12 Questions Employers Are Asking About COVID-19

The coronavirus disease 2019 (COVID-19) has been designated as a global pandemic, and President Trump has declared a national state of emergency. Each day brings more questions and often conflicting guidance from myriad agencies dealing with the numerous ramifications in workplaces. Infections are spreading to new parts of the world and the United States, and the number of cases and deaths continues to rise worldwide.

This map offers an up-to-date look at the global spread of COVID-19.

Because the disease has sustained, person-to-person spread—also known as community spread—the Centers for Disease Control and Prevention (CDC) is encouraging employers to develop and implement strategies that aim to both (1) limit the spread of COVID-19 by implementing steps to decrease workplace exposure to the virus and (2) lower the impact of COVID-19 on business operations.

12 Questions Employers Are Asking About COVID-19

To assist employers in planning for and responding to COVID-19, CDC has issued Interim Guidance for Businesses and Employers: Plan, Prepare and Respond to Coronavirus Disease 2019.

Admittedly, how fast and how far the virus will spread is uncertain and, at this point, employers can only rely on the available information and will likely need to continuously review and update their policies. The following information will address some of the most frequently asked questions to date.

In addition, the U.S. Department of Labor (DOL) issued guidance on COVID-19 and the Occupational Safety and Health Act (OSHA), the Fair Labor Standards Act (FLSA), and the Family and Medical Leave Act (FMLA). A second post will focus on OSHA guidance.

COVID-19 Return to Workplace Strategies Virtual Conference

Top 12 COVID-19 Frequently Asked Questions (FAQs)

This list represents a compilation of some of the more common questions regarding COVID-19 so far and addresses the strategies to consider and the legal parameters involved. Much of the content in these FAQs is derived from the Equal Employment Opportunity Commission (EEOC) guidance document entitled Pandemic Preparedness in the Workplace and the Americans with Disabilities Act.

Caution: Depending on the particulars of your workplace, these answers may be subject to other legal constraints such as collective bargaining agreements, individual contracts and other statutory obligations. State and local laws and ordinances will also need to be consulted.

1. Can an employer ask employees to disclose whether they have heart disease, lung disease, diabetes or other chronic health conditions that CDC says could make them more susceptible to complications of COVID-19 before a pandemic occurs?

No. The response to a question asking an employee to disclose chronic health conditions is likely to disclose the existence of a disability. Such questions can only be asked when there is objective evidence that COVID-19 symptoms will cause a direct threat. Evidence that COVID-19 symptoms will cause a direct threat is absent before a pandemic occurs.

2. Can an employer identify which employees are more likely to be unavailable for work should a pandemic occur?

Yes. Employers may ask questions that are not disability-related. For example, if a question is designed to identify potential nonmedical reasons and medical reasons for absence during a pandemic, it is not disability-related. Specifically, employers can list factors that may contribute to an employee being absent during a pandemic that include both medical and nonmedical reasons and then ask employees whether any of the factors apply to them, with the caveat that employees do not specify which factors apply to them.

3. Can an employer ask employees to disclose whether they have heart disease, lung disease, diabetes or other chronic health conditions that CDC says could make them more susceptible to complications of COVID-19 during a pandemic?

In some cases, yes. In the event the COVID-19 pandemic becomes severe, the inquiry—even though disability-related—may be justified by a reasonable belief based on objective evidence that the severe form of COVID-19 poses a direct threat.

Coronavirus Resources

4. Can employers ask employees who report feeling ill at work or who call in sick whether they are experiencing COVID-19 symptoms?

Yes. Caution: Employers must maintain any information about employee illness as a confidential medical record in a separate medical file.

5. Can an employer send employees who display COVID-19-like symptoms home during a pandemic?

Yes. CDC advises that employees who become ill with symptoms of COVID-19 should leave the workplace.

6. Can an employer ask employees why they have been absent from work if the employer suspects it is for a medical reason during a pandemic?

Yes. An employer is always entitled to know why an employee has not reported for work.

7. Can an employer require employees to disclose their personal travel destinations?

Yes, subject to the caveat that employer inquiries cannot directly or indirectly target individuals based on race, ethnicity or national origin. In light of the public health threat created by COVID-19 and the declaration of COVID-19 as a public health emergency for the U.S., requiring employees to disclose personal travel destinations would not likely unreasonably interfere with any privacy concerns.

8. Can an employer require employees who have traveled to destinations where there is a COVID-19 outbreak to remain away from work until it is clear they do not have COVID-19 symptoms?

Yes. When CDC or state or local public health officials recommend people remain away from work for a specified period of time after visiting specific locations, employers can require employees who have traveled to those locations to remain away from work for the recommended time period.

9. If an employee contracts COVID-19, can an employer require the employee to use sick time and/or other paid time off (PTO)?

Perhaps. Whether an employer can require an employee to use sick time and/or other PTO depends on the employer’s policies. For employers subject to FMLA, an employee suffering from COVID-19 is likely experiencing a serious health condition.<1> In this case, the FMLA policy would govern: If the FMLA policy requires employees to use PTO for serious health conditions, the employer could require it. However, if the FMLA policy allows the employee to choose whether to use paid time off or unpaid leave for a serious health condition, the employee would be able to choose whether to use PTO or to take the leave unpaid.

For employers not subject to FMLA, employer policies regarding sick time and/or PTO will govern, including employer policies addressing state and locally required PTO.

10. If an employee is out of work caring for a family member suffering from COVID-19, can an employer require the employee to use sick time and/or other paid time off?

Perhaps. Similar to the answer to question nine, this depends on employer policies. For employers subject to FMLA, a family member suffering from COVID-19 is likely experiencing a serious health condition. In this case, the FMLA policy would govern: If the FMLA policy requires employees to use PTO to care for a family member, the employer could require it. However, if the FMLA policy allows the employee to choose whether to use PTO or unpaid leave to care for a family member, the employee would be able to choose whether to use PTO or to take unpaid leave.

For employers not subject to FMLA, employer policies regarding the use of PTO to care for a family member, if any, will govern. In the absence of a policy, employers could require employees to use PTO to care for a family member. However, CDC is suggesting that employers consider flexibility regarding PTO policies, which could include making exceptions to existing policies by allowing employees to take unpaid leave before paid leave is exhausted and/or providing additional paid leave.

5 Changes to Employee Benefits During the COVID-19 Pandemic

11. If an asymptomatic employee is quarantined because of exposure to COVID-19, can an employer require the employee to use sick time and/or other PTO?

Perhaps. Similar to the answers to questions nine and ten, this depends on employer policies regarding time off and, strictly speaking, there is no law prohibiting an employer from requiring an employee to use PTO in the case of quarantine, but employers may want to consider relaxing policy requirements and allowing employees to elect to take unpaid leave. Though not required, some employers are considering not requiring employees to use PTO and/or providing additional paid leave.

12. Can an employer require employees to adopt infection-control practices?

Yes. Employers can require infection-control practices such as regular handwashing, coughing and sneezing etiquette, and proper tissue usage and disposal. World Health Organization (WHO) video: How to handwash? With soap and water.

Employee Benefits in a COVID-19 World Survey Report

Additional COVID-19 Workplace Strategies

In addition to the above strategies, news reports indicate that many employers are already developing and implementing various new policies in response to the crisis. Some of the policies implemented include the following:

  • Limiting visitors in the workplace
  • Limiting prolonged interaction with other people
  • Dividing teams across locations to create redundancy so that if one team falls victim to the virus and has to self-quarantine, the work can still be performed by the other team
  • Advising co-workers to stand at least six feet apart
  • Directing employees to work from home
  • Cross-training employees who work from home so they can fill in if employees who cannot work from home get ill
  • Designating employees to work from home who can be “swapped” out when on-site workers get ill
  • Limiting off-site client meetings
  • Videoconferencing instead of on-site or face-to-face meetings
  • Paying cash bonuses to employees and asking them to use the money to stock up on two to three  weeks of food and water
  • Encouraging workers to avoid public transportation and arranging carpools
  • Restricting travel
  • Requiring employees to register their personal travel plans
  • Expanding leave and PTO policies.

Caution: The authors are not suggesting that any or all of these policies are appropriate for your particular workplace. Rather, they are provided as examples to illustrate the breadth of strategies employers are considering as the COVID-19 crisis unfolds.

Before implementing any of these strategies, employers should consult with their legal counsel to determine whether they are appropriate for their workplace. Importantly, depending on the nature of the business operations, there may be other legal concerns, such as whether there is a union bargaining obligation, and what impact OSHA has on the policies instituted. The impact of the National Labor Relations Act, FLSA, Health Insurance Portability and Accountability Act (HIPAA), and other legal and statutory provisions is also important.

More Information on Coronavirus and the Workplace

Find more resources for plan sponsors:

Coronavirus (COVID-19) Resources

Endnotes

<1>The Family and Medical Leave Act (FMLA) defines a serious health condition as an illness that involves inpatient care in a hospital or a period of incapacity of more than three consecutive days and treatment two or more times by a health care provider within 30 days of the incapacity.


Guest Contributors:

Katherine A. Hesse

Katherine A. Hesse, CEBS, ISCEBS-Fellow, is a partner in the law firm of Murphy, Hesse, Toomey & Lehane, LLP, in Boston, Massachusetts, where she practices primarily in labor and employment and employee benefits law. She serves as counsel to Fortune 500 companies, emerging businesses, government, tax-exempt organizations and large Taft-Hartley and governmental trusts. Hesse has served as President of the International Society of Certified Employee Benefit Specialists (ISCEBS) and serves on the International Foundation of Employee Benefit Plans Advisory Board of Directors and is chair of the Government Liaison Committee. She holds a B.A. degree from Smith College and J.D. degree from the Boston University School of Law.

Nan Oneil

Nan O’Neill is a partner in the law firm of Murphy, Hesse, Toomey & Lehane, LLP, in Boston, Massachusetts. She has 30 years of experience counseling and representing employers in all aspects of employment and traditional labor law. O’Neill has extensive experience in the litigation of employment-related disputes, including discrimination, reasonable accommodation, sexual harassment and wrongful termination matters, before state and federal courts and administrative agencies. She is a graduate of Boston College and the Georgetown University Law Center, where she served as articles and notes editor of the American Criminal Law Review and received awards for outstanding work in the study of labor law.

Comment (1)

  1. AvatarTom Dennis

    I quarantined for fourteen days as per my V.A. health provider suggested, because I was having symptoms that subsided four and a half to five days later. A Covid-19 test was not administered, as my only option to test was through the V.A. hospital in Birmingham. Then, symptoms cleared up. My employer is requiring a test for me to be paid for the 80 hours I was away from work. Now a test cannot be administered locally nor at the VA hospital void of any symptoms being shown. They (employer) instructed me to file for state unemployment.
    Doesn’t the Cares Act spell out the criteria for paycheck protection if I self-quarantined, because of symptoms I experienced, and my health care provider told me to stay home as being fulfilled? I am cleared now to return to work as per a VA letter stating that I complied and no longer pose a contagion threat. Since I did not test, I have been laid off, presumably to wait more time to ensure I am not contagious to co-workers. If I had tested I feel they would not have hesitated in receiving me back. In fact they offered to pay for the time off at full pay had I tested. Since I was not tested, the offer was rescinded and the layoff. What should I do?

    Reply

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