COVID-19 is spreading and testing, in many states, is increasing. As a result, increasing numbers of employers will be faced with the reality of an employee testing positive for COVID-19. When that happens, what’s an employer to do? Below are some FAQs about COVID-19 in the workplace.
An employee has tested positive. What can an employer do?
Send the employee home immediately. The employer may require a doctor’s note releasing the employee to return to work, although the CDC has asked employers to consider foregoing such documentation due to current healthcare constraints. If the employer chooses to forego the medical release to work, the CDC has provided that employees should not return to work until they are free of fever (without the use of fever-reducing medications) and any other COVID-19-related symptoms for at least 24 hours. The CDC has indicated that healthcare professionals diagnosed with COVID-19 may return to work after seven days have passed since symptoms first appeared AND after three days have passed since resolution of fever without the use of fever-reducing medications and improvement in respiratory symptoms.
The employer should consider a deep clean of the employee’s workplace, including common areas. The employer has the option to notify the diagnosed employee’s co-workers of the diagnosis, without releasing the employee’s name. A sample notice is below:
“An employee of the company has been diagnosed with COVID-19 and is now on self-quarantine. You may have come into contact with this individual. Please continue to monitor your symptoms and inform Human Resources immediately if you experience a fever, shortness of breath, coughing, or any other COVID-19-related symptom as identified by the CDC.”
An employee has traveled to a high risk area or is living with someone who has been diagnosed with COVID-19. What can an employer do?
Employers may place these employees on quarantine from work so long as the employer does so consistently (so as to avoid allegations of disparate treatment). It appears that the common time period for quarantine is 14 days. Currently, this period of quarantine may be unpaid or an employee may be permitted to use accrued PTO to cover the period of absence.
The Families First Coronavirus Response Act (FFCRA) goes into effect on April 2, 2020. As of such date, the emergency paid sick leave provision of the FFCRA will require 80 hours of paid leave for full-time employees (and paid leave covering the average number of hours a part-time employee typically works in a two-week period) for periods of quarantine (subject to certain criteria) as well as other COVID-19-related absences. This paid leave is subject to certain caps and applies to employers of less than 500 employees. See our FFCRA alert here.
An employee is afraid to come to work due to potential COVID-19 exposure. What can an employer do?
The employer should first evaluate to ensure that it is following CDC, OSHA and public official guidelines related to COVID-19. Forcing an employee to come to work while failing to implement appropriate exposure safeguards and guidelines in the workplace may result in an OSHA claim.
There is no federal law that provides paid leave or job-protected leave for an employee who chooses not to report to work due to COVID-19-related fears. If working from home is not an option for this employee, he/she may be placed on an unpaid leave of absence and/or required to use his/her accrued PTO. However, employers should keep in mind that there may be some employees who have a qualifying disability under the Americans with Disabilities Act (ADA) that causes them to be more susceptible to COVID-19 complications. In those instances, the request to not report to work should be evaluated as a request for an accommodation under the ADA.
An employer would like to begin screening employees for COVID-19 to protect its workforce. Can the employer do this?
The EEOC recently issued guidance that because of extraordinary circumstances surrounding COVID-19, employers may measure the body temperature of employees in the workplace. We recommend that such screening take place in a private room and that the recording of temperatures be treated as a confidential medical record under the ADA.
The EEOC also stated that non-discrimination laws, such as the ADA, do not prohibit employers from following any and all guidance released by the CDC or local public health officials.
Employers are also free to ask employees about COVID-19-related symptoms or diagnoses to keep their workforce safe. For example, if an employee calls in sick, an employer can ask the employee if he/she is experiencing COVID-19-related symptoms, such as fever, cough, chills and shortness of breath. Employers may also require employees to report to Human Resources immediately if they experience such symptoms while at work or are diagnosed with COVID-19. Again, any record made with respect to employee symptoms or diagnoses must be treated as a confidential medical record under the ADA.
An employee has asked to wear a face mask while at work. Must the employer allow the employee’s request?
If allowing a request to utilize personal protective equipment in the workplace, such as a mask or gloves, calms employee fears and is not a disruption to operations or the business, the employer may be inclined to do so. However, generally, an employer is not legally required to allow the use of a mask in the workplace except for certain circumstances. For example, employees working directly with individuals diagnosed with COVID-19 may be entitled to wear a mask under the OSHA general duty clause and employees with a disability placing them at significant risk to COVID-19 may have a right to wear a mask as a reasonable accommodation under the ADA.
Furthermore, the CDC has clearly stated that it does not recommend that people who are well wear a face mask to protect themselves from COVID-19, especially considering the shortage of masks being faced by healthcare workers in certain areas.