Employers should stock up Corona Virus response tools

By Kathryn M. Hindman & Liani J. Reeves By Liani J. Reeves and Kathryn M. Hindman
Bullard Law,

As people flock to grocery stores to stock up on toilet paper and hand soap, employers should brace themselves for the unknowns ahead associated with the coronavirus.

Background

According to the Center for Disease Control (CDC), the virus named “SARS-CoV-2” has led to an outbreak of respiratory disease being named “coronavirus disease 2019” (abbreviated COVID-19). The virus was first detected in the Hubei province of China and has now spread to almost 70 countries around the world, including the United States. The CDC confirmed Oregon’s first case of coronavirus earlier this week, and a second patient has tested positive for the virus. The highest numbers of cases in the United States are concentrated on the west coast in Washington and California.

For more information about the virus, symptoms, how it spreads, and prevention and treatment, see the CDC website.

While there are many unknowns associated with the COVID-19 virus, employers may be dealing with a workforce that is scared, at best, and absent, at worst. Employers should be using this time to take proactive steps to determine how they are going to respond to this real or perceived threat, how to keep their employees safe and healthy, and how to keep the lights on. Those steps will be specific to each particular workplace and workforce. For example, some industries are at higher risk of exposure due to the nature of the work (e.g. health care) or due to international operations or travel. Some businesses may be more conducive to employees working remotely than others. Public employers have obligations to serve the public that will impact their ability to respond. All employers should be examining their policies, practices, workflow, and workforce to determine an appropriate response plan.

Here are some considerations that could help guide the process.

Sending Employees Home

Employers and employees alike are most interested in the question of whether an employer can send an employee home if displaying signs of illness. The answer to that question is “yes.” But employers should only do so thoughtfully and pursuant to developed policy and procedure, and not reactively or arbitrarily.

Sending employees home when they display symptoms of a contagious illness implicates the Americans with Disabilities Act (ADA), which prohibits discrimination against an individual with a disability. Although in most cases the COVID-19 virus is a transitory condition which would not trigger coverage under the ADA, arguments can be made that the virus substantially limits a major life activity, such as breathing, which would trigger such coverage.

Under the ADA, disability-related inquiries or medical examinations are generally prohibited unless they are job-related and consistent with business necessity. A disability-related inquiry or medical examination of an employee is considered job-related and consistent with business necessity when an employer has a reasonable belief, based on objective evidence, that an employee’s ability to perform essential job functions will be impaired by a medical condition, or that an employee will pose a direct threat due to a medical condition.

Employees who are displaying potential signs of an acute respiratory illness (i.e., cough, shortness of breath) may be unable to perform the essential job functions due to a medical condition. The employer may take steps to ensure the employee can perform the essential functions of the job. Indeed, the CDC recommends that employers separate employees who appear to have acute respiratory illness symptoms upon arrival to work, or who become sick during the day, from other employees and to send them home. The CDC also recommends that employers actively encourage employees with symptoms of acute respiratory illness to stay home. This includes making sure that sick leave policies are flexible and non-punitive and educating employees about the policies and the importance of sick employees staying home. However, the CDC is recommending at this time that employers do not require a health care provider’s note to validate illness or authorize a return to work due to the fact that health care providers and medical facilities are extremely busy and may not be able to provide documentation in a timely way.

The other justification for disability-related inquiries or medical examinations is when an employee may pose a “direct threat” due to a medical condition. The EEOC’s guidance states that whether an influenza rises to the level of a “direct threat” depends on the severity of the illness. While a seasonal influenza would not pose a direct threat or justify disability-related inquiries and medical examinations, if the CDC or state or local health authorities determine that pandemic influenza is significantly more severe, it could pose a direct threat. The assessment by the CDC or public health authorities would provide the objective evidence needed for a disability-related inquiry or medical examination. The coronavirus has not been declared pandemic, although many speculate that it will be designated as such.

When sending employees home, employers must be careful that those decisions are being made objectively and not based on discriminatory reasons. For example, employees with real or presumed ties to China should not be treated differently than their colleagues. Doing so could lead to a case of national origin or race discrimination.

If an employee is confirmed to have COVID-19, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace, but maintain confidentiality as required by the ADA. Telework may also be an effective strategy and accommodation. Co-workers who may have been exposed to the virus should be sent home for at least 14 days.

Paying Employees

Of course, sending employees home may impact employees’ pay. The Fair Labor Standards Act (FLSA) and state law require employers to pay employees for time worked. At-will hourly employees who are at home sick or in quarantine do not need to be paid if they are not working. For FLSA-exempt “white collar” employees paid on a salary basis, if the employee performs at least some work in the employee’s designated workweek, the employee must be paid the entire salary for that workweek unless they could substitute paid sick leave or PTO. The employee does not need to be paid if sent home for the entire workweek. Employers may have other obligations that govern payment such as a collective bargaining agreement, sick leave policies or contract obligations.

Oregon’s paid sick leave law, the Family and Medical Leave Act (FMLA) and the Oregon Family Leave Act (OFLA) require employers to provide employees who are ill or have a serious health condition, or who have a family member with a serious health condition, with certain amounts of protected leave. An employee who has COVID-19 or is caring for a family member with the virus would qualify as a “serious health condition.” If eligible for such leave, the employee would be entitled to protected leave and job reinstatement.

Current Strategies

The CDC’s interim guidance includes strategies for employers to use now to help minimize spread of the coronavirus. This includes:

Actively encouraging employees who are sick to stay home.
Emphasizing respiratory etiquette and hand hygiene, including:
– Sick employees should cover their noses and mouths with a tissue when coughing or sneezing (or an elbow or shoulder if no tissue is available).
– Employees should clean hands often with an alcohol-based hand sanitizer that contains at least 60-95% alcohol, or wash their hands with soap and water for at least 20 seconds.
To that end, employers should provide:
– Tissues and no-touch disposal receptacles for use by employees;
– Soap and water and alcohol-based hand rubs in multiple places in the workplace; and
– Disposable wipes so that commonly used surfaces (e.g., doorknobs, keyboards, remote controls, desks) can be wiped down by employees before each use.
Employers should conduct routine environmental cleaning of frequently touched surfaces in the workplace, such as workstations, countertops, and doorknobs.
Employees who travel should be advised to check the CDC’s Traveler’s Health Notices for the latest guidance and recommendations for each country.

Preparing for the Future

Employers should be developing and sharing with employees an Infectious Disease Outbreak Response Plan to protect their workforce while ensuring continuity of operations. Planning should include:

– Identifying possible work-related exposure and health risks to employees.
– Reviewing human resources policies to make sure that policies and practices are consistent with public health recommendations and are consistent with existing state and federal workplace laws.
– Determining how school closures may impact operations 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.
– Exploring policies and practices to increase physical distance among employees such as flexible worksites (e.g., telecommuting) and flexible work hours (e.g., staggered shifts). This includes a review of the information technology and infrastructure needed to support telecommuting.
– Identifying essential business functions, essential jobs or roles, and critical elements required to maintain business operations and plan for how business will operate if there is increasing absenteeism.
– Setting up triggers and procedures for activating the plan.
– Establishing a process to communicate information to employees and business partners on the plan and latest COVID-19 information.

The CDC’s full guidance on what should be included in such a plan is available here.

Conclusion

In summary, in addition to the current steps employers should take to help minimize the spread of the virus, employers should be using this time of the unknown to take steps to assess how an outbreak of the coronavirus may impact a particular workforce and workplace and put together a response plan. This may require a review or revision of current policies governing leave, telecommuting, travel, and more. Hopefully it will not be necessary to implement the plan. However, should the coronavirus reach a pandemic level or hit your workplace, not having a plan could jeopardize the health and safety of employees and the ability to maintain operations. Bullard Law attorneys are available to assist and advise as necessary.

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