With the novel coronavirus (COVID-19) outbreak impacting communities throughout the Northwest, the US, and the world, employers are preparing for a possible widespread impact to their workforce and, at the same time, trying not to foster panic. Our employment law experts weigh in with some guidance on trying to prevent an outbreak in your workplace, how to treat COVID-19 related absences, and what to do if an employee tests positive for the virus.
- Have adequate cleaning supplies throughout the workplace, including hand soap and CDC-approved alcohol-based sanitizers (at least 60% alcohol), and encourage employees to wash their hands frequently.
- Consider whether remote work is feasible. If you expect to have numerous employees work from home, consider a test-run; schedule a day for many people to work from home and see how your systems respond.
- Create an emergency response team across functions, including leadership, IT, HR, office management, etc. The team should stay apprised of developments in your community, be prepared to adapt and implement your emergency response protocols, and respond to employee questions.
- You may require employees showing signs of illness or who have recently travelled to an area hard-hit by the virus (or anyone else, really) to stay home. You control employees’ work schedules; that hasn’t changed.
- When it comes to work-related travel or attendance at large functions, it is prudent to exercise an individualized assessment that takes into account business needs and risk factors.
COVID-19 related absences.
- You may follow your standard pay practices. You do not have to pay non-exempt employees who do not work, even if you told them not to work. (Though see guidance on predictive scheduling issues below.) However, you may, but are not required to, consider paid leaves of absence for absences due to lack of work, illness, or to care for a family member (in an instance where an employee does not have accrued leave). Before doing so, consider other situations in which an employee requested paid leave but was denied, and be prepared to explain the company’s different decisions.
- Be aware of leave obligations under federal and state law. Employee rights may differ depending on your state:
- Under FMLA, in general, having a fever or cough (common symptoms of COVID-19) are not considered serious health conditions triggering FMLA rights. However, with COVID-19 and its possible contagion risk and the response to it from public officials, testing positive for COVID-19 and its consequent health issues may be considered a “serious health condition” that triggers FMLA rights. Additionally, employers may want to consider litigation risk and morale issues before denying FMLA leave to an asymptomatic employee who tests positive.
- In Oregon and Washington, most coronavirus-related absences will qualify under the paid sick leave laws, whether the absence is due to the employee’s health condition, a family member’s health condition, or preventative medical care. In this situation, “preventative medical care” may include when the employee’s medical provider warns against the employee coming into work because the employee is in a high-risk category for complications from COVID-19. Oregon and Washington paid sick leave should also apply if you close the workplace or the employee’s child’s school or place of care closes due to a public health emergency caused by the virus. (Recall, though, that Washington’s paid sick leave applies only to non-exempt employees; local ordinances, such as in Seattle, may differ.)
- In Washington, Paid Family & Medical Leave (WPFML) may cover COVID-19 related absences. A typical bout with the flu would ordinarily not trigger WPFML, but given the careful medical supervision and quarantining surrounding even the mild cases of COVID-19, it is possible that a mild case could still meet the definition of a “serious health condition” and “inability to work” and be covered by WPFML. Given this gray area, employers should treat all cases of COVID-19 as triggering the employer’s notification requirements. When an employee has been absent for 7 days for COVID-19-related reasons (or sooner than that if the employer prefers), the employer should notify the employee of the potential availability of WPFML benefits and refer him or her to the ESD website for more information.
- If you suspect that an employee is abusing your leave policies (e.g., “self-quarantine” really means taking advantage of cheap tickets to Hawaii), consider requiring a doctor’s note saying it is safe for the employee to return to work for absences of more than three days.
- Predictive scheduling or “fair work week” laws may apply. Employers subject to these laws should consult with their Stoel Rives employment attorney to determine whether it must pay an employee if the worker’s shift cannot begin or cannot continue due to COVID-19. An exception to the general rule may apply if public officials have made certain recommendations about workplace practices.
If an employee may have contracted or been directly exposed to COVID-19 . . .
- You likely do not have an obligation to report the employee’s situation to any government office (unless you are a health care organization or facility, or a food service provider; in which case, contact your employment counsel).
- However, you should inform employees that a coworker may have or had exposure to the virus so that they may closely monitor their own symptoms and take appropriate precautionary measures.
- Be careful, however, not to identify the employee. Doing so could be a disclosure of their private health information, but it could also enflame emotions in the workplace and incite panic. Instead, be more generic, for example, inform colleagues who work on the same floor or team that a coworker may have been exposed.
- Be prepared to take protective measures for employees directly impacted by the virus and enforce your polices. We are hearing reports of employees harassing coworkers suspected of having COVID-19 (who was identified through Facebook, not by the employer). Employers should remind employees that harassment due to someone’s actual or perceived medical condition is strictly prohibited and could lead to discipline up to and including immediate termination. Also be prepared to take extraordinary measures if necessary, such as providing security for employees under threat while quarantined.
Finally, expect many questions from employees. Some studies show that employees trust information they get from their employer more than information they get from the news or the government. Stay apprised of the latest developments from your state’s health authority, OSHA, the CDC, and the World Health Organization.