Employers must carefully balance their duty to provide a safe and healthy workplace for employees with compliance mandates so as to not violate employee rights afforded by the Americans with Disabilities Act, the Family and Medical Leave Act and other civil rights and anti-discrimination laws.
Below are some frequently asked questions that may assist employers in their attempts to maintain legally-compliant employment practices while proactively protecting against the spread of the virus. Please note that these questions address the current circumstances as of March 17, which are constantly changing; we are in an unprecedented situation and need to continually monitor various governmental agencies for guidance.
Can an employer take employees’ body temperatures during the COVID-19 pandemic to determine whether they have a fever?
Yes. The ADA applies to employers with 15 or more employees. Under the ADA, measuring an employee’s body temperature is considered a medical examination, which is permitted only where the employer can demonstrate, based on objective medical evidence, that the particular employee presents a direct threat to the health or safety of other employees.
However, the EEOC has recently issued guidance confirming that employers may measure employees’ body temperature without running afoul of the ADA because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions.
If an employer decides to begin taking employee temperatures, the employer should do it in a confidential setting and inform the employee that taking the temperature is only to assess whether the employee has symptoms, not make a medical diagnosis
Can an employer ask an employee who is demonstrating flu-like symptoms to stay home or to leave work?
Yes. OSHA’s General Duty clause requires employers to provide employees a safe workplace that is free from recognized hazards that could cause serious harm to employees. OSHA and the CDC recommend that employers should encourage sick workers to stay home.
May an employer require an employee to travel by airplane if travel is an essential function of the job?
Employers must follow the guidelines being issued on travel from the CDC. This is a difficult question. In general, employees are entitled to refuse to work only if they reasonably believe they are in imminent danger. OSHA discusses imminent danger to include situations where there is “a reasonable expectation that toxic substances or other health hazards are present, and exposure to them will shorten life or cause substantial reduction in physical or mental efficiency.” Given all the recommendations coming from the various governmental agencies to limit contacts and avoid gatherings of more than 10 people, an employer would have a difficult time requiring an employee to take an airplane and then taking disciplinary action against an employee who refuses to do so. Employers should work to come up with alternatives to air travel, such as having virtual meetings (e.g., Skype or its equivalent) to avoid being in a position in which the employer forces an employee to travel by airplane at this time.
May an employer prohibit employees from traveling to countries disproportionately affected by the coronavirus?
No. An employer cannot prohibit employees from traveling on personal time. However, an employer may ask whether employees are returning from these locations and take appropriate precautions upon their return, such as requesting they work remotely and self-observe for the 14-day incubation period, to ensure the workplace remains safe. In addition, there are currently travel restrictions in place affecting travel to certain countries.
Must an employer pay employees for short-term workplace closures?
Generally, non-exempt hourly employees need not be paid during business closures, provided that they perform no work during that closure period. Similarly, exempt employees need not be paid for any payroll week in which they perform no work at all. On the other hand, if the exempt employee spends even one hour working, whether from the office or remotely, he or she must be paid the entire week’s salary. Otherwise, the employee may be at risk for losing his/her overtime-exempt status under the Fair Labor Standards Act, and employers may subsequently be liable for paying overtime.
Accordingly, if employers do not want employees working during periods of closure, employers must make it clear (through a written communication or other written policy) that no work is to be performed. Although not currently required to pay employees during periods of short-term workplace closures, employers may elect to continue paying their employees during such periods. This answer assumes that there is no collective bargaining agreement or employment agreement that would apply. An employee would also be able to use Paid Sick Time and PTO to cover absences. Employers may also want to create more flexible leave policies during this time.
May an employer ask employees if they are experiencing flu-like symptoms?
Yes. The ADA does not prohibit employers from asking employees who report feeling ill or call in sick whether they are experiencing symptoms like fever, chills, cough or sore throat as this line of questioning is not designed to elicit information about a disability. However, employers must maintain all information about an employee’s illness as an ADA-compliant confidential medical record..
May an employer require employees to wear a mask at work?
It depends on the nature of the work and the level of exposure risk (i.e., low, medium, high, very high). Under general OSHA standards, an employer may require the use of a respirator if it is necessary to protect the health or safety of an employee. When respirators are necessary to protect workers, employers must implement a comprehensive respiratory program in accordance with the Respiratory Protection standard (29 CFR 1910.134), which requires training employees on the proper use and care of respiratory protection equipment.
According to OSHA’s recent Guidance on Preparing Workplaces for COVID-19, the use of Personal Protective Equipment (“PPE”), including gloves, face shields or masks, and respiratory protection, may be needed in certain jobs in order to keep employees safe. According to the Guidance, the types of PPE required during a coronavirus outbreak should be based on the level of risk of being infected while working and job tasks that may lead to exposure. See OSHA Guidance (www.osha.gov/Publications/OSHA3990.pdf) for risk level assessments.
OSHA warns that during an outbreak of an infectious disease, such as COVID-19, recommendations for PPE specific to occupations or job tasks may change. Employers are therefore encouraged to check the OSHA and CDC websites regularly for updates about recommended PPE.
Additionally, the EEOC issued guidance in 2009 suggesting that, during an influenza pandemic (defined as a global “epidemic”), an employer may require employees to wear employer-provided protective equipment (e.g., face masks, gloves, or gowns) to minimize transmission of infection.
May an employer deny an employee’s request to wear a face mask?
Yes, under most circumstances. OSHA’s respiratory protection standard dictates that face masks are only required “when such equipment is necessary to protect the health of such employees.” Given that the World Health Organization has stated that people only need to wear face masks if they are treating someone infected with the coronavirus, in most instances these masks would not be a requirement and an employer would be free to deny a request to wear them. However, because the medical community is still learning about transmission of the virus, employers should check the OSHA and CDC websites for updates about recommended PPE
May an employer require employees to wash their hands?
Yes. An employer may require employees to adopt disease control strategies such as regular hand washing, coughing and sneezing etiquettes, and proper tissue disposal..
May an employer request a doctor’s note from employees who are sent home or choose to stay home after demonstrating flu-like symptoms?
Under Arizona’s Paid Sick Leave Statute, employers may ask for a doctor’s note only if an employee has been absent three or more consecutive days. If an employee tests positive for the coronavirus, the employee will need to comply with the CDC quarantine rules before returning to the workplace. The EEOC has also confirmed in its recent Guidance regarding COVID-19 that the ADA allows employers to require doctors’ notes certifying their employee’s fitness for duty. As a practical matter, however, the CDC is also recommending that employers don’t ask for doctor’s notes at this time to avoid putting any extra burden on the healthcare system..
If an employee has been directly exposed to the coronavirus or has recently visited a known high-risk area, may an employer require the employee to leave the workplace for the incubation and/or quarantine period?
Generally, yes. Public health organizations recommend that companies bar employees from coming to the workplace for a minimum of 14 days after a “medium” or “high-risk” virus exposure — this generally means the person has been in close contact with someone who is known to be infected, or has traveled from a high-risk region. In light of these recommendations, employers should work on their ability to have employees work remotely or isolate employees who may have been exposed to COVID-19.
Are employers required to allow employees to work from home upon request due to the threat of the coronavirus?
Generally, no. However, an employer may be required under the ADA to allow employees with immunodeficiencies the option of working remotely. This could be a reasonable accommodation under the ADA.
May employers require employees to work from home as an infection-control strategy?
Yes, an employer may choose to have its employees work remotely from home. Employers who require or encourage employees to work remotely should develop a policy for tracking working time for hourly non-exempt workers and restricting work periods. Otherwise, employers are subjecting themselves to an increasing risk of unpaid wage and overtime claims.
In the event that an employee contracts the coronavirus, can employers discuss this fact with others in the workplace?
No. Employee medical privacy protections prohibit disclosure of personal medical information. However, the CDC has issued guidance recommending that, if an employee is confirmed to have COVID-19, employers should inform fellow employees of their possible exposure to the disease in the workplace, but maintain confidentiality of the infected employee, as required by the ADA. The CDC recommends that employees who are exposed to a co-worker with confirmed COVID-19 should refer to CDC guidance for how to conduct a risk assessment of their potential exposure, which is available online and periodically updated as the CDC learns more about the virus.
What if an employee has a sick family member at home who has contracted the coronavirus?
According to the CDC’s guidance materials, employees who are well but have a sick family member with COVID-19 should notify their supervisor and refer to the CDC guidance for how to conduct a risk assessment of their potential exposure..
May employers require employees to self-report illness or symptoms if they believe they may have the coronavirus?
Yes. If an employee has symptoms of the coronavirus and has reason to believe he/she may have been exposed to somebody with the coronavirus or has other reason to believe that he/she has the virus, an employer may require an employee to self-report the symptoms..
May employers require that older people, or those with compromised immune systems and generally more at risk for the coronavirus, to work remotely?
No. Employers should not single out or treat individuals from its workforce differently based upon age or suspicions that someone may be more at risk for the virus. However, employers certainly may allow employees who are more vulnerable to work from home.
What benefits are available to employees who are infected with the coronavirus, or residing with someone infected with the coronavirus?
This depends on the employer’s particular benefits plans and policies. Generally, however, employees may be able to use accrued paid sick leave, PTO, or vacation during periods of time away from the office due to illness. For covered employers who are required to comply with FMLA, employees may be eligible for protected unpaid leave under the FMLA and corresponding state laws. Infected employees may also be entitled to short-term disability, depending on eligibility requirements of the employer’s plan. There also are discussions of temporary federal paid sick leave, but that statute has not yet passed. We will continue to monitor for developments.
Will workers’ compensation cover the coronavirus if the employee is exposed to it on the job?
It remains uncertain in Arizona whether contracting COVID-19 at work will be considered a compensable occupational illness for purposes of workers’ compensation coverage. Absent legislation or regulations in this area, it most likely will not be a qualifying event for purposes of workers’ compensation coverage across general industries. However, if there is something peculiar about the work that increases the likelihood of getting the virus (such as working in the healthcare industry), it may ultimately be deemed a compensable occupational illness. State laws and particular workers’ compensation policies will generally govern eligibility requirements. For example, on March 5, 2020, the Governor of the State of Washington announced workers’ compensation coverage to include quarantined healthcare workers and first responders in Washington.
DISCLAIMER: The above FAQs do not constitute legal advice, and are based upon information known at the time this article was written. This is an area that is constantly changing. Employers should continue to check for updates from the CDC, OSHA, EEOC, and other government agencies for additional guidance. Different state and municipal laws may also require additional restrictions that those discussed in this article. Employers should consult with legal counsel about their particular situations, and decisions should be made based on a case-by-case basis.
Amy Abdo, Richard Dreitzer, Ayan Jacobs, Ann Morgan, Travis Pacheco, Bruna Pedrini, Shannon Pierce, Jessica Post and Janice Procter-Murphy are attorneys at Fennemore Craig, P.C.
are attorneys at Fennemore Craig, P.C.
