By John Rather
Originally published: March 17, 2020
Last updated: March 31, 2020
In light of the tremendous consequences to business and individuals associated with the growth of the coronavirus COVID-19 (“Coronavirus”), Neider & Boucher, S.C. has recently published numerous materials which can easily be found on our website’s COVID Response Resource List. Because the lessons learned by some could be invaluable for others, we will continue to try to address and share those lessons with our clients and our community.
These FAQs provide an overview of common questions raised by employers related to the pandemic. These FAQs apply to general employers. Different considerations may apply to employers of healthcare providers or other specialized industries. Moreover, these FAQs address general employment law considerations as applicable to the Coronavirus pandemic. For information regarding how the Families First Coronavirus Response Act (FFCRA) may impact employment considerations, see this article. If you have questions about whether you can take certain steps or how best to implement those steps, call us, we’re here to help.
- What is the “Coronavirus”? Is it the same as COVID-19?
Coronavirus is a class of viruses that includes the common cold and flu. A novel coronavirus is a new coronavirus that has not been previously identified in humans. COVID-19 is the name given by the World Health Organization (“WHO”) to the specific strain of coronavirus responsible for the 2019-2020 pandemic currently causing major disruptions to day-to-day life in America and across the world. These FAQs will use the term “Coronavirus” because that is the term most used in everyday discussions.
- What is a pandemic? Do employment laws apply differently during a pandemic?
A “pandemic” is an outbreak of disease that occurs suddenly in numbers significantly greater than normal on a global scale. For reference, there have been 4 pandemics in the last century, including the 1918 “Spanish Flu.” The 2009 H1N1 outbreak was a pandemic, but the 2003 SARS outbreak never reached pandemic level. The 2019-2020 Coronavirus outbreak was declared a pandemic by the WHO on March 11, 2020.
According to the EEOC, the existence of a pandemic that is more severe than the seasonal flu expands an employer’s right to safeguard its workplace. The answers below are based on the existence of a pandemic such as the 2019-2020 Coronavirus outbreak. Some answers may be different in absence of a declared pandemic.
- What are an employer’s obligations regarding providing a workplace safe from disease such as Coronavirus?
OSHA requires employers to provide employees with a workplace free from recognized hazards likely to cause death or serious physical harm. Employers should closely follow the latest recommendations from the CDC and local public health agencies in order to maintain the safety of employees. OSHA has published guidelines to help employers prepare workplaces for Coronavirus, available here.
Public health organizations recommend that companies bar employees or visitors from coming to the workplace for a period 14 days after a “medium” or “high-risk” exposure to the virus — generally meaning having been in close contact with someone who is known to be infected, or having traveled from a high-risk region. (For more, see the CDC’s “Interim Guidance for Risk Assessment.”)
DEALING WITH SICK OR POTENTIALLY SICK EMPLOYEES
- Under what circumstances should an employer send an employee home or instruct an employee to self-quarantine?
Employers should send employees home and/or instruct employees to stay home who:
- Have tested positive for Coronavirus
- Exhibit symptoms consistent with Coronavirus
- Have had close contact with an individual (such as a member of the same household) who has tested positive for Coronavirus
- Have recently returned from an area deemed restricted by the CDC.
Employers should strongly consider sending employees home and/or instructing employees to stay home who:
- Have had close contact (such as a member of the same household) with an individual who has exhibited symptoms consistent with Coronavirus
- Have recently returned from an area of increased risk according to the CDC
- Worked closely with an employee who meets any of the above.
If the CDC or local public health officials recommend that people who visit specified locations remain at home after traveling, an employer may ask an employee what locations they have traveled to, even if the travel was for personal reasons, and may follow the recommendations of the CDC and local public health officials regarding possible quarantine.
- How long should employees who meet the employer’s criteria be told to stay home?
Generally any such employee, as well as any employee with whom he or she had close contact, should be sent home and not permitted to return to the workplace for the amount of time recommended by the CDC in order to prevent further spread. Ask the employee to identify all individuals who worked in close proximity (three to six feet) with them in the previous 14 days.
- Should employers notify other employees if an employee has tested positive for Coronavirus?
Yes, but do not identify the employee. Employers have an obligation to notify employees of facts or circumstances that could impact their health or safety. That can be balanced with the infected employee’s privacy interests by not identifying the specific employee. In many instances other employees may be able to infer who is the infected employee, but that information should not come from the employer. While the identity of the subject employee should not be revealed, transparency with employees is recommended, including communicating that an employee is asymptomatic but you are acting out of an abundance of caution and based on recommendations of the CDC and public health officials.
- An employee has been exposed to Coronavirus but only found out after they had interacted with clients and customers. What should we do?
Take the same precautions as noted above with respect to employees, treating the situation as if it is a confirmed case for purpose of determining what further steps are necessary. While employers are not under a specific legal duty to notify customers or clients of such an occurrence, businesses are permitted, and likely should, notify third parties that came into contact with the employee, again avoiding identifying the specific employee.
- If an employer learns or suspects that an employee has Coronavirus, do they have a responsibility to report that information to the CDC, a local public health agency or any other agency?
OSHA has deemed Coronavirus a recordable illness if an employee is infected as a result of performing their work-related duties. This means employers must record cases of Coronavirus, but only if all of the following are met: (1) the case is a confirmed case of Coronavirus; (2) the case is work-related; and (3) the case involves one or more of the general recording criteria set by OSHA (e.g. medical treatment beyond first-aid, days away from work).
- Can an employer ask an employee why he or she has been absent from work if the employer suspects it is due to Coronavirus?
Yes. Asking why an individual did not report to work is generally not a disability-related inquiry. During a pandemic, such as Coronavirus, employers also are permitted to ask what symptoms the employee is experiencing and, if Coronavirus is suspected, who within the workplace they have had close contact with in the last 14 days.
- Can employers prohibit employees from traveling to a non-restricted area on their personal time?
Employers generally cannot prohibit employees from engaging in lawful activity, such as personal travel. However, employers can strongly recommend employees refrain from unessential travel, especially to high risk areas as identified by the CDC or local public health officials. Employers also can ask employees to provide notice of any travel, business or personal, outside the county or state and can require that employees returning from high risk areas self-quarantine for amount of time recommended by the CDC and local public health officials (currently 14 days).
- Can an employee refuse to come to work due to fear of becoming infected? Can they refuse to engage in work-related travel?
Employees are only entitled to refuse to work if they believe they are in imminent danger. OSHA defines “imminent danger” as “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.” 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. Most work conditions in the United States do not meet these criteria and while Coronavirus is a serious pandemic, its general risk of death or serious physical harm does not appear to rise to this level either. If a workplace meets these criteria, the employer should consider closing the workplace. Employers should follow the CDC and OSHA’s guidelines for workplaces as noted above. If an employee feels coming to work puts them at too high of risk of exposure, they should consider utilizing vacation or other paid or unpaid time off. Employers may, but in most cases are not required, to allow employees to work remotely if they have such ability. See below for further information on remote work.
- Are employers required to allow employees to wear a protective mask or respirator?
Generally no. Unless a mask or respirator is required as part of job duties to provide for employees’ safety, it is within employers’ discretion whether to allow employees to wear masks or respirators. The CDC and public health officials have repeatedly stated that wearing a mask or respirator is not an effective or appropriate precaution to prevent contracting or spreading Coronavirus. As such, there is no recognized safety risk that warrants such devices. The only other exception may be if an employee has a disability under the ADA, for which wearing a mask is a reasonable accommodation.
- Can employers require employees submit to a medical exam if they exhibit possible symptoms of Coronavirus or have returned from places of higher risk?
Employers generally cannot require medical examinations of asymptomatic employees if an outbreak is akin to a seasonal flu. However, given that the WHO has declared Coronavirus a global pandemic and multiple states, including Wisconsin, have declared a statewide emergency, employers who have objective evidence and a reasonable belief that an employee has been infected with or exposed to Coronavirus could require the employee submit to a medical examination to determine whether they are infected. However, employers should review the latest guidance from the CDC and local public health officials as to when a medical examination is recommended. A policy of requiring any employee exhibiting symptoms to undergo a medical examination could overburden local health care providers and is not currently recommended by the CDC.
- Can employers require employees to obtain medical certification that they are safe to return to work after a quarantine or exposure?
Yes, though for the reasons discussed above employers should review the latest guidance from the CDC and local public health officials as to when and what to require. The CDC recommends against requiring employees to provide a doctor’s note to justify an absence for Coronavirus-related reasons.
- Can employers ask employees who do not have symptoms to disclose whether they have a medical condition that puts them at higher risk of Coronavirus-related complications? Can they request or require such employees to work remotely for their own protection?
While employers generally cannot ask such questions without running afoul of the ADA, in the case of a serious pandemic such as Coronavirus the answer is more nuanced. Regardless, instead of asking employees to reveal potentially relevant medical conditions, the better course of action is to provide all employees with information about what groups are considered by the CDC to be at higher risk of complications from Coronavirus and allow and/or encourage all employees who believe they are at higher risk to take advantage of additional accommodations, such as working remotely. Employers should not prohibit employees from coming to work based solely on the fact they are in a higher risk category as doing so could constitute discrimination based on disability or protected class (e.g. age).
If an employee voluntarily discloses that he or she has a specific medical condition or disability that puts him or her at increased risk of Coronavirus-related complications, the employer must keep this information confidential. The employer may ask the employee to describe the type of assistance he or she thinks will be needed (e.g. remote work).
- Can employers survey employees to determine who may be unavailable to work in the event the pandemic begins to affect the local community?
Yes, as long as in so doing they do not ask employees to reveal disabilities or other private information. An inquiry is not disability-related if it is designed to identify potential non-medical reasons for absence during a pandemic (e.g., curtailed public transportation) on an equal footing with medical reasons (e.g., chronic illnesses that increase the risk of complications). The inquiry should be structured so that the employee gives one answer of “yes” or “no” to the whole question without specifying the factor(s) that apply to him. The answer need not be given anonymously.
Below is a sample survey provided by the EEOC:
- Should employers prohibit handshakes and other physical embraces in the workplace?
The CDC recommends that all individuals limit to the extent possible physical contact with others and maintain adequate separation to reduce occurrences of community spread. Employers should provide specific guidance to employees of its policy during the outbreak to relieve employees of the concern over what is appropriate and whether they must choose between personal safety and career. Employers should consider placing a sign in the entryway or reception area notifying visitors of its policy regarding handshakes, etc. Elbow bumps, bows and waves are common alternatives.
- Can an employer require its employees to adopt infection-control practices, such as regular hand washing, at the workplace?
Yes. Requiring infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal, does not implicate the ADA and is strongly recommended by the CDC and local public health officials. Though generally expressed as encouragement, employers are permitted to make such practices a work rule, the failure to follow which could result in discipline.
As hand washing is one of the most effective defenses against Coronavirus, employers should make sure employees have ready access to washing facilities that kept well stocked with soap and paper towels (some evidence suggests paper towel drying is less likely to spread viruses than air dryers). Alcohol-based hand sanitizers and sanitizing wipes should be distributed throughout the workplace, and all frequently touched surfaces such as workstations, keyboards, countertops and doorknobs should be routinely cleaned. General cleaning should be increased throughout work areas. For further information, see the CDC’s FAQs.
- Is contraction of Coronavirus itself a disability under the ADA?
Generally no, because in most cases Coronavirus is a transitory condition. However, if an employee has an underlying condition that is exacerbated by Coronavirus such that it substantially limits the employee’s ability to engage in one or more major life activities (such as breathing), the ADA could be implicated. If an employer “regards” an employee with Coronavirus as being disabled, that also could trigger ADA protection.
- Can employers require those employees capable of working remotely do so?
Yes. Employers can require those employees capable of working remotely to do so, or to take PTO if they cannot. Remote work policies or allowances also must not be applied in a discriminatory manner. For example, employers can instruct all employees returning from high risk areas or who have been exposed to someone exhibiting symptoms consistent with Coronavirus to work remotely while self-quarantining, but it would be unlawful to require all workers over the age of 60 to work from home, even if the intention is to protect a group of individuals deemed at higher risk by the CDC.
While many jobs (retail, manufacturing, health care) require people to be physically present, work, including meetings, that can be done remotely should be encouraged if coming to work or traveling risks exposure to the virus. Videoconferencing, for instance, is a good alternative to risky face-to-face meetings. Employers also should consider reducing or eliminating group meetings or gatherings for the length of time recommended by the CDC and local health officials.
- Are employers required to allow employees to work remotely if requested during a pandemic?
Employers are generally not required to allow employees to work remotely. However, the EEOC has stated that employees with disabilities that put them at a higher risk of complications from Coronavirus may request to work remotely as a reasonable accommodation to reduce their chances of infection.
Remote work is an increasingly common option for more and more employees and presents a viable way to reduce the impact of self-quarantines or threats of community spread in the workplace. An increasing number of companies are encouraging some or all of its workers to work remotely during the outbreak.
- Can hourly employees work remotely?
Yes. However, remote work for hourly employees can present different challenges because hourly employees are paid only for the time actually spent working. Hourly employees permitted or instructed to work remotely should be directed to fully comply with all policies regarding timekeeping, overtime approval and meal and rest breaks.
WAGE AND VACATION USE
The answers below are based on traditional wage and hour law and considerations and do not take into account new requirements and options provides in the recently passed Families First Coronavirus Response Act (FFCRA) and Coronavirus Aid, Relief and Economic Security (CARES) Act. For more information about the FFCRA, see this article. For more information about the CARES Act, see this article.
- Are employers required to continue paying employees who are unable to work for Coronavirus-related reasons?
Possible Coronavirus-related reasons that an employee may not be able to work include:
- Being sent home by their employer
- Being too sick to come to work
- Observing an employer’s request to stay home if they are sick or exhibiting symptoms of Coronavirus
- Observing employer-required quarantine
- Observing quarantine as requested or required by the CDC public health officials
Hourly Employees: Hourly, or “non-exempt,” employees are only paid for time actually worked. Therefore, absent a legal obligation to keep paying employees due to, for example, an employment contract, collective bargaining agreement or its own policies or practices, employers are not required to pay hourly employees for time missed from work for Coronavirus-related reasons.
Salaried Employees: Employers must pay salaried employees their entire weekly wage for any week in which the employee performs any work (including minimal tasks such as checking email). Employers are not required to pay salaried employees for any weeks in which they perform no work for the entire week. However, as with hourly employees, this is subject to any legal obligation to keep paying employees under, for example, an employment contract, collective bargaining agreement or its own policies or practices.
Employees may use paid time off (paid sick time, paid vacation time, etc.) as a means of compensation for otherwise uncompensated periods pursuant to the employer’s policies and practices. In addition, many employers are choosing to provide additional paid time off for Coronavirus-related absences.
Update: 3/30/20: The FFCRA requires employers with less than 500 employees to provide up to 80 hours of emergency paid sick leave for certain Coronavirus-related reasons as well as an expanded form of FMLA leave to care for children whose school, daycare or normal childcare is unavailable due to Coronavirus. See this article for more information.
- Can employers require employees to use paid time off benefits (such as sick time, vacation time, banked sick leave, etc.) (collectively “PTO”) to cover Coronavirus-related absences? Does it matter if the cause of the missed time is based on the decision of the employee, the employer or ordered by public health officials?
Employer can require employees who miss time from work due to Coronavirus, whether by decision or direction of the employee, employer or public health officials, to use available PTO for such time if consistent with the employer’s bona fide plan, policy or practice of providing compensation for time off (i.e. a sick leave or vacation policy). This is true both for salary and hourly employees. Employers may amend or make exceptions to their policies to accommodate the unique challenges presented by the Coronavirus pandemic as long as they do so in a nondiscriminatory manner.
Update: 3/30/20: Employees of covered employers are entitled to up to 80 hours of emergency paid sick leave for certain Coronavirus-related reasons, but not all reasons will qualify. Under guidance published by the Department of Labor, employers cannot require employees to use PTO in lieu of or to supplement emergency paid sick leave and enhanced FMLA using PTO, but may allow employees to do so. See this article for more information.
- Can an employer require employees to “go negative” by using PTO they have not yet accrued?
Generally yes, if consistent with the employers’ PTO policies and practices. Some employers also are making exceptions to their policies to allow employees to “go negative” so they have additional PTO to cover Coronavirus-related absences.
Update: 3/30/20: Under guidance published by the Department of Labor, employers cannot require employees to use PTO in lieu of or to supplement emergency paid sick leave or enhanced FMLA using PTO, but may allow employees to do so. See this article for more information.
- Are employers required to pay employees if they close the office due to Coronavirus? Does it matter if the closure is precautionary, due to a suspected or confirmed infection or ordered by public officials?
When an office is closed, employees are deemed able to work but with no work available. Because hourly employees are only paid for time actually worked, absent use of PTO benefits, employers are not required to pay hourly workers for time missed due to an office closure. For salaried employees, if the closure is for less than a full week and the employee did any work in that week, whether while the office was open or while working from home during closure, the employer must pay the salaried employee their entire weekly salary. If the office is closed the entire week and the employee is instructed to refrain from doing any work for the entire week (including checking email), then the employer is not required to pay a salaried employee their weekly salary, except for payment of compensation due to use of PTO benefits pursuant to its bona fide policy.
Employers can require use of PTO pursuant to its bona fide policy, but they cannot withhold compensation if a salaried employee exhausts available PTO or is not yet eligible for such benefits. Of note, employers also can require employees to use PTO if available. However, employers cannot require employees to “go negative” in their PTO due to an office closure.
Employers that make the choice to temporarily close their office should be clear with employees about expectations during the closure. If the employer’s intention is to not pay employees (absent use of available PTO), employers should be very clear that employees are prohibited from doing any work, including remote work and including minimal tasks like checking email. If employers close the office but intend for those employees that can work remotely to do so, those expectations should be clearly communicated as well, including expectations regarding availability, hours, equipment, time-recording, etc.
Update: 3/30/20: The FFCRA requires employers with less than 500 employees to provide up to 80 hours of emergency paid sick leave for certain Coronavirus-related reasons as well as an expanded form of FMLA leave to care for children whose school, daycare or normal childcare is unavailable due to Coronavirus. An office closure, even if due to a government order such as Wisconsin’s “Safer At Home” Order, generally do not result in an obligation to pay emergency paid sick leave or enhanced FMLA leave under the FFCRA. See this article for more information.
- Should employers provide some form of additional PTO benefit for those forced to miss work due to Coronavirus? Will the government reimburse the employee or employer for time lost?
Whether to make exceptions or provide additional PTO for those impacted by Coronavirus is up to each employer. Employers should consider the impact on employee morale and public relations of providing or not providing flexibility or additional benefits. Many employers have chosen to continue to pay employees who are absent from work for Coronavirus-related reasons, including office closures or to make exceptions or additions to their PTO use policies. Employers must ensure that any flexibility or additional benefits are provided in a uniform, and not discriminatory, manner.
One important consideration may be the possible impact requiring employees to use PTO or take unpaid time for time missed due to Coronavirus may have on employees’ willingness to comply with employers’ requests to stay home if they exhibit symptoms or are at higher risk of having been exposed to Coronavirus. Employees who will have to use PTO or take unpaid time are more likely to hide or underreport their symptoms, which could cause larger problems for employers and put a larger portion of the workforce and the public at risk.
- Is leave taken for Coronavirus-related reasons protected under the Family Medical Leave Act (FMLA)?
Ordinarily, viruses such as the common cold or flu are not serious health conditions under the FMLA. However, more severe cases that require inpatient care or continuing treatment may qualify. While not every case of Coronavirus will result in FMLA-protected leave, employers should closely monitor employees’ progress and if there is reason to believe a particular employee’s infection qualifies, it should provide the employee with the proper notice and seek additional information to confirm their status. Remember too that an employee can use FMLA leave due to their own serious health condition and to care for a family member with a serious health condition.
Update: 3/30/20: Enhanced FMLA under the FFCRA taken to care for a child whose school or childcare is unavailable due to Coronavirus is protected similar to traditional FMLA leave.
- Can contraction of Coronavirus at work result in a worker’s compensation claim?
It depends. If the employee is a health care worker or first responder, the answer is likely yes (subject to variations in state law). For other categories of employees, a compensable workers’ compensation claim is possible, but will depend heavily on specific facts, including the reliability of the conclusion that the employee contracted Coronavirus at work. The workers’ compensation system is a no-fault system, meaning the employee need only prove that the injury occurred at work and was proximately caused by their employment. Even if an employer takes all of the right steps to protect employees from exposure, a compensable claim may exist where an employee can show that they contracted Coronavirus after an exposure, the exposure was peculiar to the work, and there are no alternative means of exposure demonstrated.