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The Employers’ Guide to COVID-19

For updates please visit AIM HR Solutions

HR & EMPLOYMENT LAW | March 8, 2020
By: Tom Jones

COVID-19 raises significant challenges for business. Companies throughout Massachusetts and around the globe face the task of operating their businesses – and protecting employees – amid an undeclared pandemic.

Associated Industries of Massachusetts has been fielding a steady stream of calls from employers asking questions about the medical, management and legal implications of the virus.

AIM cannot provide medical and epidemiological information about COVID-19. That information is available from several sources:

• Anyone with medically-related questions should visit the US Centers for Disease Control (CDC) website.
• Employers with specific questions about travel to countries impacted by Covid-19 should visit the U.S. Department of State website.
• There is also information on the CDC website about travel advisories.
• The CDC has information specifically targeted toward employers and businesses.

AIM can provide information on management issues arising from COVID-19. Here are questions and answers for employers based on information the AIM staff has identified and reviewed. Many of the questions have been posed by AIM members who have called the association’s Employer Hotline.

AIM will review and update this Q & A to include new information as it develops for the duration of the crisis.

Be aware that COVID-19 is a fluid situation with new information emerging daily. Rely on information from credible sources and not rumors from the Internet or unverified sources. Consider designating a member of management to check authoritative websites to ensure you have updated information.

The best general advice for employers is to take a deep breath and act only after you are comfortable that the information you have is correct.

Quarantine/Isolation

Q. Does the government have the authority to isolate or quarantine people in response to COVID-19?

A. Yes. There are both federal laws and state laws that enable governments to take steps to protect people from health-based epidemics. The federal government may, via an executive order from the president, take steps to isolate or quarantine people suffering from the following conditions:

• Cholera
• Diphtheria
• Infectious tuberculosis
• Plague
• Smallpox
• Yellow fever
• Viral hemorrhagic fevers
• Severe acute respiratory syndromes
• Flu that can cause a pandemic

Individual states also have police powers allowing them to take steps – including the use of isolation and quarantine – to protect the health, safety, and welfare of persons within their borders. In the event of a conflict between state and federal law, federal law is supreme.

Isolation separates sick people with a quarantinable communicable disease from people who are not sick. Quarantine separates and restricts the movement of people who were exposed to a contagious disease to see if they become sick. Large-scale isolation and quarantine were last enforced during the influenza (“Spanish Flu”) pandemic in 1918–1919. It is important to remember that not everyone who is quarantined is sick.

Q. Should an employer consider quarantining employees, or having employees remain off work who have recently returned from China, South Korea, Italy, Iran or other virus hotspots?

A. An employer should strongly consider telling employees returning from areas with widespread COVID-19 outbreaks that they should remain away from work for 14 days upon their return. According to the latest information from the CDC, people returning from China will be subject to a higher level of scrutiny during the return process than those traveling from other current “hotspots.”

People returning from Hubei Province (ground zero for the COVID-19 outbreak) are being quarantined and actively monitored for 14 days. People who are returning from China but have not been in Hubei province are being asked to practice “social distancing,” which means staying at home for 14 days. Please refer to the CDC website noted above for an updated listing of countries with outbreaks.

You may also consider telling the employees to self-monitor for any symptoms of COVID-19. If any of these symptoms occur, employees should consider being evaluated by a health-care provider. Even if not symptomatic, employees may want to consult a health-care provider to confirm that they are not infectious before returning to work.

Q. Should I consider quarantining employees who have traveled to countries near China, such as India or Japan, or who may have traveled with individuals from China on a plane or other carrier?

A. Employers should consult the CDC and World Health Organization (WHO) for the most up-to-date information on quarantining employees from countries in close proximity to China. For those who have traveled with individuals with exposure to China or the virus, employers should consider having such employees screened by a health-care provider before allowing them back to work.

Q. Does the company face any legal risk for quarantining all employees from a certain part of the world?

A. Employers must be careful not to make determinations of risk based on race or country of origins. Employer must also maintain confidentiality of people with confirmed COVID-19.
Employee Travel

Q. May I restrict employees from traveling to China?

A. Employers may consider restricting employee travel for business purposes to areas affected by the disease. Employers may also ask employees inform the company if they are traveling for personal reasons so the employer is aware of employees who are going to those areas and who may be exposed to the disease. Employees who travel to China need to be informed that they may be quarantined upon their return. Employees should also be informed that there may not be adequate medical services available if they travel to China or other countries and become ill.

Q. What other options does the employer have in dealing with employee travel?

A. An employer should always check the CDC’s Traveler’s Health Notices (see link above) for the latest guidance and recommendations for each country to which an employee may travel. Advise employees to check themselves for symptoms of acute respiratory illness before starting travel and notify their supervisor and stay home if they are sick. Ensure that employees who become sick while traveling or on temporary assignment understand that they should notify their supervisor and should promptly call a health-care provider for advice if needed.

If an employee is traveling outside the United States, she or he should follow your company’s policy for obtaining medical care or contact a health-care provider or overseas medical assistance company to assist with finding an appropriate health-care provider in that country. If your company does not have an established policy for how to identify and obtain health care in a foreign country, now is the time to establish one. Tell your employees about the steps to take if they travel to a country on the travel advisory list.

A U.S. consular officer can help locate local health-care services. But the US diplomatic services are not medical facilities so you may need to go beyond them to find appropriate local medical care. Another option may be to speak with your US-based health insurance plan to if they have any resources available for your employees while traveling overseas.

Q. Is an employer able to force a 14-day quarantine on an employee who doesn’t visit one of the countries listed? What if an employee goes on a cruise? The company thinks cruise ships may be high risk – can it enforce a quarantine based upon that opinion?

A. It would be difficult to envision a circumstance in which the employer unilaterally establishes its own quarantine without some documented proof from the CDC or other health-care professional that a COVID-19 outbreak occurred on the cruise. There is no evidence that cruise ships per se are a greater source of COVID-19 infection than any other form of transportation. The cruise ships that were in the news for this disease were located in areas where there were reported cases of COVID-19.

Q. What if a company assigns an employee to travel to a country known to have a COVID-19 outbreak and the employee refuses because of concerns for his/her own health and that of his/her family?

A. Employees who reasonably believe in good faith that traveling to China, Italy or other virus hotspots would pose an undue risk to their own health and that of their families should be able to decline assignments in those locations for a period of time. Apart from putting their own health at risk, these employees may have elderly people living in their homes who would be at high risk of serious illness from the coronavirus. These employees could also bring infection into the workplace upon their return. The situation would be less straightforward if an employee refuses an assignment to a country that has not reported a major outbreak of the virus. But even in those circumstances the employer should check carefully to make sure that there are no travel restrictions in that country.

Leaves of Absence

Q. What particular leave laws may apply to employees who are diagnosed with COVID-19?

A. The leave laws that apply will vary by state. The two most likely laws in Massachusetts are the federal Family and Medical Leave Act (FMLA), which applies to employers of 50 or more people, and the Earned Sick Time Law, which applies to all employers and provides up to five days of paid time off per year for people who work for companies with 11 or more employees. Employers who operate in states outside Massachusetts should check local laws to see what, if any, other leave of absence was may be applicable.

Though not required under current state law, an employee diagnosed with COVID-19 may also be entitled to apply for and receive short-term disability benefits under a company short-term disability policy.

Q. Does the Family and Medical Leave Act (FMLA) leave apply for employees or immediate family members who may contract coronavirus?

A. Yes. Assuming that the FMLA applies to the employer (i.e. 50 or more employees for at least 20 weeks a year), COVID-19 would qualify as a “serious health condition” under FMLA, allowing an employee to take FMLA leave if either the employee or an immediate family member contracts the disease. The employee would be entitled to job reinstatement assuming he or she returns to work within the FMLA-authorized leave duration.

Q. What benefits does the Earned Sick Time Leave Law provide to employees?

A. The Massachusetts Earned Sick Time law provides up to 40 hours of job protected paid leave for employees of companies with 11 or more workers. The law applies when the employee or a family member is ill. The definition of family member under the Earned Sick Time Law is broader than under the FMLA. Employers should consult their policy to make sure that they comply with the request for earned sick time if they receive one.

Q. May an employer extend earned sick time from its current 40 hours to a longer amount for the duration of the COVID-19 crisis and then revert to the normal sick time afterwards?

A. Yes. While the Massachusetts Earned Sick Time Law requires an eligible employer to provide up to 40 hours of paid earned sick time per year, the law also permits an employer to be more generous with the earned sick time benefit. If an employer chooses to do that, the employer should be very explicit as to the context within which the extension is occurring so there is no built-in expectation of a longer-lasting benefit.

Temporary Shutdown

Q. Employer decides to close down its operation due to COVID-19 and all employees are put out of work. What impact does the unemployment insurance law have on the situation?

A. If a company decides to  close temporarily and put employees out of work, the employer must provide workers with notice about how to file for unemployment. Assuming the employees are eligible, they may file for UI but by law there is a one-week waiting period before they are entitled to collect any benefits. There may eventually be a waiver of the one-week waiting period as there was following the 9/11 attacks in 2001, but the Department of Unemployment Assistance (DUA) says at this time that the one-week waiting period remains in effect.

It takes anywhere from 21 to 28 days for DUA to process a claim. Another challenge is that an individual must be able and available and looking for work in order to remain eligible for unemployment assistance benefits. And the person must engage in at least three job search events a week.

Another alternative an employer may consider is to opt into the state work-share program, which allows an employer to reduce the workweek by up to 60 percent and impacted workers to file for unemployment insurance benefits and receive a partial payment to offset lost income.

Working Remotely

Q. Is an employer required to pay an employee the company has instructed to remain at home?

A. The answer depends upon many factors, including applicable laws such as the federal Fair Labor Standards Act (FLSA) and company policy.

One key question is whether the employee is classified as exempt or nonexempt under the FLSA.

A nonexempt employee need only be paid for the time she or he performs work. If an employee is sent home or must remain at home as per doctor’s orders or as a result of a company decision based upon travel or potential exposure and cannot work, the employer need not pay the employee. The employee may use his/her earned sick time to receive income for any time off from work due to COVID-19.

The employer may also allow or encourage the employee to use any accrued and unused vacation time, personal time, or paid time off, to ensure continued earnings during the time the person is off work. That approach may create an employee morale problem, especially if the employee has already committed to use vacation time at another point during the year.

The employee may also expect the employer to take some action to make the employee whole. Take steps now to clarify possible confusion or ambiguity in the policy before subjecting someone to it. In today’s world of social media, actions that may be legal but nevertheless leave a bad taste employees’ mouths – such as not paying them after you send them home – could easily cause online backlash against the company.

Exempt employees do not have to be paid if they are kept out of work and perform no work for an entire work week. However, if exempt workers work for part of the week, they would have to be paid for the entire week. The only question is whether the money comes from regular pay, sick leave or personal-time pay.

The dilemma for many employers here is that if the company suffers or permits the employee to work remotely, the person may still be willing to check emails, participate in meetings via Skype or other employment-related activity while in quarantine. If the person does so, the exempt employee must be paid. Remember that not everybody who is quarantined is sick and an exempt employee may be fully prepared to work but can only work from home because of the circumstances.

Q. May we require employees to work from home even if we don’t have a work remote policy?

A. An employer may always create a new policy or modify an existing policy based on the needs of the business. Every employer should have a provision in its handbook that reminds employees that policies may be amended as needed by the employer. An employer could use the opportunity to establish an ongoing remote-work policy or could adopt one on an emergency basis.

If your company has never had a remote work policy, it will be important to train your managers on how to manage people remotely and your employees on how to provide documentation about their work performance while working remotely. At the same time, managers will need to be empathetic to any employee who is home due to COVID-19 because they are likely to be dealing with multiple sources of stress and anxiety, including issues such as closed schools and/or eldercare.

Workers Compensation

Q. Is an employee who contracts COVID-19 eligible for workers’ compensation benefits?

A. A small universe of employees may qualify for benefits under the Massachusetts workers’ compensation statute. Examples may include people who contracted the disease in the course of their employment, such as health-care workers who are working with COVID-19 patients or perhaps somebody sent by the company to China for work-related activities. In general, if an employee incidentally contracts the disease from a co-worker, there likely will be no workers’ compensation liability.

Q. Must the employer pay its employees disability benefits if they contract COVID-19?

A. It depends on the nature and scope of your company policy. Employers should review the scope and limits of coverage in the benefit plan to ensure they are aware of potential liability.

Federal Guidance

EEOC/ADA

Q. Does the Americans with Disabilities Act (ADA) restrict how I interact with my employees due to COVID-19?

A. ADA regulations strongly limit an employer’s ability to ask directly about an applicant’s or employee’s disability and whether that disability poses a direct threat. However, the Equal Employment Opportunity Commission (EEOC) recognizes an exception when it comes to pandemic influenza.

The EEOC has issued guidance for employers to rely on in the event of a global health emergency. The guidance states, ” if the CDC or state or local health authorities determine that a pandemic influenza is significantly more severe than a regular seasonal flu, it could pose a direct threat to one or more employees and that determination would justify an employer’s disability-related inquiries or requirement that the employee get a medical examination to determine if the employee posed a direct threat.

The ADA protects qualified employees with disabilities from discrimination. A disability may be a chronic physical condition, such as difficulty breathing. Employees may be entitled to an “accommodation” – such as leave – or be allowed to work remotely for a limited period.

Employees who have contracted the virus must be treated the same as non-infected employees, if the infected employees can perform their essential job functions. If the employee poses a health or safety threat to the workforce, the employer may place the employee on leave.

Q. Is there an obligation to accommodate employees who do not want to work in public-facing positions due to risk of infection?

A. There may be an obligation to accommodate such employees if there is some objective evidence that they could potentially be exposed to individuals who may have returned from China—for example, airport employees who deal with travelers from China. Employees should not be disciplined for refusing to work if they believe that there is a risk of infection because making such a complaint may be a protected activity. If the employer can establish that there is no basis for any exposure to the disease, the employee does not have to be paid during the time period the employee refuses to work.

OSHA

Q. Does OSHA offer any guidance on how an employer should manage potential health emergencies in the workplace?

A. The US Occupational Safety and Health Administration (OSHA) has issued a fact sheet on protecting workers in the case of a global health emergency. The fact sheet recommends that companies train employees on the following:

• Differences between seasonal epidemics and worldwide pandemic disease outbreaks.
• Which job activities may put them at risk for exposure to sources of infection?
• Options that may be available for working remotely, or how to utilize an employer’s flexible leave policy when employees are sick.
• Social distancing strategies, including avoiding close physical contact (e.g., shaking hands) and large gatherings of people.
• Good hygiene and appropriate disinfection procedures.
• What personal protective equipment is available, and how to wear, use, clean and store it properly.
• What medical services (e.g., post-exposure medication) may be available to them.
• How supervisors will provide updated pandemic-related communications, and where employees should direct their questions.

Q. Can OSHA cite an employer for exposing its workforce to COVID-19 without protective measures?

A. It is possible. OSHA regulates safety hazards through its “general duty” clause that applies to “recognized hazards” in the workplace. OSHA will look to the CDC as the authority when issuing such citations. The agency will determine whether the employer’s industry knows that exposure to infected individuals in the workplace is a hazard. If so, the agency would expect the employer to take feasible measures to protect the employees and, if it not does not take such action, the employer could be subject to citation. Employers should conduct a hazard assessment for potential exposures and develop an action plan that includes hazard identification, hazard prevention procedures, employee training, medical monitoring surveillance and record keeping.

Workplace Actions

Q. What are some simple recommendations we can make to our employees as a general guidance on dealing with this issue?

• Stay home if you have respiratory symptoms (coughing, sneezing, shortness of breath) and/or a temperature above 100.4 F.
• Leave work if you develop these symptoms while at the workplace.
• Shield coughs and sneezes with a tissue, elbow, or shoulder (not the bare hands).
• Wash hands often with soap and water for at least 20 seconds or use an alcohol-based hand sanitizer.
• Minimize handshakes in the workplace.
• Make sure bathrooms have adequate soap and towels for employees to wash their hands. Make sure hand sanitizers and wipes are visibly distributed throughout the workplace.
• Make sure that frequently touched employee and common work surfaces such as desktops, computers, countertops and doorknobs are regularly cleaned. Increased cleaning of common areas using standard cleaning agents can also reduce risk of spread of respiratory disease.

Q. We are a consumer-facing business and an employee wants to wear a face mask. Should I encourage this or discourage it, especially if other employees ask for masks as well?

A. Face masks are generally not needed unless people work in the health-care industry. Under the OSHA respiratory protection standard, which covers the use of most safety masks in the workplace, a respirator must be provided to employees only “when such equipment is necessary to protect the health of such employees.”

Likewise, OSHA rules provide guidance on when a respirator is not required: “An employer may provide respirators at the request of employees or permit employees to use their own respirators, if the employer determines that such respirator use will not in itself create a hazard.” In almost all situations, however, there is no recognized health or safety hazard – even when employees work near other people and thus there is no need for a mask or respirator.

The World Health Organization (WHO) has stated that people only need to wear face masks if they are treating someone who is infected with COVID-19. The WHO has also said that wearing masks may create a false sense of security among the general public. Doctors agree that the best defense against COVID-19 and influenza is simply washing your hands. Thus, the consensus is that there are more appropriate measures of defense than wearing a surgical mask or respirator.

Q. Can an employee simply refuse to work without a mask?

A. Given the consensus that face masks are only necessary when treating someone who is infected with COVID-19 or influenza, masks are likely not necessary to protect the health of most employees. Therefore, most employers do not have to provide, or allow employees to wear, a surgical mask or respirator to protect against the spread of COVID-19 or influenza.

The use of the word “may” in OSHA’s respiratory protection standard makes it clear that when a respirator is not necessary to protect the health of employee, it is within the discretion of the employer to allow employees to use a respirator. Accordingly, you are well within the applicable OSHA standard to deny an employee’s request to wear a surgical mask or a respirator in almost all situations.

Absent a legally recognized disability, unique physical condition, or an occupation where employees work directly with those impacted by a condition such as COVID-19 or flu, you are generally not required to allow workers to wear masks at work. If an employer wants an employee to wear a mask, it would be legally required to provide training on how to use and maintain the mask.

Bear in mind that some employees might have medical conditions that are worsened by wearing a mask. One alternative may be to make the masks available — without requiring employees to wear them.

Q. Can a company require employees to submit to having their temperature taken as they enter the workplace? If the company can do, should it?

A. The question raises issues about when “self-help” methods are appropriate for company to use in dealing with COVID-19. Here are some potential issues:

• Observers in the medical field claim that some temperature-taking devices are not guaranteed to be accurate, leading to possible false positives or false negatives about a person’s condition;
• Not everyone who has this iteration of coronavirus has a fever so it may miss some number of potential cases;
• Assuming the human resources person performs the test, the HR person risks becoming sick;
• It may lead to long lines of people at the company door waiting to be screened to get to work.
• The process can increase labor costs, including overtime;
• It may be illegal under the Americans with Disabilities Act, without the declaration of the pandemic.

All that said let’s discuss the issue in little more detail.

From a practical point of view, if the test were to identify someone with a fever, and the person did not drive to work, would the company then be responsible for taking the person home? If so, which employee would do that? And what protections will be put in place for that employee?

Q. Is taking a temperature considered a medical exam?

The Equal Employment Opportunity Commission (EEOC) suggest that taking a temperature is a medical exam. The EEOC defines a medical examination as a “procedure or test that seeks information about an individual’s physical or mental impairments or health.”

In determining whether a procedure or test is a medical examination under the Americans with Disabilities Act, the EEOC has provided guidance as to what factors may be relevant:

• Is it administered by a health-care professional or someone trained by a health-care professional?
• Are the results interpreted by a health-care professional or someone trained by a health-care professional?
• Is it designed to reveal a physical or mental impairment?
• Is it invasive (for example, does it require the drawing of blood, urine or breath)?
• Does it measure an applicant’s performance of a task or the individual’s physiological responses to performing the task?
• Is it normally given in a medical setting (for example, a health-care professional’s office)?
• Is medical equipment used?

In its 2009 guidance on pandemics, the EEOC states that a temperature test is a medical examination within the meaning of the ADA. It is therefore not legal to do so according to EEOC. Employers may measure employee temperatures without violating the ADA only during a pandemic, declared by state or local health authorities or the CDC

Union Contract Issues

Q. What obligations exist to notify or negotiate with a union regarding COVID-19 policies, including leave due to quarantine?

A. It depends on the terms of your collective bargaining agreement. There may be an obligation to negotiate with a union regarding the quarantine policies because they affect the terms and conditions of employment, which include wages and hours at work. Depending on the management rights clause in the contract, an employer may be able to send the employee home but may still have to pay the employee based on the contract.

Privacy

Q. Should I tell other employees if a fellow worker is infected?

A. The CDC has said that if an employee infection is confirmed, employers should tell their co-workers that they may have been exposed to the virus. At the same time the CDC states that the employer should not tell you that person’s name. Federal law requires employers to maintain the confidentiality of the ill person.

Q. Should the company ask for a doctor’s note for an employee returning from a quarantine period who otherwise reports being asymptomatic?

A. The Earned Sick Time law allows an employer to ask for medical documentation when the employee has been out for more than 24 consecutive hours (three workdays) of work or when an employee is returning sooner than that 24 hours and the employer is seeking a fitness-for-duty report as part of the return to work process. But the CDC has stated that asking for medical notes is not recommended for COVID-19.

The CDC recommends that employers not require a note from employees who are sick with acute respiratory illness to validate their illness because health-care providers may be extremely busy responding to other health needs. Such guidance may conflict with employer certifications around leave laws, state sick time laws, and the ADA.

For example, under the federal Family and Medical Leave Act, employers can require certification from an employee’s (or employee’s family member’s) health-care provider based on a serious health condition. In Massachusetts, the sick time law permits an employer to require documentation from a medical provider if an employee is out of work for more than 24 consecutive work hours (typically three consecutive days), or for a sick-time occurrence within the final two weeks of employment.

Similarly, under the ADA, employers are permitted to request notes from health-care providers or can even request medical testing to assess the extent of an impairment if an employee requests a reasonable accommodation under the law. Employers will have to consider whether to suspend such policies in response COVID-19, or whether to continue requesting medical certifications as permitted by applicable law. In either event, employers must maintain consistent policies, and are cautioned not to treat employees with similar symptoms differently.

Just Stay at Home?

Q. Can and should an employer exclude employees and/or visitors and applicants from the workplace?

A. Given the threat this epidemic presents managers shouldn’t hesitate to send employees who present with COVID-19 symptoms home. Likewise, employees or visitors who are symptomatic or at high risk for COVID-19 should be kept separate from staff and helped with arrangements to leave the workplace and obtain medical evaluation while minimizing their public exposure.

Public health organizations recommend that companies bar employees or visitors from coming to the workplace for a period 14 days after a “medium” or “high-risk” exposure to the virus. Visits or return to the workplace can resume after 14 days if no symptoms emerge.

Q. Is an employer allowed to ask candidates that are coming on-site to interview over the next few weeks if they have traveled to China within a certain time period?

A. A company may do this if it asks the same information of everybody coming in for an interview, not just selected people based on appearance or other protected class statuses. One way to handle this might be to put in the response email inviting a person for an interview to inform you if that person has been in a part of the world where COVID-19 has occurred. If so, an employer may consider an alternative arrangement for conducting the interview, ranging from a telephone call to a Skype call.

Q. In anticipation of increased economic activity this summer, we recently arranged for a large number of interviews on-site. Should we still move ahead with them or cancel them?

A. In order to minimize the risk of exposure to your staff and/or to fellow applicants themselves, it may make sense to consider some alternatives. One alternative would be to cancel the interviews for the time being, but another one may be to handle the interviews via Skype or telephone to move ahead with the interview process but minimize the risk in the workplace.

Q. Should we postpone or cancel scheduled conferences or meetings?

A. While those decisions are generally made on a company-by-company basis, in practical terms it makes sense to not send employees to public events, especially if there is a risk of COVID-19 appearing in that area. Any public gathering is likely to increase close interactions such as shaking hands and perhaps other activities that may increase the risk of the disease being spread.

Q. What about sending employees to off-site conferences?

A. Before deciding to send an employee to an off-site conference, confirm the conferences not been canceled as many are being canceled on a regular basis throughout the country and world. If the conference is still being held, each company will have to make a decision in light of potential exposure to its employee(s), difficulty in travel if airlines have canceled or limited flights to that particular area or hotels have closed or limited guest from certain parts of the country, and cost to the business of potentially having someone exposed to COVID-19.

Document current as of March 10, 2020. Subject to ongoing revisions as new information becomes available.