The novel coronavirus (COVID-19) is testing the flexibility and function of employers globally. A primary impact is the manner in which employers address the ability to continue operations, while at the same time, coordinating employee safety, well-being and promoting privacy rights. In this complex setting, employers must coordinate compliance with governmental travel restrictions, CDC guidelines and navigate employment matters including OSHA, EEOC, FMLA, potential workers’ compensation claims and employee privacy rights.
At the outset, it is important to note that pursuant to the OSHA’s General Duty Clause, employers are required to provide employees with “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” As a result, employers have an obligation to respond to the pandemic to ensure the safety and well-being of their employees.
Many employers are exploring alternatives to the traditional work model due to the risk of infection and spread of the coronavirus. Such options include telecommuting, staggering work shifts to avoid increased exposure, teleconferencing and limitation of non-essential travel. Employers may also consider flexible leave policies and use of accrued time off in situations where an employee is unable to work remotely.
Alternatively, employers may consider lay-off or administrative leave (paid or unpaid as required by law or consistent with company policy) in situations where employees are unable to work remotely. However, employers are encouraged to review collective bargaining agreements to ensure lay-off and/or administrative leave decisions are in compliance with negotiated rights. Lay-offs may trigger WARN notice requirements depending upon the scope and duration.
Situations may also arise where employees require a leave of absence, and if eligible, FMLA designation. If an employee, or qualifying family member contracts coronavirus, the infection may constitute a serious health condition if there is inpatient hospitalization or the treatment requirements. Such leaves may also implicate paid leave provisions (STD/LTD). If the employee’s leave qualifies for a medical leave of absence, the time off would likely qualify; however, if the absence is due to fear of infection it may not qualify for the medical leave or paid leave provisions. In situations of medical leave, employers may seek medical clearance for return to work (fitness for duty pursuant to FMLA), but clearances may be impacted by state/local law, and requirements should be applied consistently to all employees.
It is unlikely that the coronavirus will implicate the Americans with Disabilities Act. For the ADA to apply, an employee must have a disability that substantially limits a major life activity due to a mental or physical impairment. Conditions that are transitory in nature, generally, are not covered by the ADA. Symptomatic employees may be “regarded as” disabled, thus triggering the ADA. However, in light of the pandemic declaration, the EEOC has provided guidance, employers may require employees showing symptoms stay at home, require telecommuting/alternative work practices and request medical documentation for absences.
Another concern involving proper management of the coronavirus is possible infection at the workplace and workers’ compensation claims. Claim viability may depend upon the industry. For example, employees who work in healthcare, hospitals, nursing homes and the like may have a viable claim if infected by a patient at the location the employee is able to prove he or she was not at any other places where virus had been reported.
Lastly, employers are reminded to maintain employee confidentiality in all communications. First, employers should request information from employees whom may be infected only to the extent necessary to address employment-related concerns. Moreover, employers should be aware of privacy rights of employees in communications to staff regarding positive tests and determine whether it is necessary to disclose the employee’s name. Depending upon the nature of the issue, improper communications may violate an employee’s HIPAA rights.
In conclusion, employers must be proactive in managing the coronavirus pandemic and associated employment. Employers are encouraged to consult with an experienced attorney to discuss the potential options available at this time and in the future. The Chartwell Law Employment and Labor Practice is available to assist during these trying times.