We are in uncharted territory. Life in America, and many other places around the world, is essentially on hold. Children are out of school, and gatherings of any sort are discouraged or cancelled outright. Hopefully, these measures are temporary and serve their intended purpose – stopping the spread of this virus. In the meantime, however, employers find themselves having to balance workplace safely, productivity and legal compliance in a way most have never had to do before. The following are some of the most frequent questions we, as attorneys, are fielding.
Can we ask sick employees to stay home, and can we send sick employees home?
Yes! Not only are you allowed to do so, you should do so. Both the CDC and the EEOC have weighed in on the issue in relation to past influenza outbreaks. The EEOC has made it clear that advising sick employees to leave the workplace does not amount to disability discrimination, and the CDC has advised that this is precisely what employers should do. While we can all appreciate good work ethic, this is no time for employees to “tough it out.” Sick employees should stay home. Period.
What if we have an employee who tests positive?
Obviously, any employee who tests positive should be precluded from coming to work until asymptomatic and cleared for return by his/her physician. Moreover, however, all employees who worked closely with or who came into contact with the affected employee should be sent home for at least 14 days. One important point to note here is that the list of such employees should come from the sick employee, not the other way around. Employers risk violating confidentiality laws if they announce the identity of the sick employee.
What if we have an employee who discloses that he/she came into contact with the virus?
The best practice is to treat such an employee as if he/she is indeed infected with the virus. See above. The same goes for employees who exhibit symptom of the virus but who have not (yet) tested positive.
Are there any OSHA guidelines for handling the outbreak?
Employers have a general duty under Section 5(a) of the Occupational Safety and Health Act (“OSHA”) to furnish employees “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” In this context, this means that employers should implement policies designed to keep the workplace as safe as possible from the spread of the virus. Such policies might include:
- Implementing a plan for routine cleaning and disinfection of commonly-touched surfaces.
- Providing alcohol-based hand sanitizers with at least 60% alcohol in public areas like conference rooms, kitchenettes, and at the reception desk.
- Recommending/requiring frequent hand-washing with soap and water for at least 20 seconds.
- Considering telework or work-from-home policies to decrease potentially contagious interactions.
The U.S. Centers for Disease Control and Prevention (the “CDC”) also make employee-hygiene posters that you can find on its website here and hang around your workplace to remind everyone to do their part in slowing down the virus’ spread.
Can employees refuse to come to work because of the threat of contracting the virus?
In most instances, no. OSHA provides that employees may only refuse to report to work if they believe they are in “imminent danger.” Section 13 of OSHA defines “imminent danger” as “any conditions or practices in any place of employment which are such that a danger exists which could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided for in [OSHA].”
For the vast majority of workplaces, simply reporting to work will not expose employees to “imminent danger” from the coronavirus, especially where employers are taking the precautions suggested above regarding quarantining sick employees and otherwise taking steps to prevent the spread of the virus.
If an employee does contract the virus at work, can he/she pursue a workers’ compensation claim?
In order for an employee to prevail on an “occupational disease” workers’ compensation claim resulting from the contraction of the coronavirus, the employee would have to show: (1) the virus is peculiar to the employment; (2) the job placed the employee at a greater risk of contracting the virus than the general public; and (3) the employment actually caused the employee to contract the virus.
For most employees who contract the virus, it will be difficult for them to satisfy these criteria. Certain healthcare workers might be the exception. Ultimately, we do not expect a great deal of workers’ compensation claims as a result of coronavirus contraction.
Must employers pay employees who are not working?
For non-exempt employees, the answer is almost always “no.” This is so even if the hiatus from work is mandatory and out of their control. Depending on the employer’s polices, other benefits, like paid vacation, sick leave or PTO may be used in order to provide pay while out of work.
The issue becomes a bit more complicated for salaried, exempt employees. The FLSA provides that, in order for such employees to maintain the exempt tag, they need to be paid the full week’s salary for any week in which they perform any work at all. Even in the event of a complete shutdown of operations, it is difficult to imagine any salaried, exempt employees going a full week without performing any work, especially given that most such employee will have remote access to company computer systems, email and phones.
Ultimately, many employers will need to make a judgment call. While most employees need not be paid while away from work, employers would be well-advised to consider the long-term effects on employee retention, morale and productivity.
How Does the Family and Medical Leave Act (FMLA) apply to the coronavirus?
The rules in this regard are the same as with any other sickness. Namely, FMLA eligible employees are entitled to take up to 12 weeks of unpaid leave as a result of their own serious health condition or in order to care for a family member with a serious health condition. Does the coronavirus qualify as a “serious health condition?” The answer is “maybe.” It depends on whether the symptoms the employee (or the employee’s family member) experiences meet the criteria set forth in the FMLA and its regulations. Again, the rules with regard to the coronavirus are the same as they are with regard to the flu or any other illness. That said, we wouldn’t be honest if we didn’t admit that this situation just feels different. While the laws are the same, employers are probably best served by erring on the side of caution when it comes to approving FMLA leave for employees affected by the coronavirus.
Of note, we all know that most schools are cancelled, forcing many employees to choose between reporting to work or staying home to care for their children. Neither the FMLA nor any other federal or North Carolina law provides for protected leave for employees needing to stay home to care for healthy family members. This is yet another situation in which employers must make a judgment call. While no such leave need be granted, consider the real-world and long-term effects on morale, loyalty and productivity and act accordingly.
Is there any paid leave for those affected by the coronavirus?
Not yet. As noted above, established employer policies like paid sick leave, vacation or PTO might provide for employee pay for time missed due to the coronavirus, but as of the date of this publication, there is no federal or NC law mandating paid sick leave for the coronavirus or any other medical condition. That may soon change, however, at least for some.
On Saturday, March 14, 2020, the U.S. House of Representatives passed an emergency relief bill aimed at softening the economic blow of the coronavirus. Among other provisions, the legislation calls for up to three months of paid family and medical leave. As currently written, however, the paid leave provisions will not apply to very large employers (those with over 500 employees) and may not apply to smaller employers (those with less than 50 employees). Certain categories of employees, including some health care providers and emergency responders, are excluded altogether. Also, the paid leave benefits are not permanent and will expire after a year. The Senate is expected to vote on the legislation in the coming week or two.
Ultimately, it looks likely that there will be some form of paid sick leave legislation passed, but the legislation’s scope remains uncertain.