March 12, 2020
What Does COVID-19 Mean for You and Your Business?
On March 6, 2020, Indiana Governor Holcomb declared a Public Health Emergency upon the announcement of the first case of the novel coronavirus in Indiana. With the possibility of continuing illness related to the novel coronavirus (often referred to as COVID-19), all businesses should be prepared for and have a plan to handle a potential health emergency related to coronavirus.
Employers should identify and communicate their objectives, which may include reducing transmission among staff, protecting people who are at higher risk for adverse health complications, maintaining business operations, and minimizing adverse effects on other entities in their supply chains.
- Ensure the plan is flexible; involve your employees in developing and reviewing your plan.
- Conduct a focused discussion or exercise using your plan to determine ahead of time whether the plan has gaps or problems that need to be corrected.
- Establish a process to communicate information to employees and business partners on your infectious disease outbreak response plans and latest COVID-19 information.
- Share your plan with employees and explain what human resources policies, workplace and leave flexibilities, and pay and benefits will be available to them.
The absences that may be caused by COVID-19 may touch on a number of labor concerns from Wage and Hour claims for compensation, disability discrimination, Family Medical Leave Act, and work place safety governed by the Occupational Safety and Health Act (“OSHA”).
Employers should review their human resources policies to make sure that policies and practices are consistent with public health recommendations, as well as with existing state and federal workplace laws.
What if the Government Recommends a Quarantine?
If state and local health authorities recommend the use of social distancing strategies, employers should explore whether they can establish policies and practices, such as telecommuting or staggered shifts, to increase the physical distance among employees and between employees and others. Employers will need to ensure they have the information technology and infrastructure needed to support multiple employees who may be able to work from home.
All businesses should identify the essential business functions and jobs or roles required to maintain business operations, and then plan to minimize exposure between employees and also between employees and the public.
In some communities, early childhood programs and K-12 schools may be dismissed, particularly if COVID-19 worsens. Employers need to determine how they will operate if absenteeism spikes from increases in sick employees, those who stay home to care for sick family members, and those who must stay home to watch their children if dismissed from school.
OSHA concerns are more apt to apply to employers in the healthcare fields, but all employers should identify possible work-related exposure and health risks to your employees. According to the Centers for Disease Control (“CDC”), “for the majority of people, the immediate risk of being exposed to the virus that causes COVID-19 is thought to be low. There is not widespread circulation in most communities in the United States.”
Employers Could Gather Information from Employees
Employers need to talk to their employees. In 2009, the Equal Employment Opportunity Commission (“EEOC”) issued guidelines related to the H1N1 virus (swine flu). In those guidelines, the EEOC indicated that during a pandemic, employers had more discretion to ask questions that normally may be considered to be intrusive to an employee’s rights under Title VII or the Americans with Disabilities Act (“ADA”). Employers may make inquiries that are not disability-related. An inquiry is not disability-related if it is designed to identify potential non-medical reasons for absence during a pandemic (for example, curtailed public transportation) on an equal footing with medical reasons (like chronic illnesses that increase the risk of complications).
Can an Employer Send a Sick Employee Home?
Yes. The CDC states that employees who become ill with symptoms of influenza-like illness at work during a pandemic should leave the workplace. An employer should also advise the employee to seek medical attention.
What Can an Employer Ask an Employee if They Call in Sick?
ADA-covered employers may ask such employees if they are experiencing influenza-like symptoms, such as fever or chills and a cough or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
When Can the Employee Return to Work?
If an absent employee has not been diagnosed as having symptoms related to the coronavirus, the employee should remain at home until they no longer display symptoms and are not contagious – typically no less than 24 hours after last having a fever. In fact, the CDC recommends not seeking a doctor’s note because of the anticipated potentially high burden on the healthcare system.
If the employee was diagnosed with coronavirus related diseases, the employee should not return to work until released to do so by an appropriate healthcare provider or a local department of health.
A pandemic is a unique situation. Employers may tell an employee not to return to work under a concern about a direct threat to the workplace. Employers want to reduce absences, so an employer may ask an employee to stay home longer than the employee would like to.
Absences Caused by COVID-19 are Absences under Attendance Policies
As long as the employee is not entitled to FMLA leave, an absence as a result of COVID-19 counts as an absence from work.
Is COVID-19 an FMLA Eligible Illness?
Usually the typical coronavirus or flu is not an FMLA event. However, it may be depending on whether the employee meets the other standards of the FMLA, including at least three days (calendar, not work days) of incapacity, coupled with either two visits to a physician or a single visit with continuing treatment, like a prescription. As COVID-19 is a virus, there is little prescription medication that can influence or cure any exposure.
Is COVID-19 a Disability?
This is unlikely, due to the short nature of the illness.
Will Those Affected be Paid for their Absences?
Employers should follow their standard policies that may require employees to use available sick pay or medical leave. If that is paid leave, follow the policy. If it is unpaid leave, follow the policy.
The answer is very easy for hourly workers. Whether the employee calls in sick or the employer sends a potentially ill employee home, the employer does not have to pay an hourly worker.
The answer may be a bit more complicated for salaried workers. Salaried workers who call in sick are not required to be paid by the employer under a sick pay policy and a full-day absence can be unpaid. However, if the employer has sent the employee home, the employer may have to pay, unless the employee is absent for a full week.
Employers should consider, however, suspending strict adherence to any sick leave or absence policies.
Wash Your Hands
The best advice is to encourage general hygiene principals. Encourage employees to stay home when sick to prevent the spread of illnesses. Remind employees of cough and sneeze etiquette. Everyone should wash their hands with soap and water for at least twenty seconds every time. If that is not available, use hand sanitizer that contains at least 60-95% alcohol.
For additional information, the CDC has issued an Interim Guidance for Business and Employers
Above all else, stay safe, healthy, and well.
Theodore T. Storer, Partner