As the number of cases continues to increase and shutdowns are occurring all across the country, questions remain about how employers can respond to the situation now and if the spread of the disease continues to worsen. This article addresses some the questions and recommends steps employers can take now to prepare while complying with their legal obligations.
What actions should employers take to ensure a safe and health workplace?
The easiest steps that employers can take are to encourage employees to follow the CDC’s recommendations for preventing the spread of the disease. Employers should make efforts to provide health and sanitation supplies around the workplace such as soap, hand sanitizer, and disinfectant. They should also encourage sick employees to stay at home or if employees can work remotely to do so. If your business is still open and attendance is necessary, social distancing should be encouraged. Virtual meetings should be used rather than in-person meetings.
Employers should also ensure that they are complying with Occupational Safe and Health Administration (“OSHA”) regulations. Employers have a duty and obligation under these regulations to provide a safe and healthy work environment. In addition, they must not place their employees in situations that are likely to cause serious physical harm or death. This means employers may need to suspend non-essential travel to highly affected areas and consider accommodations for essential travel to these areas.
What policies should employers be implementing now?
Employers may want to consider adopting policies to address growing concerns such as:
- Send employees who display symptoms home and allow employees to work from home if feasible. This action does not run afoul of the ADA restrictions on disability related action, meaning employees are not discriminating based on a potential disability by sending the employee home and requesting that the continue to work from home. If an employee’s position does not allow telecommuting, employers should consider providing them to utilize paid leave. There is one federal bill pending to require paid leave after being out of work for 14 days but nothing has been passed yet.
- Provide leave under the Family Medical Leave Act (“FMLA”) or state wage and hour laws. Employers are required to provide at least 30 days job protected leave for any employee who has worked more than 30 days. Employees are also entitled to take a 12 week job-protected leave for a serious health condition under the FMLA. Coronavirus would qualify as such a condition because leave time will exceed 3 days or meet other criteria. If FMLA time is exhausted, employers should consider affording additional time as a reasonable accommodation. Employers may consider giving employees paid time off if they are diagnosed with the virus.
- Do not make medical inquires or require medical examination absent a reasonable belief. Under the ADA, employers are only able to make medical inquires and require medical examinations when they are job-related and consistent with a business necessity. However, during a pandemic, employers can make medical inquires or require medical examinations if they have a reasonable belief that any employee will pose a direct threat due to contracting a medical condition. It is allowable to ask employees to take their temperature twice per day.
- How to handle an employee who refuses to work. If an employee refuses to work, they are not required to be paid but you can offer them vacation or PTO, if you chose. Whether or not you can terminate may depend on all circumstances.
- Contacts of Contacts. A person who lives with a person who may have been potentially exposed to someone but is asymptomatic is considered a “contact of a contact.” You can require that employee to remain off work until testing is complete of the potential patient but you can also allow that person to work so long as they are asymptomatic. You can require the employee to take their temperature at least twice per day. You can require that an employee inform you if they or a family member has been exposed to someone who has tested positive or who is exhibiting symptoms.
Are there unemployment benefits available?
Kentucky and Ohio both have waived the 7 day waiting period for unemployment benefits. If an employee is off work due to a layoff or on a reduced leave schedule, they may be eligible immediately for benefits.
How can spread of the Coronavirus be prevented?
The Center for Disease Control (“CDC”) recommends precautions such as washing hands with soap and water for at least 20 seconds, or using hand sanitizer if soap is not available; avoiding close contact with sick individuals; staying home when you are sick; and frequent disinfection of commonly touched objects and surfaces.
This article just begins to cover some of the issues employers may face in the workplace as the virus continues to spread. Employers may want to designate a point person to address questions employees may have about steps being taken to address and combat further spread of the virus in the workplace. It is important that employers and employees alike stay apprised of information on the virus by consulting trustworthy sources of information like the CDC website (https://www.cdc.gov/coronavirus/2019-ncov/index.html) and the website for the World Health Organization (https://www.who.int/health-topics/coronavirus). Issues are arising daily and changing every day and we will update this information as it becomes available.
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