Employers are obligated to maintain a safe and healthy work environment for their employees and are subject to a number of legal requirements protecting workers. As the number of reported cases of the novel coronavirus (COVID-19) continues to rise, these employer obligations are becoming more challenging to meet, and they must be met in an expedited timeframe.
Action Steps to Address COVID-19
There are a number of steps employers can take to address the impact of COVID-19 in the workplace. In addition to reviewing the compliance issues covered later in this article, employers should:
- Closely monitor the Centers for Disease Control and Prevention (CDC), World Health Organization (WHO), and state and local public health department websites to ensure you have the most up-to-date information.
- Proactively educate employees on what is known about the virus, including transmission and prevention.
- Establish a written communicable illness policy and response plan that covers communicable diseases readily transmitted in the workplace.
- Consider measures that can help prevent the spread of illness, such as flexible work options like working from home.
Beyond managing compliance issues surrounding the coronavirus, there are so many evolving, complex issues for employers to understand. To help you keep up, check out our handbook – Regulatory & Legislative Update: What Employers Need to Know in 2020.
Disease Prevention Tips for the Workplace
Whenever a communicable disease outbreak is possible, it is recommended that employers establish a written policy and response plan. Things to consider including in the policy:
- requiring employees to stay home from work if they have signs or symptoms of a communicable disease or if they have traveled to high-risk geographic areas until they can provide medical documentation that they are free of symptoms
- allowing employees to work remotely
- cancelling business travel to affected geographic regions
- requiring that employees notify their supervisor and HR department if they have recently or will be traveling to high-risk areas for personal reasons
There are also several legal considerations that employers should keep in mind when developing this policy. These considerations are addressed in the following sections.
Recap of Occupational Safety and Health Act of 1970
Under the federal Occupational Safety and Health Act of 1970 (the OSH Act), employers have a general duty to provide employees with safe workplace conditions that are “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” Workers also have the right to receive information and training about workplace hazards and to exercise their rights as employees without retaliation.
There is no specific Occupational Safety and Health Administration (OSHA) standard covering COVID-19. However, some OSHA requirements may apply to preventing occupational exposure to COVID-19. In addition to the General Duty clause, OSHA’s Personal Protective Equipment (PPE) standards and Bloodborne Pathogens standard may apply to certain workplaces, such as those in the health care industry.
Also, OSHA requires many employers to record certain work-related injuries and illnesses on their OSHA Form 300 (OSHA Log of Work-Related Injuries and Illnesses). OSHA has determined that COVID-19 is a recordable illness when a worker is infected on the job.
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Key Aspects of The Americans with Disabilities Act
The Americans with Disabilities Act (ADA) protects applicants and employees from disability discrimination. It is relevant to COVID-19 because it prohibits employee disability-related inquiries or medical examinations unless:
- They are job related and consistent with business necessity; or
- The employer has a reasonable belief that the employee poses a direct threat to the health or safety of him-or herself or others (i.e., a significant risk of substantial harm even with reasonable accommodation).
According to the Equal Employment Opportunity Commission (EEOC), whether a particular outbreak rises to the level of a “direct threat” depends on the severity of the illness. Employers are expected to make their best efforts to obtain public health advice that is contemporaneous and appropriate for their location and to make reasonable assessments of conditions in their workplace based on this information.
The EEOC has said that sending an employee who displays symptoms of contagious illness home would not violate the ADA’s restrictions on disability-related actions because doing so is not a disability-related action if the illness ends up being mild, such as seasonal influenza. If the illness was serious enough, the action would still be permitted under the ADA as the illness would pose a “direct threat.” In either case, an employer may send employees home, or allow employees to work from home, if they are displaying symptoms of contagious illness.
The ADA requires that information about the medical condition or history of an employee, obtained through disability-related inquiries or medical examination, be collected and maintained on separate forms and in separate medical files and treated as a confidential medical record. Employers should refrain from announcing to employees that a coworker is at risk of or actually has a disease. Instead, employers should focus on educating employees on best practices for illness prevention.
Check out our brief handbook, which provides a review of the legal developments of 2019, as well as highlights of pertinent regulatory and legislative updates employers like you need to know in 2020.
Employee Leave Requirements for COVID-19
If an employee or an employee’s family member contracts COVID-19, the employee may be entitled to time off work under federal or state leave laws. For example, an employee who is experiencing a serious health condition or who requires time to care for a family member with such a condition may be entitled to take leave under the Family and Medical Leave Act (FMLA). An illness like COVID-19 may qualify as a serious health condition under the FMLA if it involves inpatient care or continuing treatment by a health care provider. Employees may also be entitled to FMLA leave when taking time off for medical examinations to determine whether a serious health condition exists.
Many states and localities also have employee leave laws that could apply in a situation where the employee or family member contracts COVID-19. Some of these laws require employees to be given paid time off, while other laws require unpaid leave. Employers should become familiar with the laws in their jurisdiction to ensure they are compliant.
Employees may wish to stay home from work out of fear of becoming ill. Whether employers must accommodate these requests will depend on whether there is evidence that the employee may be at risk of contracting the disease. A refusal to work may violate an employer’s attendance policy, but employers should consult with legal counsel prior to disciplining an employee.
Compensation & Benefits of Missed Work Due to COVID-19
If employees miss work due to COVID-19, whether they are compensated for their time off will depend on the circumstances. As noted above, employees may be entitled to paid time off under certain state laws if they (or a family member) contract the illness. In other cases, non-exempt employees generally do not have to be paid for time they are not working. Exempt employees must be paid if they work for part of a workweek but do not have to be paid if they are off work for the entire week. Note that special rules may apply to union employees, depending on the terms of their collective bargaining agreement.
Employees may be entitled to workers’ compensation benefits if they contract the disease during the course of their employment. Whether they are eligible for other benefits, such as short-term disability, will depend on the terms of the policy and the severity of the illness. Should you have any questions please do not hesitate to contact us.
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