IMPORTANT INFORMATION & FAQ ON CORONAVIRUS AND WORKPLACE RESPONSE

The coronavirus is thought to spread mainly from person-to-person, generally those within 6-feet of us. It may also be transmitted by touching an infected surface. Taking steps toward prevention is important to stopping the spread of COVID-19, the disease caused by the coronavirus, and the best way to prevent illness is to avoid being exposed.

As of this post, congress is considering a bill which may include free coverage for coronavirus testing, extended unemployment insurance, paid sick leave and expanded food assistance. We are monitoring this evolving response and how these provisions may play out in practice with updates to follow.

At this time, there are no legal directives, related to Coronavirus, that apply generally to restrict the business operations of private-sector employers. Rather, there are government-issued guidelines and recommendations that place the burden on employers to adopt their own common-sense measures, within existing legal rules. For example:

• The Federal Department of Labor and OSHA have issued guidance on how “Preparing Workplaces for COVID-19”

• The EEOC has issued guidance on employee protections under the ADA in the event of a pandemic

That said, it has been reported that Federal and state governments are now considering emergency orders that would regulate and limit operations of private-sector employers, including directives that would require temporary closures of some workplaces. It would be prudent to consider and plan for this potential eventuality.

Recommended strategies for employers to use now:

• Actively encourage sick employees to stay home

• Separate sick employees

• Emphasize staying home when sick, respiratory etiquette and hand hygiene by all employees

• Perform routine environmental cleaning

• Advise employees before traveling to take additional steps

Additional Measures in Response to Currently Occurring Sporadic Importations of the COVID-19:

Employees who are well but who have a sick family member at home with COVID-19 should notify their supervisor and refer to CDC guidance for how to conduct a risk assessment of their potential exposure.

If an employee is confirmed to have COVID-19, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the Americans with Disabilities Act (ADA). Employees exposed to a co-worker with confirmed COVID-19 should refer to CDC guidance for how to conduct a risk assessment of their potential exposure.

Massachusetts employers can contact the Massachusetts state department of Public Health if there are questions about conducting a risk assessment:

Bureau of Infectious Disease and Laboratory Sciences: Infectious Disease Division, 617-983-6550; urgent calls and infectious disease reporting 617-983-6800.

Employees may also be expressing concern about family members or their own health status. Many Long Term Disability (LTD) policies have Employee Assistance Plan (EAP) components that can be valuable resources especially during unsettled times.

Frequently Asked Questions

If an employee shows up to work with coronavirus-like symptoms, can I require them to go home?

Yes. The CDC recommends that employees who arrive at work showing coronavirus-like symptoms be sent home immediately. Moreover, pursuant to the federal Occupational Safety and Health Act, employers have a general duty to furnish each worker with “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.” Sending an employee home who is demonstrating coronavirus-like symptoms would almost certainly fall under the umbrella of an employer’s duty to furnish a safe workplace.

Similarly, the Equal Employment Opportunity Commission (EEOC) has advised that sending an employee home who is demonstrating symptoms of an illness would be permissible because the illness, if mild, would not constitute a disability under the ADA. However, even if the illness was severe enough, such that it would constitute a disability under the ADA, sending an employee home would nonetheless be justified under a direct threat to the workplace analysis.

Can I require an employee who has been out of the office as a result of the coronavirus to provide a doctor’s note certifying that the employee is fit to return to work?

Yes, requiring an employee to submit a doctor’s note clearing the employee to return to work would be job-related and consistent with business necessity because having an employee in the workplace not fully recovered from the coronavirus would pose a direct threat to the workplace. As such requiring such a doctor’s note would not run afoul of the ADA or state-law statutory equivalent.

Employers are always free to go above and beyond legal requirements and, thereby, elect to pay wages for employees either during a company-wide shutdown or for employees who must remain out of work on self-quarantine, due to showing signs of illness, or when mandated by the employer as a precautionary measure. Certainly, such generosity on the part of an employer will be well received and will go a long way toward the preservation of positive morale.

What should I do if an employee fears coming to work due to possible exposure in the workplace?

Creating and implementing consistent plans for preventing and addressing potential workplace exposure and communicating such measures clearly and effectively will go a long way to reducing employee fears of workplace exposure. Employers should assess the specific risk in the workplace on a case-by-case basis. Currently, federal guidance is focused on encouraging those who are sick (or may have been exposed to the coronavirus) to stay home. In the event of a more particularized risk, such as an actual case of exposure to the coronavirus in the workplace, employers may wish to encourage (or require) working from home or offer more lenient work from home options to its employees.

Can an employee refuse to come to work because of fear of infection?

Employees are only entitled to refuse to work if they believe they are in imminent danger. Section 13(a) of the Occupational Safety and Health Act (OSH Act) defines “imminent danger” to include “any conditions or practices in any place of employment which are such that a danger exists which can 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 by this Act.” OSHA discusses imminent danger as where there is “threat of death or serious physical harm,” or “a reasonable expectation that toxic substances or other health hazards are present, and exposure to them will shorten life or cause substantial reduction in physical or mental efficiency.”

The threat must be immediate or imminent, which means that an employee must believe that death or serious physical harm could occur within a short time, for example, requiring travel to China or to work with patients in a medical setting without personal protective equipment at this time may rise to this threshold. Most work conditions in the United States, however, do not meet the elements required for an employee to refuse to work. Once again, this guidance is general, and employers must determine when this unusual state exists in your workplace before determining whether it is permissible for employees to refuse to work.

Does family and medical leave apply to this situation?

Generally, employees are not entitled to take FMLA to stay at home to avoid getting sick. As with many employment laws, the worst thing an employer (or as is often the case, an untrained supervisor) can do at times like this is to reject immediately an unorthodox leave request before the facts are in. When in doubt, the wisest approach is to work with Human Resources to ensure legal compliance, thereby minimizing exposure to costly litigation.

If one of my employees is traveling, may I ask him/her where they are going or where they have been?

Yes. Employers are permitted to inquire about the travel destinations of their employees, even if travel is personal. To the extent an employer begins this practice of inquiring about employee travel, it should do so uniformly to avoid potential claims of disparate treatment based on membership in a protected class.

May I instruct employees who have been to a region where coronavirus is prevalent, or who otherwise believe they may have been exposed, to stay home?

Yes. Employers may instruct employees who have traveled to a location where coronavirus is prevalent, or who believe they may have been exposed to coronavirus, to stay home. Employers must, however, be sure that they apply this practice uniformly across the workforce.

If I instruct an employee not to physically come into the office, do I have to pay him/her when he/she is at home?

The answer here depends upon the employee’s FLSA status (i.e., exempt/non-exempt) and whether the employee is, in fact, working while they are at home.

If a non-exempt employee is not performing any work while home, he/she is not entitled to any wages. If, however, a non-exempt employee is working at home, the employee should be instructed to keep track of, and be paid for, all hours worked. In this situation, the best practice is to have employees email their hours worked each day to their supervisor. In addition, although employees are not physically in the office, they are nonetheless entitled to an uninterrupted thirty (30) minute meal break for every six consecutive hours they work.

If I require an employee to stay home, or the employee voluntarily chooses to self-quarantine, is the employee entitled to use his/her earned sick time?

The Massachusetts Earned Sick Time Law allows employees to use earned sick time for several reasons including, but not limited to, “car[ing] for the employee’s own physical or mental illness, injury, or other medical condition that requires home, preventative, or professional care” and/or “car[ing] for a child, parent, spouse, or parent of a spouse who is suffering from a physical or mental illness, injury, or other medical condition that requires home, preventative or professional care.”

Thus, if, while at home, the employee is not sick and is not caring for a sick family member, he/she is not entitled to use earned sick time (although employers may decide to relax their policy requirements during this time). Notwithstanding the foregoing, there is an argument that such time away from the office may constitute preventative care and, thus, entitle the employee to use his/her earned sick time. Separate and apart from an analysis under the Earned Sick Time Law, if the employee otherwise has banked sick time, the employer could certainly allow the use of such sick time even if the employee is not symptomatic.

Of course, if the employee and/or a family member are sick with the coronavirus, the employee is entitled to use his/her earned sick time.

If an employee calls out sick, can I ask if they are experiencing symptoms of the coronavirus?

The Americans with Disabilities Act (ADA) permits employers to ask employees if they are experiencing coronavirus-like symptoms, such as fever, cough, and shortness of breath. Employers who keep records of this inquiry must ensure that the information is kept confidential and separate and apart from an employee’s personnel file.

Employers should also be aware that, under the Massachusetts Earned Sick Time Law, they may ask for written documentation, like a doctor’s note, only in limited circumstances, including, but not limited to, when the employee is absent from work for more than 24 consecutively-scheduled work hours and/or the employee is absent for three consecutively-scheduled work days. In requesting written documentation, an employer should not require the employee to disclose the details of the medical condition.

If my company is covered by the federal Family and Medical Leave Act (FMLA), are employees entitled to use FMLA leave if they are required to stay home?

The FMLA allows an employee of a covered employer to take an unpaid leave of absence for up to twelve weeks to care for the employee’s own serious health condition and/or to care for a family member with a serious health condition. Generally, an employee who is forced to stay home or who voluntarily chooses to self-quarantine as a precaution would not be eligible for FMLA leave.

However, because the coronavirus is very likely to qualify as a serious health condition under the FMLA, if an employee and/or the employee’s family member contracts the virus, the employee will likely be eligible for FMLA leave.

If I force an employee to stay home, or an employee chooses to self-quarantine, can I require the employee to use his/her paid time off?

Employers must follow their paid time off policies as written. Therefore, an employer may require its employees to use available paid time off if permitted by its policy.

To the extent that an employer has a paid time off policy that lumps vacation and sick time together, and the employee’s absence does not qualify as an allowable purpose under the Earned Sick Time Law, the employer must be careful to ensure that its employees are nonetheless able to use up to at least forty (40) hours of the paid time off per year for the purposes allowed under the statute.

What do I do if my supervisee has no sick or vacation time available?

We recommend Supervisors work with staff to be flexible during this public health crisis. Individual plans should be brainstormed between with the employee and signed off by a company director (i.e. flexible work hours and days, work from home when feasible, etc.).

If I have to reduce hours, are my employees eligible for Partial Unemployment?

State law determines eligibility for unemployment benefits, including partial unemployment benefits. Generally speaking, however, an employee will be eligible for benefits if all of the following are true:

• You are underemployed, meaning that you are working part time through no fault of your own. For example, if your company cut the hours of everyone in your department in order to avoid layoffs, you would likely meet this eligibility requirement. You may also be eligible if you lost your full-time job and have only been able to find occasional or limited part-time work. Depending on your state’s rules, you may be eligible for partial benefits if you had two part-time jobs and lost one of them. However, regardless of how your state determines eligibility for partial benefits, you will not be eligible if you could be working more. For example, if you voluntarily chose to reduce your hours or work part time so you could take care of your children, you would not be eligible.

• You meet your state’s minimum earnings or minimum hours worked requirements. These are the same whether you apply for regular or partial unemployment benefits. (For information on these requirements, see How Long Must I Be Employed Before Being Eligible for Unemployment?)

• You are able and available to work more. In other words, if your hours are cut to ten per week, you won’t be eligible if you decide to go back to school full time and wouldn’t be able to work more hours.

• The Commonwealth of Massachusetts has a benefits calculator.

Additionally The U.S. Labor Department has given states flexibility to amend their laws to provide unemployment benefits in events related to the coronavirus in an effort to limit the damage on the economy from the pandemic.

States can pay benefits in cases of temporary unemployment because the coronavirus is preventing employees from coming to work. Individuals quarantined with the expectation of returning to work after the quarantine is over can also receive unemployment benefits as well as those leaving employment due to a risk of exposure or infection or to care for a family member.

#COVID19 #CORONAVIRUS #OSHA #ADA #EEOC