Planning for COVID-19 Disruptions: Top Issues for Employers

March 2020

As you know, the situation surrounding the respiratory disease COVID-19 has continued to rapidly evolve since the global outbreak started earlier this year. In its comments on Wednesday afternoon, the World Health Organization (WHO) publicly characterized COVID-19 as a pandemic. Although the U.S. Centers for Disease Control and Prevention (CDC) maintain that the risk of infection with COVID-19 remains low for most people in the U.S., certain individuals have an elevated exposure risk due to circumstances such as their location or the type of work they do.

Even prior to the WHO’s comments this week, many employers had made the decision to roll out their existing pandemic response policies or to modify these policies to address the specific risks associated with COVID-19. Employers that do not already have such policies in place may currently be working to implement them, and the HR & Employment practice group team at FMJ is here to help. Our team offers comprehensive advice to help employers craft effective pandemic response plans and strategies that make sense for their business. Additionally, as we work to help businesses navigate the ongoing COVID-19 developments, we also want to provide our clients with practical information regarding some of the issues we have encountered most frequently throughout this process.

Issue 1: Whether employers may require employees to disclose information regarding their recent travel or other potential pathways of exposure to COVID-19.

This question raises potential issues under the Americans with Disabilities Act (ADA). The ADA generally limits an employer’s ability to make disability-related inquiries unless there is objective evidence indicating that either (i) the employee’s ability to perform essential functions is impaired by a medical condition; or (ii) the employee will pose a “direct threat” due to a medical condition. Guidance issued by the Equal Employment Opportunity Commission (EEOC) indicates that whether a particular outbreak rises to the level of a “direct threat” depends on the severity of the illness and that employers should rely on the most current CDC and public health assessments available during a pandemic to identify any objective evidence provided by those agencies to justify a disability-related inquiry. As of the date of this article, the CDC’s interim guidance encourages employers to take the following actions, among other things:

  • Advise employees to check themselves for symptoms of acute respiratory illness prior to any travel, and to notify their supervisor and stay home if they become sick.
  • Advise employees who are well but who have a sick family member at home with COVID-19 to notify their supervisor and refer to CDC guidance on how to assess their risk of potential exposure.

In addition to the CDC, the Occupational Safety and Health Administration (OSHA) has also weighed in on what measures are appropriate during the COVID-19 outbreak in order to keep workplaces safe. Current guidance on OSHA’s website indicates that an employer’s response plan may include asking employees to report whether they or a family member have traveled to certain regions that are known to have extensive person-to-person transmission of COVID-19. Outside of the above agency guidance, employers should exercise caution in asking questions that could be perceived as disability-related.

Issue 2: Whether employers may require employees who are ill with COVID-19, or who have had a confirmed exposure, to remain home from work.

The ADA limitations outlined under Issue 1 also apply to an employer’s ability to exclude employees with qualifying conditions from the workplace for health or safety reasons. Importantly, the EEOC makes it clear that employers must assess the existence of a “direct threat” based on factual information, “not on subjective perceptions…[or]irrational fears.” The current CDC guidance for employers states that employers should actively encourage employees with symptoms to stay home and not come to work until they are free of all symptoms for at least 24 hours, without the use of fever-reducing medications. The CDC also recommends that employees who show observable symptoms of having acute respiratory illness at work (i.e., fever, coughing, shortness of breath) should be separated from other employees and be sent home immediately.

Current OSHA guidance indicates that employers may take reasonable action with regard to individuals who have traveled to high-risk areas or have been exposed to the illness, which may include directing such employees to work from home during the incubation period identified by the CDC (which is up to 14 days for COVID-19). As a related matter, OSHA has taken the position that a worker contracting the COVID-19-causing virus in the workplace or while performing their job would be considered a recordable illness. It may not be easy to establish that the virus was contracted at work, particularly given the long incubation period, but in the event a worker does become infected in the course of work, employers should follow proper procedures for filing the appropriate illness reports with OSHA.

Issue 3: Whether employees can refuse to report to work due to fear of COVID-19 infection.

Under OSHA regulations, an employee is only entitled to refuse to work if certain requirements have been met. One such requirement is that the employee must genuinely believe that imminent danger exists. In other words, the condition must clearly present “a risk of death or serious physical harm.” Given the CDC’s current position that most types of workers in the U.S. are at a low risk of becoming infected by COVID-19, this would be a difficult threshold to meet for many—but not all—employees.

It is also important to note that employees who engage in a concerted refusal to work under what they feel are unsafe conditions may be protected from discipline or other adverse employment actions under the National Labor Relations Act (NLRA).

Issue 4: Whether employers may require a doctor’s note to validate an employee’s need for time off.

The CDC is encouraging employers to forego their existing verification practices, as medical facilities may not be able to provide documentation to verify or rule out a COVID-19 infection in a timely manner. However, employers may ask employees who call in sick whether they are experiencing symptoms of COVID-19 (fever, coughing and shortness of breath). Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA. Also, keep in mind that employers who are covered under a state or local sick and safe time ordinance may be required under that law to wait until the employee’s absence exceeds three consecutive scheduled workdays before asking for reasonable documentation to verify that the absence is for the stated illness.

Issue 5: Whether or not employers are required to pay employees who are instructed to remain home due to a suspected or confirmed COVID-19 exposure.

The answer to this question can vary, depending on whether the employee is considered exempt or nonexempt under applicable wage and hour laws. Under the Fair Labor Standards Act (FLSA), employers are generally only required to pay nonexempt employees for the hours they have actually worked. However, this rule does not apply to nonexempt employees who are paid on a “fluctuating-workweek” basis under the FLSA, who are typically entitled to receive full weekly pay for each workweek in which they perform any work.

Exempt employees who perform at least some work in a workweek must generally be paid their full salary for that week. Exceptions to this requirement may exist in situations where the employee has not been instructed to stay home but elects to do so and performs no work that day.

Issue 6: What information is appropriate to share with the workforce when an employee has been exposed to COVID-19 or has become ill with the virus.

While the ADA requires confidentiality surrounding an employee’s medical condition, it is also important to protect the health and safety of others in the workplace. Our recommendation is to provide general information to employees to let them know that someone in the company has been infected with the virus, in order to allow employees to monitor themselves for symptoms and, if appropriate, undergo self-quarantine. To comply with the ADA and other privacy laws, however, it is important that employers avoid specifically disclosing the identity of an infected employee or providing information that would enable other employees to identify the infected individual.

Certain employers who are covered under the privacy rules of the Health Insurance Portability and Accountability Act (HIPAA) may have strict obligations not to disclose health information that would be protected under those rules. HIPAA’s privacy restrictions apply to “covered entities” such as healthcare providers and health plans, and business associates working on behalf of the covered entity. An employer may fall into this category if, for example, it sponsors a self-insured group health plan and receives protected health information from the health plan in order to carry out certain plan administration functions. However, most employers are not considered covered entities and are not subject to HIPAA’s privacy regulations. Furthermore, information received from an employee regarding their health is generally not considered protected health information for purposes of HIPAA.

Because the COVID-19 pandemic is a rapidly evolving situation, it is important that employers consult reliable sources of information in order to remain informed on the latest developments. Below are links to sources of accurate data, information and employer resources. It is also prudent to put effective pandemic response strategies in place to ensure business continuity in the event of unexpected public health-related disruptions. If you would like to discuss how specific pandemic response strategies can support your business during the COVID-19 outbreak and future pandemic situations, please contact Natolie Hochhausen or Shannon McDonough or call (952) 995-9500.

Additional Resources:

The CDC is continually updating its recommendations for businesses surrounding the COVID-19 pandemic on its website at https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html.

OSHA is also regularly updating its guidance, which can be found on its website at https://www.osha.gov/. A new guidance document has been issued by OSHA this month specifically to help businesses prepare for COVID-19. This document can be found at https://www.osha.gov/Publications/OSHA3990.pdf

The EEOC’s fact sheet titled Pandemic Preparedness in the Workplace and the Americans with Disabilities Act continues to be a good source of information on pandemic response efforts and can be found at https://www.eeoc.gov/facts/pandemic_flu.html