EMPLOYMENT IN THE TIME OF COVID-19

Are Employers Obligated to Protect Employees from Covid-19?

Employers must follow OSHA and state occupational safety health laws to provide safe workplace that is free from recognized hazards likely to cause harm.

Health care employers have more extensive obligations because of occupational exposure to known infected persons.

Employers should take steps to avoid placing employees in high risk of infection by:

• prohibiting employee business travel to areas with significant outbreaks and barring all nonessential travel to other locations.

• requiring employees who may have recently traveled to affected areas to work remotely until the incubation period for the illness has passed.

• canceling employee participation in large-scale gatherings where there is an elevated risk of exposure.

• allowing greater flexibility for employees to work remotely; and

• instituting temporary office closures or large-scale remote working arrangements if the outbreak continues to expand.

Employers should also encourage good hygiene and clean work areas and provide sanitizers and other cleaning products to employees.

Can Employer Ban Business and Personal Travel of Employees?

Employers may ban employees from business related travel.

However, employers cannot ban employees from personal travel.  Although, employer may request to be informed if the employee travel to areas with known outbreak.

Can Employers Require Employees to Be Tested for Covid-19?

Employers may require an employee to be tested for Covid-19 if there is good cause to believe that the employee may pose a direct threat to the health and safety of others, pursuant to OSHA, ADA and disability discrimination laws.  Following factors must be considered:

• when the employee became sick,

• symptoms known to the employer,

• whether the employee has traveled recently to an area with a known outbreak, and

• whether the risk can be eliminated or reduced by requiring the employee to work from home for a period of time.

Do Employers Have and Obligation to Pay Employees Who Are Subjected to Quarantine?

As of April 3, 2020, pursuant to the newly promulgated Emergency Paid Sick Leave and Family and Medical Leave Extension Acts, employers are obligated to provide paid leave to qualified employees under quarantine or isolation. 

After leave options are exhausted, with respect to hourly employees, employers may choose to reimburse all non-exempt employees (hourly employees) for the hours worked, pursuant to the Fair Labor Standards Act.  Under Federal law, no additional payment of wages is required if employee does not perform any work.

For exempt employees (salary employees), employers must pay the full salary of the employee for any workweek in which the employee performed any work.  Employers are not required to pay salary for any workweek in which the employee did not perform any work.  It should be noted that under some state wage statutes, employees may lose exempt designation if their pay is deducted.

If quarantine is imposed during business travel, employers should strongly consider continuing the employee’s compensation during the quarantine period to avoid employee relations concerns.

During a Temporary Shut Down by the Employer, Do Employers Have to Pay Employees?

All non-exempt employees (hourly employees) must be paid for the hours worked, pursuant to the Fair Labor Standards Act.

For exempt employees (salary employees), employers must pay the full salary of the employee for any workweek in which the employee performed any work.  Employers are not required to pay salary for any workweek in which the employee did not perform any work.  It should be noted that under some state wage statutes, employees may lose exempt designation if their pay is deducted.

Employers must also ensure they comply with Federal and state WARN Acts which require advance notice to employees prior to shut downs.  

In a Government Mandated Shut Down, Do Employees Qualify to Receive Unemployment Benefits?

Some states, such as the state of Maryland, provides unemployment coverage for certain employees in the event of government mandated shut down.   Employers should refer to their respective state guidelines for unemployment in the event of shut down due to Covid-19.

Do Employees Have the Right to Work from Home, If They Feel Uncomfortable About Commuting Into Work?

Employers generally do not have an obligation to provide telecommuting options, except for employees who qualify under Americans with Disabilities Act to accommodate a disability.

If an Employee Is Uneasy About Working with Iranian, Italian or Asian Coworkers (who are not known to be infected), Should Employers Separate the Employees to Reduce Tension in The Workplace?

No.  Employers may not discriminate against one class of employees.

If an Employee’s Job Requires Lot of Close Contact with Many Customers, Can the Employee Request Not to Perform the Job Because of the Outbreak?

Employees are protected against retaliation from an employer if they refuse to work on what they consider an unsafe work assignment.  The test is whether a “reasonable” employee would otherwise consider the work environment safe.  For instance, if a cleaning crew has received necessary training to protect against Covid-19, along with gloves and protective equipment, it may not be considered reasonable to refuse to perform the cleaning job.  If known active Covid-19 infected persons are present in the cleaning environment, then it is a different story.

Can the Employer Require Business Travel?

Yes.  Employers can require business travel under the threat of termination of employment.  Employees should come up with strong arguments for how technology can replace and be as effective as in-person meeting.  Employers who threaten employees under these circumstances risk lowering employee morale.

In the event that travel is to a known unsafe location, requiring employees to travel to that unsafe location could be considered illegal.

Can Employers Take Employees Temperature at Work?

Measuring an employee’s temperature generally is considered a medical examination and usually not allowed, according to the Americans with Disabilities Act.  But, in a severe influenza outbreak, such a check is permissible.  So, employers could require measuring temperature of employees in a coronavirus epidemic.

Are Employers Required to Inform Staff if One Employee Contracts Covid-19?

Generally, yes.  Companies have an obligation to warn those who may have come in contact with someone diagnosed with Covid-19.  Health authorities may also want the public to know.  However, it’s unlikely that the employer would identify the infected employee’s name.  That could violate confidentiality requirements of ADA.

About the Author: Reza Ghafoorian, MD, JD is the founder and Principal attorney at G2Z Law Group, PLLC, a health care law firm established in 2012.  Dr. Ghafoorian focuses his practice in the fields of healthcare law and patent law, representing healthcare entities and professionals.