As the COVID-19 outbreak continues to grip the world, many employers throughout the U.S. are wondering what their rights and responsibilities are regarding the outbreak. What are your responsibilities as an employer in these uncertain times? What can you do to protect your workforce?

FMA’s lawyer, James R. Pirages with Hinshaw & Culbertson LLP, provides some of the frequently asked questions and answers for employers with small- to medium-sized businesses to consider:  

Is COVID-19 a disability under the ADA or state laws?  

Probably not, although this may require a case-by-case review. The flu is generally considered a transitory condition and not a disability. However, COVID-19 may cause significant impairments with respect to certain major life functions, including, most notably, breathing. Although an employer does not have to — and should not — label it a “disability”, a prudent course of action would be for an employer to treat it as one in the short term while considering accommodations in the workplace.    

Is COVID-19 a “serious health condition” under the FMLA or comparable state laws?  

While this should be considered on a case-by-case basis, it is likely that COVID-19 will qualify as a “serious health condition”. Therefore, when an employee is absent due to this condition (or has a parent, spouse, or child for which the employee is needed to provide care due to this condition), consideration should be given to providing the necessary FMLA paperwork (including, but not limited to, the appropriate “Certification of Health Care Provider” form) to the affected employee.    

May an employer require an employee to stay home and self-quarantine if they have been diagnosed with COVID-19, been directly exposed to an individual diagnosed with COVID-19, or returned from international air travel or a cruise?  

Employers generally have had the right to require employees who are ill to stay home from work.  Additionally, given the health and safety concerns, individuals who have been directly exposed to someone diagnosed with COVID-19 or have otherwise engaged in activities posing a higher risk (e.g., international travel, a cruise, etc.) may also be required to self-quarantine and stay home.  

May an employer require employees to submit to the taking of their temperatures?  

Under the Americans With Disabilities Act (“ADA”), employers should expect that someone may challenge mandatory body temperature testing as an impermissible medical exam under the ADA.  Post-employment medical exams are lawful only if justified by business necessity. Putting aside that issue, individuals infected by COVID-19 may not immediately experience or exhibit symptoms, including a fever, so such testing may not provide meaningful information in the workplace. In our experience, most employers are not engaging in this type of testing.  

Given the health issues involved, and employee privacy interests, what can employers share with employees about another employee’s illness or direct exposure?

Most employers are not covered entities under HIPAA; therefore, privacy concerns generally are going to be governed by state privacy laws, the Genetic Information Non-Discrimination Act (GINA) and the ADA. With respect to the ADA, employers have an obligation to maintain the confidentiality of employee medical records. Under GINA, employers should generally not ask employees about the health conditions of family members. It is especially important for employers to train supervisors about these issues.    

The above being noted, and given the health and safety concerns, employers will find it necessary to strike a balance between an employee’s privacy interests and other employees’ reasonable need to know if they have been exposed. Without disclosing names or personal circumstances, it is appropriate for employers to notify co-employees when another employee in the workplace may have tested positive for COVID-19 or may have been directly exposed.    

My employees are represented by a Union. What are my obligations to discuss these issues with the Union?  

Leave and compensation issues are mandatory subjects of bargaining under federal labor law. Such issues may have been addressed in a “management rights” clause or otherwise addressed in collective bargaining agreements, and each collective bargaining agreement will have to be assessed to determine how the topic is handled. Unilateral changes to leave and compensation policies may subject an employer to unfair labor practice liability, so the advice of experienced legal counsel is necessary to fully assess an employer’s obligations.  

Does an employer have to pay an employee who is quarantined or may the employee be quarantined without pay?  

If an individual is sick, an employer typically must follow its own paid time off policies.  If there is no sick leave policy, it is possible that local laws and ordinances may govern whether paid or unpaid leave is available. This will vary from state to state, county to county, and city to city. In the absence of a policy or an ordinance, such a self-quarantine typically is treated like any other illness and would be without pay.

Employers, obviously, may implement temporary measures or could elect to compensate individuals for a defined period of time (five or 10 business days) for issues related to COVID-19. Employees also have to consider the “salary basis” test under the FLSA with respect to any decisions concerning the interplay between compensation obligations and an employer’s leave policy.  Unemployment benefits may also be available in these situations.  

May an employer require the use of paid time off during a quarantine or an office shut down?

Generally, yes, unless a specific employer policy, collective bargaining agreement, or practice prohibits it.    

Must an employer pay employees during an office or site shut-down?  

The general rule for all employees is that if an office is closed there is no obligation to provide compensation. However, there are many exceptions to this rule. Consult with experienced legal counsel to discuss your obligations.

May an employer require an employee to undergo a medical examination if it has a good faith concern about the employee having COVID-19?  

Generally, yes. The EEOC last issued guidance on medical exams incident to a pandemic in 2009 and that guidance related to the H1N1 outbreak. EEOC guidance does not have the same force and effect as federal regulations, but is helpful in identifying when the EEOC believes a medical exam might and might not be appropriate. Generally, when the CDC or a local government issues a declaration of an emergency, employer testing most often is found to be job-related.    

What information may an employer require that an employee provide regarding the employee and / or a family member who has COVID-19 or has traveled to areas that are high risk for COVID-19?  

Given the obvious health and safety issues implicated by the COVID-19 pandemic, employers have a right to require employees to disclose if the employee or an immediate family member has tested positive for COVID-19. While an employer may require that the employee disclose this information, caution needs to be exercised under GINA in asking for additional information about a family member’s health. This is basic information necessary to protect other employees in the workplace. Employers also have the right to ask basic information about other activities which might constitute an elevated risk to others in the workplace, such as an employee’s travels to a Level 2 or 3 country (as determined by the CDC).    

What medical documentation may an employer require (consistent with the ADA and local laws) as a condition of returning to work following a COVID-19-related illness or an asymptomatic quarantine?  

Many employers have policies requiring a physician’s or clinician’s note following an absence lasting a certain number of days. The purpose of the note is to ensure that it is safe for the employee to return to work. An employee may also return with certain work restrictions which may be the focus of a possible accommodation discussion.  

May an employer restrict personal travel?

An employer’s right to restrict personal travel, obviously, is less than its ability to restrict business travel.  Please note that some states restrict an employer’s ability to limit personal travel; therefore, a review of your particular state’s law is essential.   

However, an employer may require an employee who has traveled from or through a Level 2 or 3 country (as determined under the guidance received from the CDC) to self-quarantine for an appropriate period of time, which is usually fourteen days. Also, if there is advice from the CDC on this issue, employers may rely on that advice in determining what steps employees should take after they complete personal domestic travel.  

What options does an employer have in terms of layoffs and similar actions to address the economic impact to their businesses and may these options be utilized with both exempt and non-exempt employees?  

Layoffs are available to employers which need to adjust staffing as a result of an economic downturn. Both exempt and non-exempt employees may be laid off. Employers often find themselves in litigation when layoff criteria is applied inconsistently or arbitrarily. Employers also must consider the requirements of the federal WARN Act or state mini-WARN Acts with respect to mass layoffs or plant closures.    

If an employee is assigned to work from home, what state law expense reimbursement laws are implicated, and what unanticipated costs might an employer need to address?  

This will vary from state to state, but states like Illinois and California, among others, require reimbursement of expenses incurred by an employee in performing tasks assigned by the employer. It is important for employers to have a written policy establishing how expenses will be reimbursed and establishing caps if permitted. This issue requires a state-by-state analysis.   

If non-exempt employees are assigned to work remotely, how does an employer track their time?  

An employer, under the FLSA and state law, has the obligation to keep a record of time worked by non-exempt employees. Some states, like Illinois, require that an employer track all time worked by all employees, including exempt employees. Prior to allowing a non-exempt employee to work remotely, there needs to be a clear understanding of assigned work hours, authorization for overtime, and how time is tracked. For example, many automated systems allow for log-in and log-out mechanisms.  Those same systems may be used for purposes of time tracking when work is performed remotely.  

If an employee is on leave and / or quarantine, does he or she qualify for unemployment benefits?

States are enacting emergency rules to allow for unemployment benefits in situations where employees self-quarantine or cannot work. This will be decided on a state-by-state basis and employers need to consider the availability of unemployment benefits as they decide whether to enhance paid time off benefits available to their employees.

If an employer allows employees to work from home due to COVID-19, is it setting a precedent for allowing an employee to work from home in other situations?     

Perhaps. Therefore, employers not generally permitting such arrangements should put their employees on notice that the work from home arrangement is temporary and limited to the COVID-19 crisis. It would also be helpful to note that all of a position’s “essential functions” are not readily performable while working from home and, therefore, that this exception (i.e., not performing all of the job’s essential duties while working from home due to COVID-19) is being allowed only because of the unique circumstances surrounding the current outbreak.  

Noted above are just some of the frequently asked questions about the COVID-19 outbreak and its impact on the workplace; additional developments and continued issues are certain to arise during the coming weeks. 

For guidance on these and other issues, please contact your employment law counsel.

Learn more about employer FAQs regarding COVID-19 in this free FabCast® webinar.