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Employer Frequently Asked Questions (FAQs): Coronavirus

Our office has been contacted by many clients regarding employment issues arising related to the spread of Coronavirus in the United States.  In response to many frequently asked questions, we have compiled the below Q&A to provide general guidance on employment issues that many companies are preparing to face.  

This Q&A is general, does not address any specific issues that your company may face, and, given the speed with which state and federal governments are rapidly changing guidance in response to the spread of Coronavirus, applicable as of posting but the relevant guidance may change thereafter.  

We will do our best to update this Q&A as guidance changes, but we encourage employers to contact a MacDonald Illig attorney to discuss the specific factual situations, and, given the rapidly changing legislative and administrative developments, to discuss the current status of the employer’s responsibilities and it’s employee’s rights.

Workplace Safety

How can we prepare the workplace for COVID-19?

The Occupational Safety and Health Administration (“OSHA”) recently issues Guidance on Preparing Workplaces for COVID-19, outlining preventative and responsive measures for businesses to take to reduce risk of COVID-19 in the workplace and appropriately respond in the event certain risk factors of COVID-19 materialize.  The guidance varies according to the level of exposure risk in the workplace.  However, generally the Guidance provides that all employers should: (1) develop an infectious disease preparedness and response policy and plan; (2) implement basic infection prevention measures, such as promoting hand washing and other good hygiene practices, encouraging sick employees to stay home; (3) explore flexible workforce procedures to reduce the risk of infection, such as permitting remote work or staggered scheduling, modify attendance policies to disincentivize sick employees showing up to work, and modify sick leave policies; and (4) implement workplace controls to minimize potential exposure to COVID-19, including workforce training, making changes to accommodate non-traditional scheduling and to the workplace environment, minimizing face-to-face meetings, providing resources for good hygiene, and providing personal protective equipment.

The CDC provides increasing preventative and responsive measures based on higher Risk Settings.  You should consult the specific CDC Guidance for the Risk Setting that your business falls into.  The four Risk Settings are: (1) Very High Exposure Risk, i.e. healthcare workers performing procedures and exams on known or suspected COVID-19 patients, laboratory personnel testing for the virus, and morgue workers handling bodies of known or suspected COVID-19 patients at the time of death; (2) High Exposure Risk, i.e. healthcare delivery and support staff that must enter to rooms of known or suspected COVID-19 patients, medical transport workers that have transported known or suspected COVID-19 patients, and mortuary workers that prepare the body of a known or suspected COVID-19 patient at the time of death; (3) Medium Exposure Risk, i.e. jobs that require frequent or close contact with people or the general public, e.g., schools, high-density work environments, etc.; and (4) Low Exposure Risk, i.e. jobs that do not require frequent close contact with the general public or coworkers, i.e. office jobs.  

Can we exclude an infected employee, or employee that is suspected to be infected with COVID-19, or an asymptomatic employee that has been in close contact with someone who is suspected to be infected?

Yes.  The OSHA regulations state that employers should encourage sick employees to stay home, and EEOC guidance provides that you can send sick employees home that is symptomatic of COVID-19.  You should encourage employees to follow CDC and Department of Health guidelines regarding isolation and testing for COVID-19.  Whether you have an employee that tests positive for COVID-19, or just suspected to have COVID-19, you should send that employee, as well as any other people that employee has been in close proximity with, and any people those employees have been in close proximity with, for a 14-day quarantine to determine whether employees are infected and to stop the spread of COVID-19 more broadly.  If test results come back positive for COVID-19, you should let your other employees know about their possible exposure, while making sure to protect the privacy of the infected employee.  You should also notify any clients or other people that have been in close contact with the infected employee.  

Can we exclude an employee from work that is returning from international travel?

Yes, even if the employee is asymptomatic, if the employee is returning from a country with a CDC Level 3 Travel Health Notice (widespread, ongoing transmission).  Pursuant to CDC recommendations, the employee should self-quarantine for 14-days and if symptoms develop within those 14-days the employee should seek medical care.  Currently there are 32 countries with a Level 3 Travel Health Notice, however the list could change at any time.  You should check regularly to see if the list is updated.  

When can an excluded employee return to work?

If the workplace is a CDC Lower Risk setting, an employee that is not positive for COVID-19 can generally return to work after the quarantine period so long as the employee has not had any symptoms, without the aid of fever-reducers or symptom masking medicines, for least 24-hours.  Be sure to follow CDC guidance as it is updated regarding the criteria to return to work for the all Risk settings.  Pursuant to CDC guidance, you should not require a doctor’s note for an employee to return to work because of the stress such a policy would put on an already busy healthcare system.  

Can we require asymptomatic employees to work remotely?

Yes.  The CDC Guidance for Preparing Workplaces for COVID-19 encourages implementing a work-from-home policy as a workplace modification to help prevent spread of COVID-19.  Further, the Department of Labor recently issued guidance regarding COVID-19 that states that an employer may encourage or require working remotely as an infection-control or prevention strategy, so long as the employer doesn’t single out employees for working remotely versus reporting to the workplace on a basis prohibited by the Equal Employment Opportunity laws. 

Attendance, PTO, and Leave Issues

Does an employee’s COVID-19 related absence count against an employee’s PTO?

Maybe.  While the CDC Guidance for Preparing Workplaces for COVID-19 suggests an employer modify its policies to accommodate absences related to COVID-19, an employer is not required to modify its paid time off (“PTO”) policy.  Therefore, if the employee’s absence would normally count against his/her PTO, absent a change to your PTO policy, the employee’s COVID-19 related absence should count against his/her PTO.  If the employee exceeds his/her PTO, the CDC Guidance encourages accommodating the employee’s additional COVID-19 related absences, but the employer is not required to pay the employee for absences above the employee’s entitled PTO days.  If your company does not provide paid sick days, vacation days, personal days, or other PTO, you are not required to provide PTO for COVID-19 related absences.  

Employers should be aware, however, that there is currently legislation in Congress and the Pennsylvania Legislature to address paid time off for employees.  While no bill has been passed in Pennsylvania regarding paid sick leave, on March 14, 2020 the U.S. House of Representatives passed the Families First Coronavirus Response Act (the “FFCRA”).  

The FFCRA applies to governmental employers, as well as private employers of less than 500 employees.  However, employers with fewer than 50 employees can seek hardship exemptions.  However, if you have less than 500 employees, if passed by the Senate and signed by the President, the FFCRA will apply to your company.  The FFCRA would significantly change your company’s obligations, most notably by expanded the FMLA and creating Emergency Paid Sick Leave.  Provisions of the FFCRA expand the FMLA in several respects: (a) to include job-protected leave for the coronavirus public health emergency, including all employers with less than 500 employees, even those that would otherwise be exempt from the FMLA, (b) extend coverage to all employees that have worked for the employer for 30 days or more, (c) extend leave beyond the prior serious medical condition standard, to include leave to respond to quarantine recommendations or care for a family member doing so, and care for children whose school has been closed, and (d) make the first 14 days of emergency FMLA leave unpaid, unless the employee opts to use accrued PTO, followed by paid emergency FMLA leave at a rate not less than 2/3 of the employee’s regular rate.  The FFCRA also provides for the Emergency Paid Sick Leave Act (the “EPSLA”), again applying to all employers with less than 500 employees.  Under the EPSLA, employers are required to provide full-time employees with 80 hours of paid sick leave, and part-time employees with sick leave equating to the typical number of hours the employee works in a two-week period.  Employees would be eligible for EPSLA paid leave at a rate of at least 2/3 of the employee’s regular rate if the employee is infected and self-quarantining, to obtain diagnosis or preventative care for COVID-19, to care for a family member, or to care for a healthy child whose school or childcare is closed because of the coronavirus.  

If the FFCRA is enacted into law, or a Pennsylvania paid sick leave bill is enacted into law, your obligations and your employee’s rights may change.  For a longer analysis of the FFCRA, please read Analysis: The Families First Coronavirus Response Act.

Is COVID-19 a disability under the ADA?

Probably not, unless complications from infection arise.  Generally the flu or a pandemic virus is not considered a disability under the Americans with Disabilities Act (“ADA”).  However, if an employee is infected with COVID-19 and develops complications from the infections, those complications may lead to a condition qualifying as a disability under the ADA.  Furthermore, if an employer treats an employee with COVID-19 as being disabled, the employee can bring a claims under the ADA for being “regarded as” disabled.  

Is an employee’s absence for COVID-19 covered by FMLA?

Maybe.  The Family and Medical Leave Act  (“FMLA”) provides leave and job protections benefits for employees who miss work due to the employee’s serious health condition, or because the employee has to care for a close family member that has a serious health condition.  The flu or a pandemic virus does not generally qualify as a serious health condition, therefore the employer covered by the FMLA cannot count an employee’s absence against the employee’s 12-weeks of FMLA leave.  However, if the employee develops complications from COVID-19 that require hospitalization otherwise incapacitates the employee, the employee likely qualifies as having a “serious health condition,” and is entitled to the protections provided by the FMLA.  An employee’s absence unrelated to a serious health condition, e.g. to care for a healthy child while school is closed, or staying home to avoid potential exposure to the virus, is not protected by the FMLA.  

Privacy Issues

Can we disclose information about our employees to officials asking for emergency health information without violating HIPAA?

Yes, likely.  HIPAA only applies to “covered entities,” being, generally, medical providers and health insurance providers.  Your business is likely not a covered entity.  HIPAA does not cover information that you learn from the employee or another person, however, you should be mindful of an employee’s privacy.  However, if the employer gained knowledge of the protected information as administrator of a health insurance plan, HIPAA would apply.  

If you are an employer and have any questions, please contact one of the attorneys in our Labor & Employment Group