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Coronavirus alert for employers: It’s about facts over fear, planning over panic

published in McAfee & Taft EmployerLINC Alert | March 3, 2020

As the COVID-19 Coronavirus problem grows, employers will face increasing challenges on a variety of workplace issues. Health experts anticipate travel restrictions, business closings, suspension of schools, and widespread employee absences will occur. Now is the time for employers to consider and plan for such possibilities.

It starts with facts

When addressing a serious problem like the Coronavirus outbreak, overreaction can be a by-product. To avoid panic and ill-advised decisions, get accurate information in the hands of your workforce. The Center for Disease Control and Prevention has issued its Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease. Likewise, the Oklahoma Department of Health maintains a website that provides updates on the Coronavirus disease, which can be found here.

These resources provide excellent information about symptoms, virus transmission, and offer helpful suggestions on avoiding exposure. They can go a long way towards dispelling misinformation and addressing concerns. Take the time to educate yourself and to encourage employees to access these websites. Consider making these websites available through your intranet site and/or posting printouts of the CDC and Department of Health information in the workplace. In addition, you should be emphasizing the need for sanitary work practices and for keeping the workplace as clean and virus-free as possible.

Employment law considerations

A number of employment laws can potentially come into play.

  • The General Duty Clause of the Occupational Safety and Health Act (OSHA) requires employers to provide “employment and a place of employment which are free from recognized hazards that are causing or likely to cause the death or serious physical harm to … employees.”
  • The Family and Medical Leave Act provides unpaid leave to eligible employees for their own serious health condition or to care for an immediate family who is suffering from a serious health condition
  • The Americans with Disabilities Act controls when and what sort of questions an employer may ask about an employee’s health.
  • The Fair Labor Standards Act governs when, and under what circumstances, an employee should be compensated for time not spent working in the office.

Business travel

Currently, the CDC and the U.S. State Department have issued travel warnings for China, South Korea, Italy, Iran, Japan, Hong Kong and Macau. It’s safe to assume that more countries will be added to this list in the future. If your employees are involved in international travel, keep abreast of the status of international travel warnings and consider restricting travel to areas that are affected. The same precautions may be taken for business associates who are traveling from affected areas to your workplace. Don’t be surprised if employees are unwilling to travel overseas. Base any decisions regarding business travel on facts — i.e., travel warnings and restrictions recognized by governmental agencies — not rumors or assumptions. Consider whether there are alternatives to international travel by your employees or business associates.

Making employees stay home from work

Employers can encourage sick employees to stay home. Companies should make sure employees are aware of applicable sick policies.

Can employers send employees home because:

  • They traveled to an area affected by the Coronavirus?
  • They have been exposed to the Coronavirus?
  • Show potential symptoms of the Coronavirus?

Questioning employees about their health and making employment decisions must be based on facts — not fear — and should rest on a reasonable concern the employee poses a direct health threat to themselves or co-workers. You are entitled to ask employees where they have been traveling — for business or pleasure — so long as that question is asked of all employees. When determining whether an employee who has traveled overseas should be excluded from the workplace, base your decision on the most recent travel restriction and warning information available from the CDC and the State Department. Exclusion from the workplace should not last longer than the time it takes for symptoms to develop.

Take a similar approach to employees who have been exposed to the Coronavirus —, employees who have been caring for others suffering from the virus or employees who have visited areas where outbreaks have been reported. For example, first responders in Kirkland, Washington, who attended to patients at a nursing care establishment were placed in quarantine. Employers may question an employee about potential exposure to the virus, and if they have a reasonable belief that exposure did occur, the employee may be excluded from the workplace until the time for symptoms to develop has expired.

Employers should send employees who show symptoms of the Coronavirus home from work.

As the quality and availability of Coronavirus testing kits improves, an employer’s decision to exclude employees from the workplace based on a reasonable concern they pose a health risk will become more clear cut.

Leave and pay considerations

A school closing may impact an employee’s ability to come to work. Keep communications open with employees about such developments and maintain flexibility when applying leave or PTO policies.

If an employee misses work because they are infected by the virus or because they are caring for an immediate family member who suffers from the virus, that absence may be covered by your FMLA policy.

Non-exempt employees (those who are entitled to overtime) are not paid for time they are not working. If a non-exempt employee is home because they have traveled to an affected area, have been exposed to the virus, are exhibiting symptoms, or if there has been a temporary business closure, time at home is not treated as compensable hours worked under the Fair Labor Standards Act. That is true for cases when it was the employer who decided the individual should not be at work. One exception: if the non-exempt employee performs tasks while at home (including but not limited to remote work), that time is treated as hours worked and is compensable.

For exempt employees (those who are salaried and not entitled to overtime), if a business or department closes temporarily on account of the virus, they are entitled to their full weekly salary, unless they have been completely relieved of all duties for an entire workweek. If an exempt employee misses work due to their own illness from the Coronavirus, the employer may deduct from their salary, so long as the employer has a policy for paid sick leave.

We’ll keep you advised

We are following new information daily. As we track these developments, we will continue to provide you with recommendations and best practices for dealing with Coronavirus issues in the workplace.