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COVID-19 is now believed to have spread to at least 114 countries with more than 1,000 confirmed cases in the United States. https://www.cdc.gov/coronavirus/2019-ncov/cases-in-us.html President Donald Trump also announced new travel restrictions for all foreign nationals who have been to the 26 Schengen Area European countries in the last 14 days. Simultaneously, the U.S. State Department has declared a Level 3 Travel Advisory and is recommending people reconsider all international travel. The State Department warned that as the situation evolves, countries may take immediate actions, without notice, in an effort to contain the virus that may limit traveler mobility, including quarantines and border restrictions. Employers should defer to relevant guidance and cancel or postpone all non-essential international business travel.

 This situation is rapidly evolving and employers must continue to frequently monitor guidance from the U.S. State Department and public health organizations (PHO), including the WHO, Center for Disease Control (CDC), and state and local PHO. State and local public health organizations may provide the best information for localized considerations regarding COVID-19.

Employer Guidance for Reacting to the Pandemic

 The Equal Employment Opportunity Commission (“EEOC”) has reminded employers it created Pandemic Guidance in 2009, and it has made clear prohibitions set forth in the Americans with Disabilities Act (ADA) do not interfere with or prevent employers from following the CDC’s Interim Guidance for Businesses and Employers. The Occupational Safety and Health Administration (OSHA) has also put out guidance on Preparing Workplaces for an Influenza Pandemic to assist employers. States and local governments are imposing public health orders that may trump all other relevant laws, especially if quarantines are imposed.

With the escalation to pandemic status, the EEOC’s Pandemic Guidance is now officially in effect. While employers still need to be cognizant of their duties and limitations under the ADA and other applicable law, the standards in a pandemic situation are slightly more relaxed.

Employers should still keep in mind the ADA places general restrictions on the kinds of inquiries that can be made into an employee’s medical status and requests for medical inquiries. Specifically, the ADA prohibits employers from making medical inquiries and requiring medical examinations, unless (1) the employer can show the inquiry or exam is job-related and consistent with a business necessity or (2) the employer has a reasonable belief the employee poses a direct threat to the health or safety of the individual or others that cannot otherwise be eliminated or reduced by a reasonable accommodation.

 Under the ADA, a “medical examination” is any procedure or test that seeks information about an employee’s physical or mental impairments or health. Temperature screenings are considered a form of medical examination. Employers may recommend employees measure their own temperatures to ensure they are asymptomatic before arriving at the workplace. However, employers should not require temperature screenings unless they are job-related and consistent with business necessity or a direct threat exists.

The following factors are considered when determining whether an employee poses a direct threat: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood potential harm will occur; and (4) the imminence of the potential harm. Employers must rely on the CDC’s or another PHO’s assessment of the risk in making determinations. These determinations must be individualized based on the location and configuration of the workplace and the nature of the employer’s business.

Health care workers and employees providing services to the elderly or immune-compromised will be more likely to fall into the direct-threat exception. However, as the situation evolves and the public health authorities (such as the CDC or local/state public health officials) determine community transmission exists, temperature screenings will become more important and, depending on the industry, may be mandated by governmental agencies. Employers should contact legal counsel before requiring medical screenings to determine if they fall into one of the exceptions.

What Employers Can and Cannot Do

• Employers should follow federal, state, and local PHO guidance on the situation, including business travel and limiting large gatherings, conferences, and business events. This information is rapidly evolving, so it should be checked each day (and perhaps throughout the day).
  
  
• Employers may encourage teleworking as a form of reasonable accommodation.
  
  
• Employers may require the adoption of infection-control practices and wearing protective gear, such as regular hand-washing and sanitizing of work stations.
  
  
• Employers may ask employees if they are experiencing influenza-like symptoms, such as fever, coughing, chills, or shortness of breath. However, employers should be cognizant of the fact seasonal illness and allergies may produce related symptoms.
  
  
• Employers may make reasonable inquiries into employees’ exposure to COVID-19, including where the employees have traveled for business or personal travel in the last 14 days.
  
  
• Employers may require employees who are displaying symptoms, have traveled to affected areas, or were otherwise potentially exposed to stay home from work until risk of transfer is eliminated.
  
  
• Determinations on potential exposure and the ability to return to work should be based on the CDC’s or other PHOs’ risk-assessment guidance and should be completed on a case-by-case basis.
  
  
• Employers may establish a voluntary disclosure process for employees affected or exposed to COVID-19 and provide a confidential resource for employees to contact if they wish to disclose personal health information. Employers may only require disclosure if the employee poses a direct threat.
  
  
• If an employee is confirmed to have COVID-19, employers should work with PHOs to notify employees who may have been exposed to COVID-19 in the workplace and should follow guidance from public health authorities in doing so. Generally, public health authorities try to avoid identifying the affected employee, but this practice may be suspended by the authorities depending on the nature of the threat. Employers must continue to provide employees reasonable accommodations under the ADA.
  
  
• Employers may ask employees about the reason for their absence from work.
  
  
• Employers may require employees who have been out of work during a pandemic to provide a return-to-work note. However, employers should be cognizant that doctors and health care professionals may be overwhelmed and unavailable to provide fitness-for-duty documentation.
  
  
• Employers cannot require employees to be tested for COVID-19 unless directed to do so by health authorities.
  
  
• Employers may use ADA-compliant methods for identifying which employees are more likely to be unavailable for work during a pandemic, including employee surveys.
  
  
• Unless specifically instructed by a public health official, regulation or executive order, employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
  
  

Payment for Employees Affected by COVID-19

Employers should defer to federal, state, and local law and applicable employment contracts, including collective bargaining agreements, in determining whether employees are paid for time off if they are sent home. The U.S. Department of Labor recently put out guidance regarding the requirements under the Fair Labor Standards Act (FLSA) during a pandemic.

Under the FLSA, non-exempt employees who are not performing work are not entitled to payment, unless entitled by contract or other relevant laws. As a general rule, if the exempt employee performs any work during the workweek, he or she must be paid the full salary amount. An employer may not make deductions from an exempt employee's pay for absences caused by the employer or by the operating requirements of the business. However, deductions from salary for exempt employees are permissible for absences of one or more full days due to sickness or disability, if the deduction is made in accordance with a bona fide plan, policy, or practice of providing compensation for salary lost due to illness, and for unpaid leave taken by the employee under the Federal Family and Medical Leave Act (FMLA).

If employers require employees to telework/work remotely, employers should be cognizant of recording requirements under the FLSA. Employers should develop a system so employees can accurately record and report their time worked to prevent issues under the FLSA.

To the extent permitted by their policies, employers may require employees to use any available paid time off to cover their leave of absence. Employers should also be cognizant of benefits available under state and local paid-sick-leave laws.

Additionally, President Trump announced a plan to establish a fund for employees and businesses negatively affected by COVID-19, and he has proposed a plan for a payroll tax cut to help alleviate the burden of affected employees. Details on these plans are not yet available.
 

Additional Information

Employers should educate employees on call-off procedures, sick leave availability, and other employer-provided resources. Employers should prepare a response team for the pandemic now and be prepared to be flexible and react to changes quickly. All policies should be applied in a non-discriminatory manner. Further discussion on the application of employment laws in the COVID-19 context is available here and here.

For more information on the impacts of COVID-19 on employment, immigration, or business, please contact the authors or your Dinsmore labor attorney.