The Coronavirus (“COVID-19”) has employers concerned, especially after the World Health Organization (“WHO”) declared a public health emergency. Employers now face pressing legal concerns relating to such matters as protecting employee safety, ensuring proper pay and benefits, and managing employee travel and quarantines.
To assist employers in navigating these difficult issues, the U.S. Department of Labor has now released a very helpful Guidance for employers, which is available here.
We want to dive a little deeper while also highlighting issues peculiar to Minnesota law. However, we want to avoid the information overload that we are all experiencing so we are offering a series of shorter summaries of various aspects of the employer’s response to COVID-19. Let’s start with the health and safety concerns.
What do I do with an employee who is coughing violently, seems very ill and is making others uncomfortable?
Send that employee home. Of course, make those judgements on a nondiscriminatory basis – do not distinguish with respect to the employee’s race, sex, age, national origin, disability (including perceived disability) or other protected classification.
Tell the employee to remain home until they feel better. To encourage employees to comply, you may even want to consider providing additional paid sick leave or allowing employees to work from home during this time.
Can I require sick employees to be tested for COVID-19?
Not at this time, although this may change as things develop and CDC/EEOC guidance changes. Generally speaking, the Americans with Disabilities Act (ADA) prevents employers from requiring medical examinations or conducting medical inquiries unless they are “job-related and consistent with business necessity” or if the employee poses a “direct threat” to the workplace. Nevertheless, you can still ask the sick employee to go home until symptoms alleviate and/or ask the employee to stay home for a 14-day period.
According to 2009 Guidance from the EEOC, an employer may be justified in measuring employees’ body temperatures if state or local health authorities or the CDC determine that an outbreak is severe. The EEOC noted, however, that requiring testing of asymptomatic employees would violate the ADA: “making disability-related inquiries or requiring medical examinations of employees without symptoms is prohibited by the ADA.”
In the end, because it is neither a medical exam nor a medical inquiry, an employer is free to advise employees to check their own temperatures and advising employees to stay home if they have a fever.
Should I require employees to wear face masks?
There is no requirement for employees to wear respirators or other types of personal protective equipment (“PPE”) while at work. In fact, the CDC recently stated that it does not yet recommend wearing face masks or any other PPE by the general public at this time.
For healthcare employers, the Centers for Disease Control (CDC) has a resource page dedicated to PPE,
What can we do to prepare for the unfortunate event that one of our employees is exposed, or if the virus emerges in our area?
Time is critical here. Thus, it is important to have a plan in place prior to any event and to respond efficiently and effectively to any issue that may arise relating to COVID-19.
If you suspect any of your employees may have been exposed to COVID-19, or has recently traveled to an area where the virus is active, suggest asking the individual to either work from home (if possible) or self-quarantine for a two-week period after returning.
If an employee is absent because of COVID-19 diagnosis, “an employer would be allowed to require a doctor’s note, a medical examination, or a time period during which the employee has been symptom free, before it allows the employee to return to work.”
What if an employee came into work sick with COVID-19 and potentially exposed numerous other employees and/or clients?
If this occurs:
– Investigate and send home any employee who may have been exposed. You may even want to consider temporarily suspending your operations while investigating the breadth of the exposure.
– If an employee is diagnosed at a hospital, the hospital will also likely report to the CDC and/or the local Department of Health and they will intervene to help you investigate and potentially sanitize your workspace.
The issues arising out of COVID-19 seem to change at a moment’s notice so be sure to stay updated.
Our next article will focus on the pay and benefits issues that employers might face. Stay tuned.