COVID-19 Practical Considerations and Guidance for Employers

With the diagnosis of the first cases of COVID-19 in the United States, employers in all industries are seeking practical guidance on how to address workplace illness and infectious disease concerns. In ensuring that they provide a safe workplace for their employees, employers must take into consideration a patchwork of laws concerning employee privacy, antidiscrimination and job-protected leave.

This advisory addresses issues employers should be prepared to consider, including disease prevention measures, workplace attendance and work-from-home policies, and inquiries concerning employees' health status. Employers of healthcare workers and laboratory workers should consult DWT’s advisory specific to the healthcare industry.

Additionally, this information is based upon the current status of a rapidly developing set of facts, so employers should regularly check for updates to the CDC's Interim Guidance for Businesses and Employers as well as guidance provided by state and local health agencies to adjust policies and practices accordingly in consultation with counsel.

Prevention

To prevent further infection, employers should continue to remind employees of the recommendations provided by the Centers for Disease Control and Prevention (CDC) and the World Health Organization (WHO), which includes encouraging employees to wash their hands regularly, practice good respiratory hygiene, and stay home if they are sick or have traveled to an affected geographic area, such as China. Guidance provided to employers will vary depending upon local conditions. For example, as of March 5, 2020, the New York City Health Department "does not currently recommend avoiding or canceling public gatherings, meetings or events," but public health authorities in Washington State’s King County are urging employers to allow employees to work from home.

Employee Absences, Remote Work and Office and School Closures

If they have not yet done so, employers are encouraged to implement plans to address absenteeism due to COVID-19, as well as plans to allow employees to work remotely to prevent the spread of COVID-19. Below are some considerations and recommendations related to paid time off, leave and remote work.

Sick Time/Paid Time Off/Leave

With increased absenteeism and school and work closures due to COVID-19 concerns, employers should remind employees of the sick time and other paid time off benefits that may be available to them. A number of cities and states, including California, Oregon, New York and Washington, have laws that provide employees with paid time off in the event of their own illness, a family member's illness or closure of a workplace, school or daycare facility.

Many employers also provide other paid time off benefits, such as vacation or PTO, which employees may use to mitigate the financial impact of time away from work due to issues concerning COVID-19. Employers should take a flexible approach to application of their paid time off policies to encourage employees to stay home from work if they are ill or if they have an ill family member, as consistent with recommendations provided by the CDC and state and local health agencies.

Some states' family and medical leave laws may also provide income replacement during employees' time away from work to care for their own or a family member's serious health condition related to COVID-19, or to care for a family member who is quarantined due to possible exposure of COVID-19. As many of these paid family leave laws are fairly new, and COVID-19 is an emerging issue, please consult employment counsel in your state for specific questions related to state leave laws.

At the federal level, the Family and Medical Leave Act (FMLA) provides protected time off to eligible employees for the serious health condition of the employee or a covered family member. While influenza does not generally qualify as a serious health condition under the FMLA, there may be severe cases of COVID-19 requiring hospitalization or multiple doctor visits. Under these circumstances, an employee may qualify for FMLA-protected leave. In addition, an individual may also have an underlying condition that may provide a medical basis for leave due to COVID-19 concerns which may be also be covered by the FMLA. Unless covered by a state or local law providing paid leave, FMLA-protected leave need not be paid.

Employers may also encounter asymptomatic employees wishing to self-quarantine out of a concern that they may have been exposed to the COVID-19 virus at some point in the recent past. Such incidents should be addressed on a case-by-case basis, but it is worth noting that the CDC classifies someone who has been in the same indoor environment with but has avoided close contact with a person diagnosed with COVID-19 as being at low risk of contracting the virus.

It is essential for employers to reinforce to employees the importance of balancing vigilance with a reasoned, educated risk assessment and to notify employees of possible exposure to COVID-19 in a manner consistent with guidance from public health authorities. When operational considerations allow, such employees may be eligible to take advantage of an employer’s telecommuting policy (see below) but may not qualify for job-protected paid leave under applicable family or sick leave law.

Remote Work

In addition to providing paid-time-off options to employees to cover absences related to COVID-19, employers should also review and update their telecommuting policies, particularly in areas (such as in King County, Washington) where public health agencies have encouraged employers to allow remote work arrangements to prevent further infection. While it is likely not feasible to provide remote work options to all employees due to specific job duties and operational needs, employers should take the following considerations into account to determine if work from home may be possible:

• Operational requirements;
• Security of work data;
• Technological capabilities and equipment necessary to perform job duties;
• Productivity; and
• Accuracy of records reflecting time worked by non-exempt employees.

Many large employers in areas affected most heavily by COVID-19 have announced that they are encouraging employees who can work from home to do so, and it is likely that this trend will continue for the foreseeable future. Employers should continue to evaluate the conditions specific to their localities and applicable guidance for their regions to determine if work from home is recommended or mandated.

Wage and Hour Considerations

Applicable wage payment laws do not generally require an employer to pay non-exempt (i.e., hourly) employees for time not worked. Thus, if an employee is sent home and does no work at home, the employer need not compensate the employee, with the following exceptions: 

First, an employee sent home because he or she is sick is, by definition, entitled to use any sick time available under the employer's policy or applicable law. Second, if the non-exempt employee is required to stay home but can (and does) work from home, then the employee is entitled to compensation for all time spent working. Third, some states, including California, have "reporting time pay" laws that may require employers to provide pay to an employee on a day that the employee reports to work and is sent home. In addition, exempt employees must be paid their regular salary for any week in which work is performed, with some very limited exceptions.

Under ordinary circumstances, wage payment issues often weigh against an employer’s adoption of a remote work policy for non-exempt employees. Many employers have concluded that, in light of challenges concerning accuracy of time records, productivity and "off the clock" work, non-exempt employees are ineligible to work remotely. However, where considerations of public health warrant, employers may wish to make exceptions to such a policy, including in regions were public health agencies are urging employers to provide remote work options to employees. In that event, employers should provide clear guidance to non-exempt employees as follows:

• Time records are to accurately reflect all time worked.
• Overtime is prohibited and must be approved in advance by the employee's supervisor.
• Employees who work unauthorized overtime will be paid for all time worked but will be subject to discipline.
• The option to work remotely is temporary in light of current circumstances and revocable at the employer's discretion.

Considerations Concerning Discrimination

The CDC's guidance cautions employers against "mak[ing] determinations of risk based on race or country of origin," in order to avoid "stigma and discrimination in the workplace." The guidance instead focuses on employees who demonstrate symptoms of potential coronavirus infection (fever, cough, shortness of breath, etc.), coupled with known exposure to a patient diagnosed with COVID-19 or travel to an affected geographic area with high or elevated risk for COVID-19.

While the spread of COVID-19 is currently limited to certain regions in the U.S. such as the Seattle metro area, those regions are not specific to a race or national origin. On this point, employers may wish to make their employees aware of the information contained in the CDC's page concerning Stigma and Resilience. Currently, the fact remains that most countries – including those in Asia – have not been identified as high- or elevated-risk areas for COVID-19. Simply put, the advent of COVID-19 does not relieve employers of the duty to ensure that the workplace is free of discrimination and harassment on the basis of any protected status, including but not limited to race, national origin and perceived disability.

Testing

Employers should continue to enforce their return-to-work policies for employees who miss work due to sickness. For a number of reasons, it is not advisable for employers to specifically condition an employee's return to work on a negative test for COVID-19. 

First, such a return-to-work policy could be problematic under the Americans with Disabilities Act (or comparable state law) because it could have the practical effect of placing an employee on leave absent objective evidence that the employee’s presence at work constitutes a "significant risk of a direct threat to the health and safety of others." However, employers remain free to enforce policies requiring a health care provider's general documentation that the employee is cleared to return to work, with or without condition, to the extent consistent with applicable law.

Second, such a requirement may unnecessarily tax an already stressed health care system. While COVID-19 test kits are becoming increasingly available in the United States, the CDC "does not recommend testing" for COVID-19 unless there is a reason to suspect that the employee has come into contact with a COVID-19 patient. Also, the NYC Department of Health recommends routine triage unless the employee has flu-like symptoms and has traveled to an affected geographic area or has had close contact with a diagnosed COVID-19 patient.

Accordingly, even setting aside the implications under applicable law, a policy requiring that an employee be tested for COVID-19 may be unworkable in practice.

Travel

Many employers have already restricted non-essential work-related travel at this time out of an abundance of caution. However, employees in positions in which travel is an essential function of the job may nonetheless be required to continue performing their duties. Employers in industries requiring travel may consult the CDC's Information for Travel for up-to-date guidance. Currently, only five countries are at a high or elevated risk for COVID-19, and the CDC considers the immediate health risk low for most people in the United States.

Various state-specific laws prohibit an employer from restricting an employee’s ability to travel for purely personal reasons. For example, many states (such as California and New York) prohibit an employer from restricting lawful employee activity outside the workplace and outside the scope of employment. Other laws, such as the FMLA and state equivalents, require covered employers to allow employees time off to care for sick family members – which may be the reason for an employee's travel to an area affected by COVID-19.

In addition, employers who discipline employees for travel to affected areas may also risk exposure to claims of discrimination on the basis of race, national origin or association with a person with a disability as defined by applicable law. Rather than attempt to restrict personal travel to affected areas, employers may wish to ask that all employees who do so advise their supervisors accordingly so that appropriate measures may be taken, if necessary.

Employers should discuss with employees the possibility that the employee may be asked to self-quarantine upon return from an affected area, even if the employee is asymptomatic.

Practical Suggestions for Employers

• Communicate with employees about the evolving COVID-19 situation and how it is being addressed in the workplace.
• Encourage employees to stay home if they are sick and allow them to use paid time off benefits to cover COVID-19 related absences.
• To the extent feasible, permit employees to work from home in regions where public officials have issued such guidance to prevent the further spread of the COVID-19 infection.
• Provide work from home or paid time off options to employees who are at a higher risk of severe illness due to COVID-19.
• Continue to monitor guidance provided by CDC and state and local agencies in your region to update plans and communications to employees.
• Implement policies and practices based upon recommendations provided by public health authorities. Be prepared to address with facts and accurate information from reliable sources any workplace concerns based upon misinformation.

Resources

The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.

DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.