees with a workplace free from recognized hazards that may cause death or serious physical harm. This is the crux of OSHA’s General Duty Clause. Federal OSHA does not have a specific standard covering COVID-19, so employers must follow existing standards, including the General Duty Clause, in the context of the new virus. OSHA has provided a lengthy guidance on preparing workplaces for COVID-19, but as a general rule, following the CDC’s guidelines for employers would be an excellent start. They contain recommendations such as providing extra tissues and hand sanitizer (at least 60% alcohol), as well as for increased cleaning and disinfecting of common areas. Note that some states that have their own state occupational safety and health administrations may have specific standards that could apply to COVID-19 (see, for example, Cal/OSHA’s guidance).
This alert merely scratches the surface of the many employment-related issues that can and will arise from the spread of the COVID-19 virus. There has been a significant amount of information shared on this topic, and, regrettably, it even seems some are attempting to profit from adding to the hysteria. At the end of the day we suggest a calm and common-sense approach, relying on the best and most current information available from official sources of information such as the CDC, and avoiding overreaction and panic. We will continue to monitor developments and provide additional guidance. If you have any questions about preparing your workplace for COVID-19, please contact one of the authors below or another member of Lewis Rice’s Labor & Employment Group.