The news is dominated with accounts of the spreading disease, travel restrictions, and quarantines. Thus, employees having questions about the coronavirus/COVID-19 and whether they risk exposure at work is to be expected. Furthermore, understanding how to respond to the issues raised by the Coronavirus is critical. We suggest developing a game plan should include both safety considerations and how to maintain legal compliance while keeping everyone at work safe.
From a safety perspective, employers may wonder whether they should keep employees away from work if they have been exposed to the coronavirus. The answer is clearly yes. Employers can keep employees off work either because of a public health quarantine or based on the employer’s assessment of the safety concerns of the business. Also, employers are within their rights to send employees home who come to work with active symptoms.
Additionally, implementing a policy on office cleaning and hand washing can limit the spread of viruses. The type of program your organization may need depends on the circumstance, including the particularity of the industry. Health care, child care, and food preparation all have different rules that might not be the same for other industries.
Moreover, in circumstances where an employer asks an employee to stay home because of exposure to something that may become a pandemic, it does not seem fair to count the incident as absenteeism. The employee is being asked to stay home by you, the employer, or by a mandatory requirement from public health authorities. It would be difficult to justify a termination based on absenteeism in that circumstance.
As to maintaining legal compliance and anticipating liability, there are a number of federal laws that may be implicated as employers address issues related to the coronavirus. Employers have a general obligation to provide a safe workplace under the Occupational Safety and Health Act’s (OSH Act) General Duty Clause. In some circumstances, such as with healthcare workers, exposure to illnesses is an inherent job risk, but the employer still has an obligation to minimize the danger. If part of an employee’s job is travel and there is an existing pandemic, an employer could face issues when sending employees into viral hot zones. Any U.S. employer currently sending someone to China has a greater risk of being held responsible for exposure than an employer that chooses to delay the travel.
In situations where the employer is covered by the Family and Medical Leave Act (FMLA) and the employee is ill and otherwise meets the FLMA’s requirements, the individual is entitled to leave under the Act. In the case of the coronavirus, it is likely that the disease would be considered a serious health condition under the FMLA. If a spouse, child, or parent is exposed and the employee is needed to provide care for the person, the employee also would qualify for FMLA protection. However, an employee that is quarantined because of potential exposure, however, likely will not qualify for protection under the FMLA.
Yet another legal area that could challenge businesses in this context is compliance with wage and hour law under the Fair Labor Standards Act (FLSA). Business and personal travel issues are of particular concern. Should a nonexempt employee on a business trip be quarantined, the overnight travel rules will apply making the employer being responsible for providing payment for wages that cut across the workday and for all time the person is in fact working. For exempt employees, if the absence is occasioned by the employer, your company is liable for the individual’s ongoing wages and may not deduct from actual salary. Paid time off (PTO) can be deducted but only until it is exhausted. If employees are on a personal trip and quarantined, they are not typically entitled to wages regardless of their exemption status. However, employers should note the rules for partial-day absences for exempt employees still apply.
Despite these general compliance guidelines, employers may run into situations where employees who refuse to come to work because they are afraid of exposure. The employers’ response in these circumstances depends on the nature of the potential risk and exposure. There have been instances during the SARS (or Severe Acute Respiratory Syndrome) crisis, or more recently with measles outbreaks, when employees have refused to travel even though their mobility was essential to the job.
An employee’s complaint about workplace safety could kick in the OSH Act’s whistleblower protection requirements. However, if the fear is more generalized, simply based on worries relating to media coverage or more general pandemic questions, the employee’s concerns may not be objective. If in these circumstances an employer can show that there is no substantial risk and that steps have been taken to mitigate and respond to the danger, whistleblower protection is less likely.
Ultimately, it is important for employers to review their policies to make sure to inform employees that they must tell you of exposure to any highly communicable disease. Have policies in place indicating that employers will send employees home who are exhibiting symptoms, including fevers over 100 degrees, active diarrhea, vomiting, or who have been traveling in virus hotspots.
Also, remember that scientific understanding of the virus is increasing, and protocols from the Centers for Disease Control and Prevention (CDC) may change. Continue to consult with your attorney on procedures related to traveling employees or those who may be subject to quarantine as the CDC continues to assess the risk.
