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18 March 2020
In today's global economy, the coronavirus (COVID-19) raises serious concerns for healthcare providers and employers in all industries. For workers who are on the frontline caring for patients and developing diagnostics and vaccines, travelling for business or in close contact with individuals who travel or may have been affected, preparedness and prevention are crucial.
This article answers FAQs regarding COVID-19.(1)
Are additional precautions necessary? If so, what proactive steps should employers take to keep their workplace healthy and safe?
Yes. The General Duty Clause of the Occupational Safety and Health Act (OSHA) requires employers to provide "employment and a place of employment which are free from recognized hazards that are causing or likely to cause the death or serious harm to… employees". Although the Occupational Safety and Health Administration has not set out specific standards covering COVID-19, employers could face a risk under the general duty clause if they do not take affirmative steps to protect their workplace and ensure that potentially affected individuals are not exposed to the workplace.
In addition, in certain healthcare professions and other workplaces where employees are subject to bloodborne pathogens, federal workplace safety law further requires employers to make an immediate confidential medical evaluation and follow-up available for employees that have had an exposure incident.
As a practical matter, employee morale may be affected by whether they understand that the employer has taken all necessary measures to keep employees safe on the job.
Employers should communicate with their employees to reiterate existing workplace rules and outline any additional temporary rules relating to ensuring workplace health and safety. Employers should consider preparing a written communication to employees that outlines these policies and expectations to keep employees healthy and safe in connection with the COVID-19 outbreak.
Employers may wish to implement proactive temporary policies with respect to business travel. For example, employers may suspend all non-essential business travel and require employees to submit an application to demonstrate need before travelling for business.
Employers may consider temporarily suspending business events that involve large groups of employees (eg, work conferences). Employers may also elect to limit in-person meetings, using alternatives such as phone or video conferences.
In-office protections can be used to prevent the transmission of illness and assuage fears of transmission, such as providing face masks and hand-sanitising stations and increasing environmental cleaning and sanitation procedures.
If concerns escalate (eg, if an employer's workplace is in an affected area or one of its employees is affected with the virus), in-office attendance can be limited to essential personnel and additional measures can be put in place to limit direct interaction among employees.
An employee is experiencing mild illness symptoms but has asked to continue working. Should they report to work?
No. Employees who are ill should not come to the workplace. If an employee reports to the workplace exhibiting symptoms, they should be sent home immediately.
If an employee is not too ill to work:
If an employee is too ill to work:
Can employers require documentation from healthcare providers for employees who are sick with acute respiratory illness? If so, should they?
The answer to this question will differ based on jurisdiction (and particularly in jurisdictions that maintain state or local paid sick leave laws) and circumstance.
Federal law generally permits employers to require reasonable documentation from healthcare providers to support the existence of an illness requiring time out of the business or to certify an employee's fitness to return to the workplace.
The Americans with Disabilities Act allows employers to ask employees to provide documentation from their healthcare provider to evaluate the extent of an impairment where an employee has requested an accommodation or the employer has an objective basis to believe that the employee cannot perform the essential functions of their job because of an impairment.
In some jurisdictions, state or local law may further address whether an employer may require medical documentation for an employee who requires a short-term absence for their own illness or the illness of a family member. In some cases, documentation should not be required, particularly where the employee is using paid sick leave.
Moreover, at this time, the Centres for Disease Control and Prevention (CDC) recommends that employers do not require a healthcare provider's note for employees who are sick with acute respiratory illness to validate their illness or to return to work, since healthcare provider offices and medical facilities may be overburdened and unable to provide such documentation in a timely manner.
In response to COVID-19, employers that typically require medical certification may want to consider temporarily relaxing the requirement of documentation from employees who are sick with acute respiratory illness due to the difficulty that some employees may have obtaining access to medical providers under the present circumstances and to encourage ill employees to remain away from the workplace until they are healthy.
Regardless of whether employers decide to temporarily discontinue requests for documentation or continue following existing policies (as permitted by applicable laws), they should maintain consistent policies and enforce those policies consistently (ie, avoid disparate treatment of employees with similar symptoms). Employers should consult employment counsel to address these situations.
If an employee has to stay home due to COVID-19 concerns and has no PTO or paid sick leave, must the employer compensate them for their time away from work?
First, if an employee who is at home feels well enough to work, the employer can allow them to do so and should compensate them as if they are performing work in the workplace.
If the employee cannot work remotely but has exhausted their paid leave options (eg, PTO or paid sick leave), the employer is not legally obligated to compensate them unless company policy dictates otherwise. (Employers should continue to follow their current pay practices regarding time out of work due to illness.)
Although there may be no legal obligation to provide compensation to such employees during their time away from the workplace, employers might consider implementing temporary policies to incentivise employees to remain home while ill, such as one-time front-loading of additional PTO or paid sick leave time. Employers should consult with legal counsel regarding whether such additional time would be subject to laws regulating vacation and paid sick leave in their jurisdiction, such as carry over, caps and pay out on termination, and to develop a written policy in connection therewith.
If employees are permitted to work remotely, must their employer provide them with additional equipment or can they use their own (eg, a personal computer, mobile phone and printer)?
Employers may generally require their employees to use their own personal devices for work-related matters. Depending on the jurisdiction, employers may be required to reimburse employees for costs associated with the use of their personal devices for work purposes.
Employers that permit employees to use their personal devices to conduct company business should consider whether this may affect the company's ability to protect the security of company data. For instance, employers may consider implementing security measures on those personal devices to protect company data and confidentiality.
Employers should also ensure that they have written policies in place that define and communicate an employee's expectation of privacy on their personal devices (or lack thereof), if used for work purposes.
If non-exempt employees are given remote access to perform work (eg, access to work emails on a mobile phone), employers should set out the expectation that work will be performed only during working hours and when the employee is 'on the clock'.
If an employee is quarantined for an extended period, what are the employer's responsibilities?
According to the CDC, US citizens, residents and immediate family members who have been in certain affected areas (eg, Hubei province and other parts of mainland China) and who have been allowed to enter the United States may be subject to health monitoring and possible quarantine for up to 14 days, even if they are not exhibiting symptoms.
If an employee is subject to quarantine or isolation for an extended period, employers should contact counsel to determine their responsibilities and what protections employees may be afforded during this time. Applicable state laws and municipal and county ordinances vary, and some require that employees be provided job-protected leave in this instance. Employee contracts or applicable collective bargaining agreements may also be instructive.
What should employers do if an employee has travelled through a high-risk area?
First, employers should have a discussion with the potentially exposed employee to understand the timing, duration and extent of the travel in the high-risk area or exposure and whether the employee has had any common symptoms of COVID-19. Discussion of an employee's confidential medical information should be handled by designated individuals within the company who are trained to handle sensitive information and knowledgeable regarding what questions may be asked pursuant to the employer's jurisdiction's laws (eg, HR professionals who manage the company's leaves of absence).
While the Americans with Disabilities Act places some restrictions on what medical-related enquiries an employer can make of its employees, guidance issued by the Equal Employment Opportunity Commission during the H1N1 flu outbreak is clear that employers need not wait until an employee returning from high-risk travel develops symptoms to enquire about exposure to similar outbreaks such as COVID-19. State and local laws may further dictate what information may be requested from an employee in these situations.
If the potentially exposed employee reports having no symptoms and it has been more than 14 days since exposure or travel to the high-risk area, the CDC does not recommend any special treatment of asymptomatic people outside the 14-day incubation period. Because the CDC does not recommend testing, special monitoring or special management for people exposed to asymptomatic people, employers need not take additional steps with respect to other employees. However, employers should still be careful to encourage good sanitary practices in the workforce.
If the potentially exposed employee reports having had no symptoms and it has been less than 14 days since the potential exposure or travel to the high-risk area, the following steps should be followed:
If the potentially exposed employee reports symptoms of COVID-19, the following steps should be taken:
In taking the above actions, the employer must be careful to avoid discrimination against individuals who are perceived as having contracted COVID-19 or who may be from high-risk areas. In addition, the employer must make sure to comply with the confidentiality restrictions imposed by the Family Medical Leave Act, the Health Insurance Portability and Accountability Act (HIPAA) and similar state and local laws; in particular, the person who contracted COVID-19 or symptoms should not be identified to other employees.
If an employee has to obtain a fitness-for-duty certification before returning to work, does the employer have to pay for their out-of-pocket expenses?
Depending on the circumstances, testing and a fitness-for-duty certification may be necessary, particularly for employees who:
That said, if the employer requires its employee to obtain a medical certification or test, state law may require the employer to reimburse the employee for these costs. In addition, for non-exempt employees, the employer may be required to compensate the employee for their time spent obtaining the certification. For certain workplace exposures (eg, bloodborne pathogen exposure), the employer would be required to pay for the cost of testing under OSHA regulations. Counsel should be contacted to discuss each particular situation and jurisdiction further.
In scenarios where the employer sends an employee for laboratory testing under state and federal legal authorities, the laboratory conducting the test may reveal the results directly to the employer in accordance with HIPAA (See 45 CFR § 164.512(b)(1)(v)).
If a business is struggling and the COVID-19 pandemic is affecting supply chains, customer demand and employee availability, can the employer implement salary reductions for exempt employees to adjust for this downturn?
Yes – in general, employers may prospectively reduce salaries for at-will, exempt employees during a business or economic slowdown, so long as the reduction is done for bona fide, long-term business reasons and not on a day-to-day or week-to-week basis. For employees who are under contract, the employer must review the terms of the agreement before modifying the employee's compensation or other employment terms.
Many state and federal exemptions require employers to compensate employees on a salary basis and require such employees to earn at least a threshold minimum salary. The threshold may vary depending on the state of employment. Employers should be cognisant of these requirements if they are considering reducing salaried, exempt employee salaries to ensure that otherwise-exempt employees remain exempt and continue to meet the minimum salary threshold applicable.
Any reduction in employee pay should be implemented in a non-discriminatory, even-handed way. Any substantial reduction in an employee's compensation may be interpreted as constructive termination if the employee resigns as a result. Therefore, employers should understand that such terminations may be interpreted as an involuntary employer-initiated termination for employment law purposes.
Can employers require their employees to travel (both domestically and internationally) as part of their normal job duties?
OSHA allows employees to refuse to travel if there is a known or realistic threat to their health or safety, but general travel on airplanes and public transit to densely populated areas should not constitute such a danger. Employers can require employees to engage in ordinary business travel unless there is a known danger in sending the employees to specific locations. Employers should consult the CDC travel advisories to determine if this will be an issue:
If employees come together to protest or refuse to engage in travel – or even if only one employee comes forward on behalf of their colleagues – their concerted efforts could be protected under the National Labour Relations Act. Counsel should be consulted in such circumstances.
While employers may be permitted to require employees to travel under pertinent law, they should remain cognisant of employee morale and weigh temporary business hardship against potential harm to morale, retention and recruiting. If 'business as usual' is not exactly palpably dangerous but still makes employees uncomfortable, input should be sought from other managers or senior employees for ways to accommodate employees' concerns while still maintaining productivity. Permitting employees to conduct certain business by video conference or other remote method rather than requiring travel may be a temporary and effective compromise to permit employees to refrain from travel, while allowing most business to continue.
Can employers prohibit employees from travelling outside the United States or to affected areas?
No – as a general rule, employers cannot control an employee's lawful, off-duty conduct, including elective travel. However, given the current circumstances, it would be reasonable to introduce a policy requiring employees to disclose what their travel plans are.
Many people book travel a long time in advance. If an employee has already booked travel to a known affected area and still intends to travel, they should be reminded of the risks involved and the employer's obligation to protect the health and safety of its employees. The employee should be asked to keep the appropriate company contact (eg, HR) informed of any health concerns.
Employers should ensure that employees understand the policy in relation to pay if they do have to go into quarantine on their return from travel and whether remote work is available for them.
An employee of Chinese descent (Employee A) sits in a cubicle near other employees. A different employee (Employee B) has asked to move to a cubicle farther away from Employee A, citing concerns that Employee A's family may visit from China and carry COVID-19 with them. Should the employer agree to move Employee B?
Employers should be aware of possible biases and stereotypes that may arise in the midst of the COVID-19 outbreak. As conflict may arise, employees should be reminded of the company's anti-discrimination policies and the company should enforce the policy consistently.
In the above situation, the employer should not agree to move Employee B if the only basis for the request is that Employee A is Chinese. If Employee B's concerns are founded on a legitimate concern of exposure (eg, Employee A's disclosure that family has recently visited from China), additional steps should be taken to assess the situation and handle any actual potential exposure accordingly. If there is a realistic concern about the spread of COVID-19 in its workplace, the employer may ask the potentially exposed employees to stay home until the incubation period (according to the CDC) has passed. Please see the above question concerning how to address employees who may have been exposed.
Is there any duty for an employer to report potential COVID-19 cases?
Absent additional state legislation, existing state reporting requirements for infectious diseases apply to healthcare providers only and not to employers.
State health agencies and media outlets may seek voluntary information from larger employers about the number of employees infected. With the exception of employer-sponsored self-insured health benefit plans, the regulations of the Health Insurance Portability and Accountability Act (HIPAA) that protect individually identifiable health information do not apply to employers. However, employers should still exercise diligence in sharing information about specific employee cases, both internally and externally. For affected employers that wish to disclose information, such employers may consider providing aggregate counts in response to requests from state agencies or media outlets (eg, 14 of our employees have been infected by COVID-19).
What can an employer do if an employee has no symptoms of illness and its workplace has been symptom free, but the employee has refused to come to work because of concerns relating to COVID-19 and being in large groups generally?
Employers should listen to employee concerns and, if they are genuine, explore alternative working arrangements with them. As discussed above, to the extent possible, employers should encourage flexible or remote work options, particularly for exempt employees. Where remote work is not an option, employees may be given the option to use their PTO or take unpaid non-medical leave from the workplace.
However, if an employee refuses to work or use these alternative options and they have no signs of illness or respiratory distress, the employer will have to consider the proper response. Generally speaking, the employee should be told to report to work.
Employers should keep in mind that accommodations made for one employee may set a precedent regarding how other employees should be managed in similar situations.
How should an employer handle an increase in employee absences relating to potential COVID-19 or suspected illness?
To account for higher rates of short and long-term absences from the workplace, employers may offer current employees additional work or overtime opportunities or consider retaining temporary workers in the interim. Employers who use temporary workers should understand that in many jurisdictions, the company may be considered a joint employer with the temporary services provider. Counsel should be engaged to address joint employment considerations when contracting with a temporary services provider.
What is an employer's obligation if an employee cannot come to work because schools are closed and they need to care for their children?
No federal law provides protected time off from work for employees who are unable to obtain childcare, except as relating to military active duty. State and local law may provide employees with some protected time off for this purpose. Employers should consult with counsel to determine whether local or state law may govern this issue.
Absent a legal requirement to do so, employers may consider providing employees with additional flexibility during this time to permit employees to address emergency and unexpected events that affect the employee's ability to secure childcare. Such time off could be provided paid or unpaid.
Does an employer's response to COVID-19 implicate any privacy laws or regulations?
Maybe – privacy rights are complicated matters for employers and a privacy lawyer should be consulted regarding those issues.
For further information on this topic please contact Michelle Strowhiro or Lindsay Ditlow at McDermott Will & Emery by telephone (+1 312 372 2000) or email (email@example.com or firstname.lastname@example.org).The McDermott Will & Emery website can be accessed at www.mwe.com.
(1) For further information please see McDermott Will & Emery's Coronavirus Resource Centre.
Carole Spink, partner, assisted in the preparation of this article.
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