As can be seen from the stockpiling of goods, many people are frightened by the Coronavirus (COVID-19) outbreak. However, employers must not act out of fear and assumptions, but based upon facts, guidance from the government and the law. For example, the CDC provides the following sage advice for employers, “Do not make determinations of risk based on race or country of origin, and be sure to maintain confidentiality of people with confirmed COVID-19.” Centers for Disease Control and Prevention, Interim U.S. Guidance for Businesses and Employers.
Accordingly, employers should be training supervisors not to overreact, not to make discriminatory assumptions or breach employees’ privacy by asking about or disclosing employee health information. Due to the safety concern for the workplace, employers can ask employees to report exposure to the virus and illness from the virus. Employers should not ask employees if they have a health issue that makes them more susceptible to the virus or generally disclose the identity of employees who have contracted the virus.
The CDC has been consistent in the general recommendations on proper handwashing, avoiding close contact with people who are sick, covering coughs and sneezes with a tissue, and staying home when you are sick (other than getting medical care) until free of fever 100.4 or greater, signs of fever, and any other symptoms for at least 24 hours without symptom-altering medicines such as cough medicine or fever suppressants. However, those recommendations should be part of an employer’s larger plan for avoiding the illness and handling an outbreak if it occurs. This plan should also include:
- Encouraging sick employees to stay home;
- Review of sick leave policies to ensure that they are flexible and consistent with public health guidance (for leave for the employee’s health and that of family members) and that employees are aware of the policies;
- Not requiring a healthcare provider’s note for employees who are sick with acute respiratory illness to validate their illness or to return to work;
- Sending home employees who appear to have acute respiratory illness symptoms;
- Placing posters that encourage staying home when sick, cough and sneeze etiquette, and hand hygiene at the entrance to the workplace and in other workplace areas where they are likely to be seen;
- Providing tissues and no-touch disposal receptacles for use by employees;
- Instructing employees to clean their 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;
- Providing soap and water and alcohol-based hand rubs in the workplace;
- Performing routine environmental cleaning; and
- Advising employees to check the CDC’s Traveler’s Health Notices before travelling, to check themselves for symptoms before travelling and stay home if they are ill, as well as notifying their supervisor immediately if they become ill before, during or after travelling.
When creating or revising employment policies and protocols and handling employment issues, employers should remember to:
- Review pay issues for exempt and non-exempt employees under the Fair Labor Standards Act for quarantine time and illness;
- Review company policies and practices on paid and unpaid leave for quarantine time and illness;
- Apply leave under the Family and Medical Leave Act where appropriate for illness;
- Consider reasonable accommodations for employees with disabilities;
- Consider whether illness is work-related for purposes of workers compensation;
- Apply company short-term disability benefits where appropriate; and
- Consider telework options and how to facilitate telework for employees.
If you have questions about handling employee health issues, please contact any of our Employment & Labor Law Practice Group members for more information.