There is no doubt about it: the focus on everyone’s mind across the world is on the coronavirus, (COVID-19). In the wake of this pandemic, virtually every industry and workplace is likely facing issues related to it. Employers are being confronted with a host of issues from how best to protect workers to determining when employers can require employees to stay home. The following are some of employers’ most commonly asked questions:
What Workplace Safety Guidelines Should Employers Follow?
The Occupational Safety and Health Administration (OSHA) recently published Guidance on Preparing Workplaces for COVID-19, outlining steps that employers can take to help protect their workforce. OSHA has divided workplaces and work operations into four risk zones, according to the likelihood of employees’ exposure during a pandemic. These risk zones provide a useful guide in determining appropriate workplaces and precautions. In addition, companies should provide their employees with information about ways to avoid spreading the infection. Employers should educate their workforce about modes of transmission and symptoms by directing employees to both public health guidelines and the official sources of information on which the organization will rely.
The CDC advises that employees should:
- Stay home if they have respiratory symptoms (coughing, sneezing, shortness of breath) and/or a temperature above 100.4 F.
- Leave work if they develop these symptoms while at the workplace.
- Shield coughs and sneezes with a tissue, elbow or shoulder (not their bare hands).
- Wash hands often with soap and water for at least 20 seconds or use an alcohol-based hand sanitizer.
As hand washing is one of the most effective defenses against the spread of the virus, employers must make sure that employees have access to washing facilities and that those facilities are kept stocked with soap and paper towels. Hand sanitizers should be distributed throughout the workforce and all frequently touched surfaces, such as countertops and workstations, should be routinely cleaned.
Can an Employer Require That an Employee Disclose That He/She Has the Coronavirus? What Can an Employer Do if an Employee Has Tested Positive?
An employer can require that an employee who tests positive for coronavirus disclose confidentially the test results to the employer. Under the Americans with Disability Act (ADA), an employer is permitted to require that an employee disclose health information with respect to whether the employee poses a direct threat to the health or safety of himself/herself or others. The Equal Employment Opportunity Commission states that there are four factors to consider in determining whether there is a direct threat: (i) the duration of the risk, (ii) the nature and severity of the potential harm, (iii) the likelihood that the potential harm will occur, and (iv) the imminence of the potential harm. If an employee tests positive for the coronavirus, an employer should send home not only that employee but also all employees who worked closely with that individual for a 14-day period of time to make sure that the infection does not spread. The employer should also arrange for a deep cleaning of the affected workplaces and inform building management so that they can take whatever measures they deem appropriate.
What Is an Employer’s Obligation With Regards to Leave and Pay?
Employers should examine their legal obligations to provide employees with leave in the event of illness or disability and determine whether their policies need to be adjusted in the current circumstances. The California Family Rights Act (CFRA) and Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), California Fair Employment and Housing Act (FEHA) and state workers’ compensation laws will apply, in addition to any contractual language. Employers should determine under what, if any, circumstances they want to expand or extend benefits and they should examine their level of income protection for employees on leave. Additionally, employers should also evaluate whether they want to adjust benefit plans for employees who exceed sick-day allotment in order to care for a relative who has fallen ill.
What State Benefits Are Available to Employees Who Are Absent From Work Due to the Coronavirus?
Sick or quarantined employees who either have the coronavirus or have been exposed to it can file a Disability Insurance (DI) claim.
If an employer reduces an employee’s hours or stops operations, an employee can file a claim for Unemployment insurance. Unemployment insurance provides partial wage replacement benefits under these circumstances.
Employees who are unable to work because they are caring for sick or quarantined family members with the coronavirus can file a Paid Family Leave (PFL) claim.
How Can Employers Plan For a “Worst-Case Scenario?”
Employers should implement an infectious disease policy immediately that accounts for worst-case scenarios and plans that they can easily implement to avoid unnecessary disruption in the workplace. For instance, contingency planning may include temporary succession planning for key decision makers and understanding and preparing in advance for the legal requirements in cases of layoffs. In addition, employers should make sure they are educated about, or have experienced legal counsel to advise them on, the range of employment laws that come into play in dealing with individualized employee situations.
What Information Can an Employer Share With Employees if Another Employee Is Quarantined?
Employers should not disclose the identity of colleagues who are quarantined because confidentiality requirements under the Americans with Disabilities Act (ADA) and/or California’s Confidentiality of Medical Information Act (CMIA), may apply. However, employers should notify employees if they may have been exposed to the virus when a colleague tests positive for it.
What Health Information Can We Solicit From Our Employees to Determine if They Should Remain in the Workplace?
Employers may ask employees if they are experiencing coronavirus symptoms such as fever, tiredness, cough, and shortness of breath because during a pandemic these are not disability-related inquiries.
If an employee voluntarily discloses (without a disability-related inquiry) that she has a specific medical condition or disability that puts him or her at increased risk of complications from COVID-10, an employer may ask her to describe the type of accommodation she thinks will be needed.
To mitigate the risk of privacy violations, employers should maintain all health information in a separate, confidential medical file with limited access.
Running a business in the days of the coronavirus is not easy. You have to manage your bottom line, take all necessary measures to keep your employees safe, address employees’ concerns and face the very real possibility that increasing numbers of your workforce may fall ill. The best advice is to be as prepared as possible and to have a plan. It is highly advisable to seek the counsel of an experienced and knowledgeable employment law attorney who can assist with infectious disease policies, potential layoffs and ensuring employer compliance with the myriad of state and federal employment laws being triggered by the COVID-19 pandemic. For a free consultation contact Danielle G. Eanet of Eanet, PC online or by telephone at (310) 997-4185 ext. 206.