Coronavirus: Implications for Employers

As the coronavirus (COVID-19) spreads to countries around the world, employers are developing policies and strategies to address issues associated with employees 1) who have traveled to heavily impacted areas or who might otherwise have been exposed or 2) who become sick with COVID-19. While developing these policies and strategies, however, employers should be aware that certain federal laws and agency positions as well as potential litigation risks impact how policies and strategies should be designed and implemented. This Holland & Knight alert sets forth some of the questions employers are asking and the laws, agency positions and risks that employers should be aware of as they develop their coronavirus policies and strategies.

1. Can an employer question employees about recent travel and potential exposure to those who might have the virus and can an employer require employees who have traveled to a heavily impacted area or have family members who may have traveled to a heavily impacted area to stay home during the recommended quarantine period?

Asking employees about or taking action with regard to possible health conditions raises issues under the Americans with Disabilities Act (ADA). The ADA prohibits employers from asking employees about their health and medical conditions. However, the Pandemic Preparedness in the Workplace and the Americans with Disabilities Act guidance issued by the U.S. Equal Employment Opportunity Commission (EEOC) provides that during a pandemic, exceptions to the ADA's restrictions on employer health inquiries allow employers to inquire about an employee's potential infection with the disease and related travel. Pursuant to the EEOC, if the individual does not have the disease, the employer will not be asking about a current medical condition and the ADA will not be implicated. Moreover, if the individual is infected, the ADA's direct threat rule allows inquiries because an employee will pose a direct threat to co-workers and others in the workplace. The EEOC's pandemic guidance also provides that asking employees to work from home as an infection control strategy will not run afoul of the ADA. Moreover, asking employees about the illness or potential infection of a family member will not implicate the ADA, but could be an issue under the Genetic Information Nondiscrimination Act (GINA). Employers should limit questions about family members to recent travel and ask employees about potential exposure to the virus and not specifically about the condition of family members.

The Occupational Safety and Health Act (OSHA Act), which requires employees to protect the safety of employees, is also implicated by coronavirus infections. The coronavirus pages of the Occupational Safety and Health Administration's (OSHA) website state that to protect the safety of employees, employers should implement policies that will result in the "prompt identification and isolation of potentially infectious individuals." OSHA has also indicated that employers may take action with regard to high-risk individuals, which includes those who have traveled to impacted areas or those who have been exposed to the illness.

In light of the foregoing, employers may implement policies asking employees to report whether they or a family member have traveled to impacted regions (i.e., areas with extensive person-to-person transmission of the illness). For those employees identified as having potential exposure, an employer can, and in certain cases must, direct those employees to work from home or not work during the incubation period. Employees who do not want to provide information about travel or potential exposure could also be asked to work from home or not work until it is determined safe for the them to return to work.

2. If an employee will not be able to perform his or her job from home, will the employer be required to continue paying the employee or can the employee be required to take sick leave or be put on disability?

Subject to limited state law exceptions, employers generally are not required to pay nonexempt employees for hours not worked. Thus, nonexempt employees directed by their employer not to report to work and not to work from home generally need not be paid. Those employees may be permitted or entitled to use accrued paid time off, including paid sick leave in jurisdictions with paid sick leave requirements.

Exempt employees are subject to the salary basis requirements of the Fair Labor Standards Act (FLSA) and analogous state laws. An exempt employee instructed to work from home should be paid in the same manner as if the employee reported to work.

The issue becomes more complicated when an exempt employee is instructed to stay home and is not able to work because of the nature of the job. If the employee stays home for the entire workweek, and performs no work during that workweek, the employee need not be paid but may be permitted or entitled to use accrued paid time off, including paid sick leave in jurisdictions with paid sick leave requirements. But if an exempt employee has performed any work during the workweek, the employee will be entitled to be paid for the entire workweek unless the employee is, in fact, infected with the coronavirus. If an employee is infected with the coronavirus, the employee need not be paid and must be permitted to use accrued paid time off including paid sick days.

3. Should employers stop sending employees to the impacted regions?

The Centers for Disease Control and Prevention (CDC) has issued the following travel advisories related to the coronavirus as of the date this alert was published:

• China — Level 3, Avoid Nonessential Travel
• South Korea — Level 3, Avoid Nonessential Travel
• Iran — Level 3, Avoid Nonessential Travel
• Italy — Level 3, Avoid Nonessential Travel
• Japan — Level 2, Practice Enhanced Precautions      
• Hong Kong — Level 1, Practice Usual Precautions

According to this guidance travel to China, South Korea, Iran and Italy should be limited. The CDC encourages employers to comply with these travel restrictions, but the federal government has not required employers to do so. The general duty clause of OSHA Act, however, requires employers to provide a safe work environment. Employers whose business involves travel to China, South Korea, Italy or Iran (or other areas that become subject to travel advisory issued by the CDC) should consider other available options for employees, such as videoconferencing or delaying travel. Further, employers should exercise appropriate steps to protect the workplace from exposure from employees who have traveled to these areas or who have been in recent contact with individuals who have traveled to these areas.

4. Are employers required to notify OSHA of any suspected cases of coronavirus?

OSHA has deemed the 2019 novel coronavirus a recordable illness when a worker is infected on the job. If an employee becomes infected while traveling for work or at work, the employer would be required to prepare and file appropriate reports with OSHA. State laws also have applicable reporting requirements, however, in many states the reporting of disease is again the responsibility of healthcare providers. Employers should be prepared to file appropriate reports with OSHA for those who have been exposed to the virus at work. Employers should also take action to become familiar with any state and local laws that will require them to report incidences of the virus to the state.

5. Should an employer notify other employees of suspected cases of coronavirus?

An employer may provide general information to employees to let them know that someone in the company is infected with the virus to allow employees to monitor themselves for signs or symptoms and quarantine themselves, if appropriate. To comply with the ADA and other privacy laws, employers may not, however, specifically disclose the identity of the infected employee or provide information that will allow other employees to identify the infected individual.

Additional information regarding the proper employer response to the virus can be found on the CDC website.

As the coronavirus situation continues to evolve, Holland & Knight will provide additional guidance for its clients.

DISCLAIMER: Please note that the situation surrounding COVID-19 is evolving and that the subject matter discussed in these publications may change on a daily basis. Please contact the author or your responsible Holland & Knight lawyer for timely advice.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.