By Anthony Kaylin, courtesy of SBAM Approved Partner ASE
As of March 11, it is reported that the global death toll from the virus is now around 4,300. COVID-19 has infected over 119,500 people across the world and spread to more than 80 countries and territories so far. There have been 30 reported deaths in the United States with over 1,000 reported cases. Two cases are now being reported in Michigan (Wayne County – domestic travel identified and currently in isolation; Oakland County – international travel identified and under review by county officials).
Governor Whitmer has declared a state of emergency to maximize efforts and assist local governments and officials to slow the spread of the virus. “We are taking every step we can to mitigate the spread of the virus and keep Michiganders safe,” said Governor Whitmer. “I have declared a state of emergency to harness all of our resources across state government to slow the spread of the virus and protect families. It’s crucial that all Michiganders continue to take preventative measures to lower their risk, and to share this information with their friends, family, and co-workers.”
1. An employee reports to work with a bad cough and/or fever. What questions can HR or a manager ask of this employee?
Managers can accidentally violate the Americans with Disabilities Act if the query delves into the worker’s medical history. The EEOC has posted a notice detailing what employers should know. The federal agency advised that ADA and Rehabilitation Act rules continue to apply, but they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC about steps employers should be taking.
The EEOC references its guidance for pandemic flu situations for how to handle the current situation with Coronavirus. ADA-covered employers may ask the employees if they are experiencing influenza-like symptoms, such as fever or chills and a cough or sore throat. However, all information gathered about an employee illness must be maintained as a confidential medical record in compliance with the ADA.
“There is that line there with the ADA as to the types of questions you can ask,” Nathan Schacht of Baker Hostetler said. “You can certainly ask someone how they’re feeling and see what their response is to that. But employers need to be very careful to not cross the line and ask those questions that could get into the disability zone.”
2. Can HR send an employee home who comes to work sick?
Yes. The CDC states that employees who become ill with symptoms of illness at work during a pandemic should leave the workplace. According to the EEOC, advising such workers to go home is not a disability-related action if the illness is akin to seasonal influenza or the 2009 spring/summer H1N1 virus, etc. Additionally, the action would be permitted under the ADA if the illness were serious enough to pose a direct threat to both the employee or other employees.
3. Can HR require a fitness for work before allowing the formerly sick employee to return to work?
The EEOC discusses whether under the ADA, when employees return to work, employers may require doctors’ notes certifying their fitness for duty. Yes, according to the EEOC. The ADA permits these inquiries “either because they would not be disability-related or, if the pandemic influenza were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees,” the EEOC said.
4. A public emergency is declared, and work is canceled as a result. Do workers have to be paid?
It depends. One consideration for employers if exempt or non-exempt employees can’t physically make it to their usual workplace is whether they can telecommute, and therefore must be paid the same as if they were physically in the office. But the issue becomes more complicated if workers are stuck at home with no work being performed.
If employees are non-exempt, they generally are only paid for time worked. Therefore, if they are not working, they do not have to be paid. Employers could require, similar to a shutdown, that employees use PTO during this time. Yet, employers need to understand that the Michigan Paid Sick Leave may be applicable as well because the time off is due to a health scare.
For exempt employees, they do not have to be paid if the business is closed for five business days or longer. Michigan Paid Sick Leave may also come into play since this is a health emergency. However, If they work one day in a week and there is no telecommuting options possible, they will have to be paid for the full week. In addition, if they telecommute or work using their phones (emails or taking calls) they will have to be paid.
5. Does OSHA require non-healthcare employees to wear respirators?
At this time, there is no general requirement for non-healthcare employees to wear respirators or other types of personal protective equipment (PPE). The CDC has issued guidance regarding the use of PPE only for healthcare personnel caring for patients with confirmed or possible COVID-19. The CDC stresses: “This guidance is not intended for non-healthcare settings (e.g., schools) OR to persons outside of healthcare settings.” At this time, the CDC is not recommending use of facemasks or any other protective equipment by the general public.
6. What if an employee requests to wear some type of mask as an accommodation?
The CDC does not recommend that people who are well wear some type of mask to protect themselves from respiratory disease, including COVID-19. The CDC does recommend that surgical masks should be used by people who show symptoms of COVID-19. If an employee shows symptoms or has been diagnosed with COVID-19, however, the CDC recommends that the employee be separated from other employees and be sent home immediately, thus negating the need for a mask as an accommodation.
7. What if an employee demands to be removed from sitting next to an east Asian colleague over Coronavirus fear?
This issue runs afoul of Title VII discrimination laws based on national origin discrimination. HR needs to understand some background, like has the employee traveled in the past time to infected areas, etc. but if everything is negative, HR needs to protect that east Asian employee.
“If it’s purely ‘I don’t want to sit next to so-and-so’ who happens to be of Asian descent or some sort of national origin that has been in the news related to a country that has been impacted by this, certainly [employers] can’t just base any decision upon that,” Schacht said. “You certainly just can’t lump someone into a category because of their descent or their national origin because that would cross that discrimination line.”
8. A worker has recently traveled overseas to a country that isn’t a high-risk Coronavirus location. Can the employer ask them to stay home upon their return?
Simple answer is yes. “At this point it sounds funny, but all bets are off in a way. People need to behave in a measured way and a nondiscriminatory way, employers do, but given what’s been going on I think employers can tell employees you can work from home if that’s possible,” Ruth Zadikany of Mayer Brown explains. “I think it’s OK to do it, but it’s not required or necessary because you’re not in a place [that] the CDC has denied as a huge risk factor to be there.”
9. Can an employer restrict travel to all locations under a CDC travel advisory?
An employer may restrict business travel. Employers should continue to consult the CDC’s website: “Coronavirus Disease 2019 Information for Travel” for up-to-date travel notices concerning risk. The CDC advises that employers restrict all nonessential travel to areas with a Warning Level 3, and to exercise caution regarding travel to Warning Level 2 areas.
10. What if employees share that they plan to travel to a high-risk area/country?
In this situation, an employer may advise the employee about the risks of travel, including quarantine thereafter, and should avoid any action that could result in a claim of national origin discrimination. An employer may deny time off for an employee’s personal travel, as long as such a denial is based on the destination, the business cost of a resulting quarantine, or other legitimate business-driven interest, not the national origin of the employee.
11. If one of our employees is quarantined, what information can we share with our employees? Who can we share it with?
If an employee is confirmed to have COVID-19, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace. Employers should not, however, disclose to coworkers the identity of the quarantined employee because confidentiality requirements under law such as ADA and HIPPA as well as local laws.
There are a number of variations of the issues raised above. HR needs to consult with their legal counsel to ensure they are not violating any of the various laws. With the expectation that the Coronavirus spread hasn’t peaked yet in the U.S., HR needs to be vigilant in advising managers not to do anything that would lead to liability during this time period.
Additional ASE Resources
Coronavirus Updates
ASE Coronavirus Updates – ASE has created a Coronavirus web page with important links and information. The page can be found here .
Implementing Virtual Work
Managing a Virtual Workforce – This new ASE course is being held April 2, 2020 in Livonia. Coronavirus is speeding up the implementation of remote work for many organizations. This timely class can help your managers adjust to managing a virtual workforce. Learn more and register here.
McLean & Company – ASE members have access to a suite of tools from McLean & Company to help you implement a virtual work program and prepare managers. Members can access the McLean & Company virtual work tools and resources here. Login via the ASE Member Dashboard is required.
ASE Workplace Flexibility Survey – ASE surveyed Michigan employers to see how they are providing flexible work arrangements to stay competitive. ASE members can view results via their ASE Member Dashboard. Non-members can purchase the survey by contacting ASE Survey Services.
Workplace Flexibility Topics and Insights – This ASE presentation outlines results from the ASE Workplace Flexibility Survey, highlights from McLean & Company virtual work management research, as well as how to implement a virtual work program including best practices. View presentation.
Survey Data Collection
COVID-19 Compensation Practices Survey – ASE is conducting a survey to discover what actions employers are taking in response to Coronavirus with regards to employee compensation. ASE members will receive free results. Non-members that participate in the survey will also receive complimentary results. Participate here.