COVID-19: The Employer’s Quick Guide

03.02.2020

As concern increases over the spread of coronavirus, employers need to evaluate their preparedness. Readiness for the potential spread of the virus should include clear employee communication, careful compliance with state and federal law, and close partnering with your trusted employment counsel.

Overview of the Current Risk

As of the date of this publication, the CDC has issued a Level-3 Warning recommending travelers avoid all nonessential travel to the People’s Republic of China, South Korea, Iran and Italy due to COVID-19, or coronavirus. Transportation in parts of China has been severely restricted, and access to medical care is reportedly very limited in some areas. The U.S. Department of State has issued a Level-4 travel advisory indicating travel to China should be avoided, and a Level-2 travel advisory indicating travel to South Korea should be taken only with increased caution.

The CDC has also issued a Level-2 watch level (“Practice Enhanced Precautions”) for Japan and a Level-1 watch level (“Practice Usual Precautions”) for Hong Kong.

There is disagreement currently about risk to individuals living and working in the United States. According to OSHA, for most individuals in the United States, the current risk of infection with COVID-19 is low. However, government officials have suggested recently a pandemic may be likely. According to the EEOC, “[t]he U.S. Department of Health and Human Services (HHS), Centers for Disease Control and Prevention (CDC), and the World Health Organization (WHO) are the definitive sources of information about influenza pandemics.”

Business Travel to Affected Areas

Employers with business in affected areas are advised to prohibit all business travel to these areas. Current affected areas are identified on the CDC’s website.

Employees Returning From Affected Areas

Employers are advised to take the following steps regarding employees who are returning to the United States from an affected area:

Advise employees they are likely to be questioned by governmental authorities upon their return and may be required to undergo mandatory health screenings conducted by the government.
Advise employees that before they report to work, they must either: (1) obtain a medical release from a health care provider stating they show no signs or symptoms of COVID-19 and may return to the workplace, if practicable, or (2) be placed on a 14-day quarantine during which they may not enter the workplace.
- Employees may be offered telework on an emergency basis if administratively feasible. Telework can raise particular concerns in terms of compliance with California wage/hour and disability laws, so employers are encouraged to speak with their employment counsel before taking this step.
- If a leave of absence is required, it may be paid or unpaid. Employees should be permitted to use accrued but unused paid time off (PTO, vacation and/or sick time) during the leave. Employees who contract COVID-19 may be entitled to a protected leave of absence, as outlined below.
- Employees placed on a leave of absence should be required to obtain a release from a health care provider stating they show no signs or symptoms of COVID-19 and may return to the workplace, if practicable.
Advise employees they must immediately report any future signs or symptoms of the virus.

Employees Who Show Signs or Report Viral Symptoms

Signs of COVID-19 include, but are not limited to, fever and cough. Symptoms include feeling sick and difficulty breathing.

If employees exhibit signs of the virus or report symptoms associated with COVID-19, employers must proceed with caution. Employers may consider requiring a medical release from a health care provider stating the symptoms are not the result of COVID-19. Employees may be placed on a leave of absence, during which they may not enter the workplace, until they provide a release. However, state and federal disability laws must be taken into consideration, as explained below.

Important! Employees who show signs of infection may be perceived as disabled under state and federal disability laws, even if they in fact are not disabled, and may make a claim of discrimination if they are singled out for treatment they perceive to be unfair. These same disability laws protect employees from discrimination based on their relationship or association with an individual with a disability, whether or not the employee has a disability—accordingly, employers must be careful in their handling of employees whose close friends or family members have contracted COVID-19. Finally, employees of a particular race, nationality or ancestry should not be singled out in any regard.

With the above in mind, employers may ask employees if they are experiencing symptoms of COVID-19. EEOC guidance concerning the 2009 H1N1 influenza pandemic confirms questions about symptomology are not disability-related unless the virus is found to be so severe it constitutes a disability. If this virus was determined to be severe enough to constitute a disability, however, the employee would pose a direct threat to the workplace, and the questions would be justified on that ground.

Employees Who Contract COVID-19

If an employee has conclusively contracted COVID-19:

Immediately send the employee home or instruct the employee to remain at home until further notice.
- Employees may be offered telework on an emergency basis if administratively feasible, as a means of “social distancing” or as a reasonable accommodation for disabled employees.
- Employees may also be placed on a leave of absence until they are cleared to return to work by a health care provider. COVID-19 qualifies as a serious health condition sufficient to trigger Family and Medical Leave Act (FMLA) or California Family Rights Act (CFRA) leave eligibility. Leave may be paid or unpaid, according to the employer’s existing leave of absence policies.
Contact the CDC and local health department immediately.
Arrange for the employee’s workplace to be treated by a hazardous materials firm, if the employee entered the workplace after returning from the affected area.
Inform other employees of potential signs and symptoms of COVID-19.
Offer reimbursement of medical testing for employees.
File necessary workers’ compensation paperwork if the virus was work-related.

State and federal leave of absence, disability, and privacy laws mandate that medical records be kept confidential in most situations. HIPAA may also apply.

Employers are advised to maintain health records separate from employee personnel files and limit dissemination of employee health information to only those individuals with a need to know.

Addressing Coworker Concerns

Employers must carefully balance the rights of coworkers of an employee returning from an affected area with the rights of the employee. Coworkers may express concerns about exposure to employees returning from an affected area and contamination risk. They may ask to wear masks or other personal protective equipment. Some employees may simply refuse to work with an employee who has traveled to an affected area, even if that individual shows no signs or symptoms of the virus. Notably, group requests by employees can qualify as a protected concerted activity under the National Labor Relations Act.

Employers are advised to consider the actual exposure risk and err on the side of maintaining a safe workplace. An employee who has traveled to an affected area can be permitted to work from home, where feasible, or may be placed on an involuntary leave of absence. This leave should be handled in accordance with the guidelines stated above.

Employers must carefully avoid the appearance that an employee is being singled out based on the employee’s race, national origin or ancestry. Coworkers who express concerns about potential exposure or contamination based on an employee’s race, national origin or ancestry should be advised that the company is monitoring the situation and will comply with its obligation to maintain a safe workplace. Employers are urged to consult with their usual employment counsel to address these situations.

Finally, employers must be careful to maintain employee privacy regarding their health

Employees Who Refuse to Work with Customers

The CDC notes employees in specific industries, particularly healthcare, are more susceptible to transmission of COVID-19. Cal-OSHA has also issued interim guidance for healthcare workers who may be exposed to COVID-19.

If an employee expresses concern about providing service to a customer that may result in exposure to the virus, the employer must carefully assess the situation to determine actual risk. Employees should generally be permitted to refuse to provide service to a customer who has recently traveled to an affected area and who exhibits signs or symptoms of the virus. However, businesses must be careful to avoid the appearance that a customer is being denied service due to the customer’s race, national origin or ancestry.

Creating a Written Communicable Illness Policy

Employers are strongly encouraged to establish a written policy and response plan addressing communicable illness, including coronavirus, which may impact the workplace. The policy should identify:

Illnesses and exposures employees are required to disclose, including the timing and procedure for making such disclosures.
Situations in which employees are required to stay home; circumstances under which the employer may exercise its discretion to send an employee home; and procedures for employees returning to work after an illness or exposure.
When an employer may require a quarantine of ill employees or those who have been exposed to others who have been ill.
Whether the employer will pay employees for the time spent in quarantine.
Benefits and leaves available to employees.
Travel or other limitations that may be imposed.
Procedures to address all of these matters on a case-by-case basis, under often uncertain and changing conditions.

Collective bargaining agreements or other types of employment contracts may impact the employer’s ability to unilaterally implement a new policy. Employers should consult with their usual employment counsel before taking action that may impact these agreements.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.