The coronavirus (COVID-19) outbreak continues to develop and several workplace issues have arisen, including issues of quarantine, medical testing and pay. Due to an increase in questions received from proactive employers looking to take steps to protect and educate their employees, HR Works is providing the following frequently asked questions (FAQs) based on current information from the Centers for Disease Control (CDC).
What is COVID-19?
COVID-19, also known as coronavirus, is one of many different types of a large family of corona viruses. COVID-19 has been classified by the CDC as a new or “novel” coronavirus that has not previously been seen in humans. The virus symptoms manifest as a mild to severe respiratory illness.
What are the symptoms of COVID-19?
Reported illnesses have ranged from mild symptoms to severe illness and death. Symptoms may appear 2 to 14 days after exposure and may include:
- Shortness of breath
How does COVID-19 spread?
COVID-19 is thought to spread mainly from person-to-person:
- Between people who are in close contact with one another (within about 6 feet);
- Through respiratory droplets produced when an infected person coughs or sneezes; and/or
- Through contact with infected surfaces or objects.
What can I do to prevent infection in the workplace?
The CDC recommends employers take the following actions to help reduce the spread of the virus:
Actively Encourage Sick Employees to Stay Home
Employees who have symptoms of acute respiratory illness should stay home and not come to work until they are free of fever (100.4° F or greater using an oral thermometer), signs of a fever and any other symptoms for at least 24 hours, without the use of fever-reducing or other symptom-altering medicines.
Employers should ensure their sick leave policies are flexible and consistent with the most recent public health guidance and coordinate with staffing companies and temporary agencies to encourage their sick personnel to stay home through non-punitive leave policies.
Separate Sick Employees
Employees who appear to have acute respiratory illness symptoms (i.e. cough, shortness of breath) upon arrival to work or become sick during the day should be separated from other employees and be sent home immediately. Sick employees should cover their noses and mouths with a tissue when coughing or sneezing (or an elbow or shoulder if no tissue is available).
Emphasize Staying Home When Sick, Respiratory Etiquette and Hand Hygiene by All Employees
Employers should place posters throughout the workplace about staying home from work when sick and avoiding the spread of germs, such as those provided by CDC which may be accessed by clicking here, here and here.
Perform Routine Environmental Cleaning
Employers should routinely clean all frequently touched surfaces in the workplace, such as workstations, countertops and doorknobs using the cleaning agents that are usually used in these areas and following the directions on the label.
Advise Employees Before Traveling to Take Certain Steps
Employers should advise employees to check the CDC’s Traveler’s Health Notices for the latest guidance and recommendations for each country to which they will travel.
Would you advise employers to purchase items as such hand sanitizer and facemasks for employees?
Employers should provide plentiful supplies such as hand sanitizer and antiseptic wipes. However, the CDC does not recommend that people who are well wear a facemask to protect themselves from respiratory illnesses, including COVID-19. Masks should only be worn if a healthcare professional recommends it. A facemask should be used by people who have COVID-19 and are showing symptoms. This is to protect others from the risk of getting infected. The use of facemasks also is crucial for health workers and other people who are taking care of someone infected with COVID-19 in close settings (at home or in a health care facility). Aside from facemasks and hand sanitizer, there are some other hygienic steps that employers can emphasize with employees to prevent the spread of illness in the workplace, which includes the following:
- Cover your coughs and sneezes – Cover your mouth and nose with a tissue when you cough or sneeze. Throw used tissues in a lined trash can; immediately wash your hands with soap and water for at least 20 seconds or clean your hands with an alcohol-based hand sanitizer that contains 60 to 95% alcohol, covering all surfaces of your hands and rubbing them together until they feel dry. Soap and water should be used preferentially if hands are visibly dirty.
- Clean your hands often – Wash your hands often with soap and water for at least 20 seconds or clean your hands with an alcohol-based hand sanitizer that contains 60 to 95% alcohol, covering all surfaces of your hands and rubbing them together until they feel dry. Soap and water should be used preferentially if hands are visibly dirty. Avoid touching your eyes, nose and mouth with unwashed hands.
- Avoid sharing personal items – You should not share dishes, drinking glasses, cups, eating utensils or other personal items with other people. After using these items, they should be washed thoroughly with soap and water.
- Clean all “high-touch” surfaces everyday – High touch surfaces include counters, tabletops, doorknobs, bathroom fixtures, toilets, phones, keyboards, and tablets. Also, clean any surfaces that may have blood, stool or bodily fluids on them. Use a household cleaning spray or wipe, according to the label instructions.
What should I do if I suspect an employee has COVID-19 or if it is confirmed that an employee has contracted COVID-19?
If you suspect an employee has COVID-19 you should act only on a reasonable objective belief that the employee may have been exposed to the virus and is a danger to the workplace.
If an employee is exhibiting signs and symptoms of the virus employers should:
- Advise the employee to avoid contact with others.
- Advise the employee to seek medical care right away.
- Advise the employee that they must not come to work until the symptoms disappear and/or a doctor has confirmed that they are not contagious.
- Offer the employee the ability to work from home or place the employee on leave as necessary. Leaves should be administered consistent with the company’s normal leave policies and/or applicable federal or state leave laws.
If it is confirmed that an employee has contracted the virus:
- Contact the CDC and local health department immediately.
- Offer the employee the ability to work from home or place the employee on leave as necessary.
- Inform other employees of potential signs and symptoms and offer to allow employees to expense their medical test.
- Clean and disinfect the workplace.
- File any workers’ compensation claims necessary, if the condition was contracted at work or in relation to a work-related activity such as business travel.
Can I require an employee to submit to a medical screening?
Updated 3/24/20: The Equal Employment Opportunity Commission (EEOC) updated its Pandemic Preparedness Guidance on March 21, 2020, in response to the COVID-19 outbreak. The guidance instructs employers to take direction from the Centers for Disease Control and Prevention or state/local public health authorities, which would provide the objective evidence needed for a disability-related inquiry or medical examination. The guidance further states the ADA and the Rehabilitation Act do not interfere with employers following advice from the CDC and other public health authorities on appropriate steps to take relating to the workplace. Employers are encouraged to make their best efforts to obtain public health advice appropriate for their location, and to make reasonable assessments of conditions in their workplace based on this information.
The EEOC’s guidance also addresses the permissibility of employers taking the temperature of employees as a precautionary measure. Generally, measuring an employee’s body temperature is a medical examination. Specifically, the guidance states “If pandemic influenza symptoms become more severe than the seasonal flu or the H1N1 virus in the spring/summer of 2009, or if pandemic influenza becomes widespread in the community as assessed by state or local health authorities or the CDC, then employers may measure employees’ body temperature.
However, employers should be aware that some people with influenza, including the 2009 H1N1 virus or COVID-19, do not have a fever.
Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions as of March 2020, employers may measure employees’ body temperature. As with all medical information, the fact that an employee had a fever or other symptoms would be subject to ADA confidentiality requirements.”
Original response: While COVID-19 poses a significant risk of substantial harm if an employee has the condition or is a carrier, employers also must consider the likelihood that potential harm will occur. This determination requires an examination of all relevant information, without consideration of information from unreliable sources and without relying on stereotypes or making general assumptions. Medical screening should be considered only after carefully evaluating all available and credible information about the employee’s potential exposure to the virus. As with any other medical condition, medical screening may only be done if it is “job-related and consistent with business necessity,” which requires “a reasonable belief based on objective evidence” that the employee poses a direct threat to themselves or others due to the suspected medical condition. Employers must show that the employee’s medical condition poses a “significant risk of substantial harm” to the health or safety of the employee or others that cannot be eliminated or reduced by reasonable accommodation.
Is COVID-19 protected under the Americans with Disabilities Act (ADA)?
While COVID-19 is typically a temporary, nonchronic illness and not a “disability” under the ADA, it is important to note that the ADA also prohibits discrimination against perceived disabilities or association with those with actual or perceived disabilities. Further, COVID-19 may cause other medical related complications which may meet the definition of disability. In order to avoid triggering the ADA, it is best to continue to apply leave policies and other workplace polices in a uniform, equitable and neutral fashion.
What do I need to tell other employees if a coworker has contracted COVID-19?
The CDC advises that if an employee is confirmed to have been infected, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the ADA. In these situations, employees exposed to a coworker with confirmed COVID-19 should be referred to the CDC’s guidance on how to conduct a risk assessment of their potential exposure.
Refer to the Employee Communications section of the HR Works Coronavirus Resources page for sample communications.
Should I require all employees to obtain a doctor’s note to validate their illness?
Of particular note, the CDC advises employers to “not require a healthcare provider’s note for employees who are sick with acute respiratory illness to validate their illness or return to work, as healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely way.” Considering this advice, employers may want to consider appropriate adaptations to existing medical release requirements in their sick time and medical leave policies. Employers may nevertheless be faced with circumstances where requiring a medical release is permissible under ADA, federal or state leave laws or based on the individual circumstances of the case. Employers may wish to closely evaluate these issues before acting.
I have employees with chronic health conditions or compromised immune systems. Is it true that these employees are most at risk of infection?
According to the CDC, there is limited information about who may be at risk for severe complications from COVID-19. From the data that is available for COVID-19 patients, and from data for related coronaviruses such as SARS and MERS, it is possible that older adults and persons who have underlying chronic medical conditions may be at risk for more serious complications.
As a result, if an employee discloses that they have a medical condition that causes greater susceptibility to the virus it may be necessary to engage in the interactive process and document that request to help ensure compliance with the ADA.
Would an employee affected by the virus be entitled to Federal Family and Medical Leave Act (FMLA) or any other job protected leave?
Updated 3/24/20: On March 18, 2020, Governor Cuomo signed emergency legislation guaranteeing job protection and pay for New Yorkers who have been quarantined as a result of COVID-19 (coronavirus). The provisions took effect immediately, upon signing. Forms required to apply for Paid Family Leave/disability benefit compensation during a quarantine, are available at PaidFamilyLeave.ny.gov/COVID19. Employers and employees can also find answers to Frequently Asked Questions on this site.
Additionally, the Families First Coronavirus Response Act was signed into law and becomes effective on April 2, 2020. Part of the provisions provide for Emergency Paid Sick Leave due to the employee’s exposure or potential exposure, including if (1) the employee is subject to a federal, state or local quarantine or isolation order related to COVID-19; (2) the employee has been advised by a health care provider to self-quarantine because of COVID-19; or (3) the employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis.
Potentially. For an employee to be eligible for FMLA they must have a “serious health condition” and otherwise satisfy the FMLA eligibility criteria. Although the symptoms of COVID-19 have been reported as flu-like, COVID-19 may be considered a serious health condition depending on the circumstances. Accordingly, an employee who is taking care of a qualifying family member with COVID-19 may be permitted to take protected FMLA leave. However, employees who refuse to come to work out of fear of contracting COVID-19 would not typically qualify for FMLA leave. Additionally, employees may also be eligible for New York Paid Family Leave if the need for leave is necessitated by needing to care for a covered family member who has COVID-19. Other states also have laws which may require job protected leave in the event of a quarantine due to a public health emergency.
A chart summarizing the provisions of both laws is available here.
Do I have to pay employees while on leave?
Updated 3/24/20: It depends. Some employees may qualify for NY COVID-19 Paid Sick Leave or NY Paid Family Leave and short-term disability benefits if they have been quarantined as a result of COVID-19 (coronavirus). Furthermore, effective April 2, 2020, the Families First Coronavirus Response Act will provide Emergency Paid Sick Leave and Emergency Paid Family and Medical Leave for employees with a qualifying reason.
Employees who don’t qualify for paid leave under state or federal law, may be eligible for paid leave based on company policy. Additionally, employees who are laid off or placed on furlough or unpaid leave as a result of a temporary business shutdown may be eligible for unemployment insurance. More information on NYS unemployment insurance is available here.
Original Response: Generally, leave may be considered paid or unpaid and will be subject to your company policy and/or applicable federal or state wage and hour and leave laws. Some employees may also qualify for paid benefits such as New York disability insurance, Paid Family Leave or workers’ compensation. Employers may also permit employees to use their paid time off such as PTO, vacation or sick time during these absences.
What can I do to prepare for the possibility of a widespread outbreak?
Employers should be reviewing and/or developing an effective pandemic plan. Plans should detail how to communicate with employees about staying home from work when they are sick and telecommuting, if necessary. An effective pandemic plan addresses such topics as:
- Workplace safety precautions.
- Employee travel restrictions.
- Provisions for stranded travelers unable to return home.
- Mandatory medical check-ups, vaccinations or medication.
- Mandatory reporting of exposure, such as employees reporting to employers and employers reporting to public health authorities.
- Employee quarantine or isolation.
- Remote work/telecommuting.
- Facility shutdowns.
Employers should also review their leave policies to ensure sick leave, PTO and other policies are flexible and consistent with federal, state and local laws. It may also be advisable to permit employees to stay home to care for sick family members. Businesses should be prepared to be flexible with the application of its leave policies in order to accommodate any changes in CDC recommendations and public health guidelines.
How do I ensure I am complying with OSHA’s General Duty clause?
OSHA’s General Duty clause requires employers to mitigate or eliminate workplace hazards that could cause serious harm to employees. The nature of the workplace affects the type and level of response that may be required. For example, health care facilities and organizations entrusted with care for vulnerable populations may need to implement heightened protection standards.
Remind employees to take common-sense precautions such as staying home if they are sick, greeting others in ways other than handshaking and minimizing the risk of infection by conscientious handwashing and sneezing and coughing into a sleeve or tissue. Provide plentiful supplies such as hand sanitizer and antiseptic wipes and avoid holding meetings in close quarters. Employers should assign someone, often a member of human resources or the company’s safety team, to regularly monitor information posted by the CDC and OSHA for guidance on appropriate measures.
Should I restrict employee business travel?
Although employers generally have broad discretion in determining and enforcing their job requirements, employers must tread carefully when deciding to require an employee to travel to a country with heightened travel warnings. Given CDC’s Level 3 (Avoid Non-essential Travel) and the U.S. Department of State’s Level 4 (Do Not Travel) warnings, employers should limit business travel to China (or other highly impacted areas) to an absolute necessity and avoid travel to any of the affected areas. Due to the COVID-19 outbreak in China, President Trump has issued a Presidential Proclamation limiting the entry of foreign nationals who were physically present in China during the 14-day period before their attempted entry into the United States. And while the U.S. had already instituted a travel ban related to Iran for political reasons, the administration has announced that the ban is being expanded to include any foreign national who has visited Iran within the last 14 days due to the outbreak that has taken place in that country.
Companies with employees working outside the U.S. should check any government or health authority guidance issued by the country in question. Employers also may wish to seek specific advice from employment law experts in that country, especially if the country has a high number of coronavirus cases or if any employee is believed to be at high risk of infection.
Can an employee refuse business related travel?
If an employee notifies an employer that they do not feel comfortable traveling to China (or other highly impacted areas) amid heightened travel warnings, then it is the employer’s responsibility to weigh carefully the employee’s concerns, the risk of actual exposure and the business needs to determine whether an accommodation is possible, such as video conferencing or rescheduling the trip.
In instances where travel is necessary, employers should provide their employees with as much support as possible. For example, consider reimbursing reasonable expenses for personal protective equipment, medicine and even upgrading the employee’s flight class to limit exposure to other passengers.
Can I question employees who have been on vacation about where they traveled?
While questioning employees about their personal travel may raise issues related to privacy and the potential for actual or perceived discriminatory treatment when not done consistently, if an employer is acting in good faith and has a business-related reason for inquiring or a reasonable belief that an employee’s travel plans pose a direct threat an inquiry may be necessary. Best practice is to let employees know that they are free to travel to any destination they choose but if their travel plans include travel to high risk areas, then they may be asked to self-quarantine for up to 14 days upon return (even if they are asymptomatic) to ensure the safety of others in the workplace.
Employers should also designate a point person within the organization to field questions or concerns related to COVID-19 risk avoidance. Employees should be directed to immediately notify that contact if they have been exposed to the virus so that the organization can provide them with appropriate support, such as a temporary work from home accommodation to avoid coworker exposure. The impacted employees should be assured of the confidentiality of information they provide and that sharing of this information is on a need-to-know basis only or as required by law, in the case of government agency notification.
Where can I get more information about COVID-19?
Because COVID-19 is a new virus there is still much to be learned. It is important that employers are receiving fact-based information. The best resource for obtaining factual information on COVID-19 is the CDC’s website. The CDC has issued interim guidance for businesses and employers that is updated daily. It is recommended that employers review the CDC’s site daily to check for new developments and updates. Other sources such as the World Health Organization, OSHA.gov or the New York State Department of Health may also be considered reputable.
Employers should take proactive measures to prepare for any widespread illnesses which may disrupt business continuity. Any actions taken should be based on objective and/or observable facts and information. Have key facts and information available for employees which includes reiterating any applicable company policies as it relates to pandemic illness, sick time, PTO, non-discrimination/non-harassment, workplace safety and hygiene.
Continue to encourage a workplace culture that is one of respect where workers feel comfortable bringing any concerns or issues to the appropriate business contacts.
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