COVID-19 – Guidelines on Employer’s Rights to Deal with Workforce

The recent spread of the novel coronavirus (COVID-19) in many countries including the United States has affected all industries and workplaces. Most employers are confused as to whether they can ask the employee about travel history, whether to send an employee home if he/she exhibits symptoms and so on. A local labor lawyer can assist employers in getting a clear idea about the current Labor and Employment Laws. Lawyers dealing with worker’s compensation claims related to COVID-19 or any other respiratory infections or injuries can take support from medical record review companies to organize medical evidence from healthcare providers.

During this COVID-19 epidemic, employers are cautioned to stay abreast of federal, state, and local government advisories, and to consult legal counsel before making employment decisions or changing policy.

Here are certain recommendations based on U.S. Federal Labor and Employment Law and the current medical evaluation of COVID-19, that could help employers take the right decision regarding the future of their workforces.

Regarding sending employees home

• An employer can send an employee home involuntarily, if he/she exhibits symptoms of COVID-19. According to the Equal Employment Opportunity Commission, advising workers with symptoms to go home is not a disability-related action if the illness is akin to seasonal influenza and is permitted under the Americans with Disabilities Act (ADA) if the illness is serious enough to pose a direct threat to the employee or coworkers. CDC’s prevention guidance also recommends employees with symptoms of acute respiratory illness and a fever to stay at home. At the same time, employers should apply this type of policy uniformly without discriminating employees based on any protected characteristic such as national origin, gender or race.
• If an asymptomatic employee has been in close contact with someone with COVID-19, an employer can send her home or require to work from home. But make sure the employee fits within certain categories established by the CDC’s guidance which categorizes employees based on

  (a) symptoms (i.e., symptomatic or asymptomatic) and
  (b) risk (i.e., High, Medium, Low, or No Identifiable, which considers both
  (1) travel destinations and
  (2) level and type of contact with symptomatic individuals)

  Based on CDC guidance, employees who are asymptomatic may be excluded from the workplace, if they: have close contact with, sat on an aircraft within 6 feet, or live in the same household as, are an intimate partner of, or are caring for at home, while consistently using recommend precautions for a symptomatic individual with “laboratory-confirmed COVID-19.”

  For a symptomatic individual with laboratory-confirmed COVID-19, “symptomatic” is defined as subjective or measured fever, cough, or difficulty breathing. “Close contact” is defined as being within approximately 6 feet (2 meters) of a COVID-19 case for a prolonged period of time or having direct contact with infectious secretions of a COVID-19 case (e.g., being coughed on). However, standards and CDC guidance are different for healthcare employees. The CDC also reminds employers to

  • prevent stigma and discrimination in the workplace
  • use its guidance to determine the risk of COVID-19
  • consider reviewing pertinent guidance from state and local public health authorities

  Beyond the CDC’s guidance, employers can consider actions based on the consultation with legal counsel.

• If an employee returned from travel to an area with “widespread sustained” transmission, the employer can send this asymptomatic employee home or can require to work from home. As of March 8, 2020, those risk areas include China, Iran, South Korea, and Italy. At the same time, determinations should not be made based on race or country of origin.
• As a preventive or precautionary measure, an employer can also require an asymptomatic individual with no known exposure to COVID-19 to telework from home for a certain period of time, as long as the employee’s duties allow telework. Telecommuting is particularly useful if there are documented cases of COVID-19 in the geographic area.

Employee returning to work

• CDC has recommended that an employee who was sent home for exhibiting symptoms can be returned to work at least 24 hours after no longer having or exhibiting symptoms such as a fever, signs of a fever, and any other symptoms, without the aid of fever-reducing medicines or other symptom-masking medicines. However, for an employee with a confirmed COVID-19 diagnosis return-to-work standards and time periods may be different.
• For the health and safety of returning employees and their coworkers and for the continued operations of the business, an employer may want to meet with the returning employees to remind them to practice good respiratory etiquette and hand hygiene, avoid close contact with individuals who appear to be sick, or stay home if they begin to feel sick.
• For healthcare employees, the CDC has issued specific guidance relating to risk assessment and management, which in certain respects provides more specific and expansive guidance regarding when to send healthcare workers home and when they may return to work based on their specific exposures or potential exposures. Based on certain categories of potential exposure, the guidance recommends sending a healthcare worker home for 14 days while monitoring for symptoms in coordination with state or local public health authorities. Healthcare employers should carefully review this guidance, consult with their state and/or local public health authorities, and consider changes to company policies regarding covered healthcare workers.
• Employees can be allowed to remain out of work, if they do not feel well enough to return to work at least 24 hours after no longer having a fever or exhibiting signs of a fever. In such cases, first employers should follow current guidance from the CDC and public health authorities as it is updated. If an employee is given specific restrictions or instructions by a public health authority or a medical provider, employers must make all reasonable efforts to accommodate those instructions to improve the health of the workplace. Also, employers should take proactive steps to minimize the risk of spreading the virus at work and remain mindful of potential existing leave obligations under the Family and Medical Leave Act (FMLA) for serious health conditions or accommodations (including additional leave) under the ADA.
• According to the CDC, a doctor’s note should not be a prerequisite for employee returning to work. If an employee’s situation meets the ADA’s “direct threat” standards, however, an employer may require a return-to-work doctor’s note. If the employee’s illness is a “serious health condition” under the FMLA, the employer would be able to require a return-to-work note if the employer complies with the FMLA’s guidelines for requiring such documentation.
• An employer can also refuse to allow the employee to return to work, even if the employee says he or she is ready to return to work and has a doctor’s return-to-work note, but the employer is concerned that the employee would create an unsafe or unhealthy work environment and may not be able to safely perform his or her duties.

The National Law Review has discussed more FAQs regarding Federal Labor and Employment Laws.

OSHA Guidelines to Employers

According to the Occupational Safety and Health Act of 1970 (OSHA), SARS-CoV-2, the virus that causes COVID-19 has the potential to cause extensive outbreaks and workplaces may experience absenteeism, interrupted supply/delivery and change in patterns of commerce.

Based on OSHA guidelines, employers can consider these steps to reduce workers’ risk of exposure to SARS-CoV-2.

• If no case is reported yet in your workplace, develop an Infectious Disease Preparedness and Response Plan
• Follow directions from federal, state, local, tribal, and/or territorial health agencies, and incorporate those recommendations in the workplace
• Implement basic infection prevention measures like promoting frequent hand washing and encouraging workers to stay home if sick
• Maintain regular housekeeping practices, such as routine cleaning and disinfecting of surfaces, and equipment of the work space
• Develop relevant policies to identify and isolate sick people, if they are sick or experiencing symptoms of COVID-19
• Encourage sick employees to stay at home and make sure that the company’s sick leave policies are flexible and consistent
• Workers with ill family members may need to stay home to care for them. Maintain flexible policies that permit employees to stay home to care for a sick family member
• Implement engineering controls, administrative controls and safe work practices to minimize exposure to SARS-CoV-2 within the firm

Employers must also take effort to ensure that employees stay aware about the current CDC and WHO updates regarding COVID-19 and train them to strictly follow all the guidelines provided.

Disclaimer: The content in this blog is sourced from reliable internet resources and is not the opinion or premise of MOS or any of its stakeholders. For more information, visit OSHA website or other government websites.