With confirmed cases in New Hampshire, Massachusetts, and Rhode Island, it appears the 2019 Novel Coronavirus (“COVID-19”), often referred to as the “Coronavirus,” may present significant issues for employers throughout New England. Employers need to consider how to best promote the health and well-being of their employees, within the bounds of applicable laws and regulations. 

Stay Up-to-Date 

The Center for Disease Control (“CDC”) has issued guidance to businesses and employers to plan and respond to COVID-19: https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/guidance-business-response.html. These recommend strategies for employers to use now include: (1) actively encouraging sick employees to stay home; (2) separating employees from other individuals when they arrive to work with acute respiratory illness symptoms (i.e., cough, shortness of breath) or become sick during the workday; (3) emphasizing respiratory etiquette and hand hygiene; (4) performing routine environmental cleaning; and (5) advising employees take certain steps before travelling, including by reviewing government guidance and recommendations for international travel. 

As regarding respiratory etiquette and hand hygiene, the CDC has published various health promotion materials that can be distributed to employees, and posted in common areas or restrooms: https://www.cdc.gov/handwashing/materials.html. 

The EEOC has published guidance on how to handle a pandemic in the workplace with relation to the Americans with Disabilities Act (“ADA”): https://www.eeoc.gov/facts/pandemic_flu.html. 

The Occupational Safety and Health Administration (“OSHA”) has also published COVID-19 safety guidelines: https://www.osha.gov/SLTC/covid-19/. OSHA notes that while transmission of COVID-19 in the United States is not widespread as of yet, exposure risk may be elevated for certain workers, such as those in healthcare, air travel, waste management, and other occupations that interact with potentially infected travelers from abroad. 

Additional useful guidance on COVID-19 is available here: 

• World Health Organization (“WHO”): https://www.who.int/emergencies/diseases/novel-coronavirus-2019;
• Vermont Department of Health: https://www.healthvermont.gov/response/infectious-disease/2019-novel-coronavirus;
• New Hampshire Department of Health and Human Services: https://www.dhhs.nh.gov/dphs/cdcs/2019-ncov.htm.

Review Applicable Employment Polices & Procedures

In addition to staying up-to-date on recent developments related to COVID-19, employers should act to review applicable employment policies and procedures, including, but not limited to any on sick and family leave, health and wellness, telecommuting, and emergency preparedness. 

Employers may also consider issuing a statement to employees specific to COVID-19, emphasizing, among other things, healthy workplace habits, reaffirming the employer’s leave policies, describing how employees may prepare to work from home, and otherwise outlining the employer intends to protect employees and the workplace in the event of wider spread infections where we live and work.

Additional Questions for Employers

As with many situations involving human resources and employees’ health and well-being, each situation presents its own facts and should be reviewed on a case-by-case basis. Below are commonly asked questions, though, providing general guidance on how to respond to certain situations. 

1. May employees use sick leave or other paid time off for COVID-19?

Yes. 

If an employer is subject to the Family Medical Leave Act (“FMLA”), than any employee diagnosed with COVID-19 may be eligible for unpaid leave under the Family Medical Leave Act (“FMLA), no differently than the employee would be to attend to any other “serious health condition,” as certified by a healthcare provider. Eligible employees may also use FMLA leave to care for a spouse, child, or parent with a “serious health condition.”

When an employee has taken FMLA for their own “serious health condition,” an employer may require a fitness-for-duty certification upon return from leave. Similar certification may also be required of employees on caregiver FMLA leave, but only where the employer has a uniformly applied policy of requiring such certification under all circumstances.  Otherwise, employers should not ask about an employee’s own medical status, unless the employee presents a “direct threat,” as explained in response to the below question.  

If an employer offers short-term disability insurance, employees may also be eligible for these benefits. Under any circumstances, employers are encouraged to consult with legal counsel to ensure compliance with all applicable laws and compliance with the employer’s internal policy documents.

While New Hampshire has not mandated employers provide employees with paid sick leave, in Vermont, as of January 1, 2019, under the Vermont Parental and Family Leave Act (“VPFLA”) all employers have been required to implement paid sick leave policies, providing employees at least one hour of paid sick leave for every 52 hours worked, with an accrual cap of no less than 40 paid sick leave hours. Many Vermont employers have complied with this requirement by offering a lump sum of paid sick leave at the beginning each calendar year, or by allowing employees to generally use their paid time off for sick-related reasons, which must include care for an employee’s family members. 

2. May an employer require an employee to take leave?

Under the appropriate circumstances, employers may send home a sick employee or prevent them from coming to work if they have an objective, reasonable belief the employee’s ability to perform the essential functions of their job is impaired, or the employee presents a direct threat to the health or safety of others in the workplace.  Generally speaking, any “direct threat” analysis depends on: (i) the duration of the risk, (ii) the nature and severity of the potential harm, (iii) the likelihood that the potential harm will occur, and (iv) the imminence of the potential harm. In conducting any “direct threat” analysis related to COVID-19, employers should rely on the CDC and WHO guidelines listed above in order to properly assess the risk presented by an employee’s presence at work.

If an employer sends home a sick employee or prevents an employee from coming to work, the employer may consider making telecommuting or remote work available. As a precautionary measure, employers may want to act now to ensure employees are able to access any existing remote work systems.

In Vermont, if a non-exempt or hourly employee is sent home or prevented from coming to work, employers are not required to pay the employee for the unworked time. However, in New Hampshire, if the employee shows up to work as scheduled, the employer must pay him or her for a minimum of two hours of work. If the employee performs remote work, the employer is required to pay the employee for all hours worked. Employers should ensure they have the means to accurately track the time spent by hourly employees working from home. Additionally, as noted in response to the above question, employees may be eligible to take sick leave or other paid time off. 

For exempt or salaried employees, employers will generally continue the employee’s pay during any period of absence. There are limited circumstances under which an employer may deduct a salaried employee’s pay during the employee’s absence. Employers are encouraged to consult with counsel, however, before making any such deduction. 

3. What if an employee wants to stay at home, even if they do not have COVID-19?

If an employee does not have a “serious health condition” entitling them to FMLA leave and is not otherwise ill, employers should rely on their own policies and procedures to determine whether the employee may take time off from work. Under OSHA guidelines, however, even if an employee does not have paid time off available to them, employees cannot be retaliated against for staying at home if they have a reasonable belief reporting to work will pose an imminent and serious danger to the employee’s life or health. Again, employers are encourage to consult with counsel if presented with these circumstances.

Additionally, in Vermont, while employers are not legally required to allow remote work, the law does require that employers at least consider in good faith whether they can accommodate any remote work request. If an employee presents a remote work request in writing, Vermont employers must provide a written response to the request. 

4. If an employee is diagnosed with or exposed to COVID-19, can an employer notify coworkers?

The CDC guidelines linked to above state that if an employee is diagnosed with COVID-19, employers should inform fellow employees of their possible exposure to the disease. Employers may ask, but cannot require, that the affected employee allow the voluntary disclosure of their identity. Without this consent, employers must be careful to protect the confidentiality of the affected employee, as the Americans with Disabilities Act (“ADA”) and other medical privacy laws generally prohibit employers from disclosing employees’ confidential medical information. Employers may generally inform the employee’s coworkers that they may have recently been in contact with an employee who tested positive for COVID-19, and recommend that the coworkers monitor themselves for symptoms and seek medical treatment as needed.