As coronavirus puts workplaces and indeed whole states including Illinois into “shelter in place” mode, employers need to respond quickly and sensitively to a host of health-related issues that no one anticipated dealing with as recently as a few weeks ago.
These questions apply less directly to the many employees who are able to work from home during the crisis, but those whose employers remain open and who need to be on site to do their jobs will have to strike a delicate balance with their employers between safety, and performance of one’s job duties (and continuing to get paid).
There are answers to be found to the key questions in statutes such as the Americans With Disabilities Act (ADA), The Family and Medical Leave Act (FMLA) and the Fair Labor Standards Act (FLSA), which businesses should review with their legal counsel.
For starters, what if an employee presents with symptoms of COVID-19, such as fever or breathing difficulties? Especially if the individual has been to a high-risk location, employers are well within their bounds to send that employee home and require that the person stay there for 14 days. If an employee voluntarily discloses that they have tested positive, the response should be essentially the same.
This mandated quarantine to protect other employees from becoming infected is justified under the provision within the ADA that the infected individual presents a “direct threat” to the health or safety of others by being in the workplace—and that there is no reasonable accommodation to reduce or eliminate this threat.
As long as employers are being consistent about how they apply this provision, they should have a reasonable defense against an employee who complains they are being singled out for any other reason, such as their race, or against an allegation that they are being treated as if they are in fact disabled under the ADA.
An employee who voluntarily discloses a positive test result should be asked to provide a list of colleagues with whom he or she has been in close contact for the previous 14 days, and since getting the positive result. The employer should then make sure employees who might have bene exposed to coronavirus are aware of this—without breaking confidentiality by naming the infected employee—and leave the workplace to seek medical treatment and testing.
The FMLA stipulates that those who have received a positive test for COVID-19 qualify for medical leave for what that statute defines as a “serious health condition,” in keeping with OSHA regulations that hold employers must provide a safe and healthy workplace.
Both the ADA and OSHA obligations underscore that employers can mandate any employees who might have contracted or been exposed to coronavirus provide a negative test result before returning to the workplace at the end of the 14-day quarantine, under the general rubric of requiring them to undergo job-related fitness for duty exams.
Whether an employer is required to pay those whom it has required to leave the workplace depends on the employee’s FLSA job classification as well as employer policies. Non-exempt (hourly) workers are paid only for time worked, along with any paid time off policy, such as sick leave, vacation or PTO; state or local law may also impact this. Exempt (salaried) employees may be required to use paid time off but beyond that point, their salary only can be cut for a given workweek if they do not perform any work whatsoever.
Lastly, while employers are welcome to prohibit business travel during the coronavirus outbreak, they cannot stop employees from taking vacations. And employers run a particular risk if they try to stop an employee from traveling to his or her home country, if outside the U.S., or they could face a national origin discrimination claim.
But employers can certainly require anyone who travels, in particular if it’s to a high-risk location, to stay home for 14 days upon returning and then to take present a negative COVID-19 test result before returning to work.
No doubt there will be new sets of questions as this health crisis continues.