On Wednesday, March 11, 2020, the World Health Organization officially designated the Coronavirus (“COVID-19”) as a global pandemic. As our government seeks to limit the spread of COVID-19 in the United States, employers are asking what they can and should do, under the law, to protect their workforces and their businesses from the consequences of the virus.
In determining how to manage the threats posed by COVID-19 in the workplace, employers are encouraged to review the Center for Disease Control’s Interim Guidance for Businesses and Employers, as well as guidance issued by the Equal Employment Opportunity Commission on how to comply with federal employment laws in the event of a pandemic.
An employer’s available responses to the threat of a pandemic depends largely on the severity of the threat. With COVID-19, the U.S. Government’s assessment of that threat level has been in a state of near constant flux since the virus entered the public consciousness. As such, employers should continue to monitor the CDC website for continuing updates and recommendations. With that said, below are answers to certain commonly asked questions that have been addressed by existing guidance.
What Should An Employer Do If An Employee Shows Signs Of Coronavirus?
The current Coronavirus, COVID-19, is an acute respiratory illness, characterized by symptoms such as coughing, shortness of breath, and fever. If an employee calls in sick or reports feeling ill, the employer may ask if the employee is experiencing symptoms of COVID-19, and may (but does not need to) take the employee’s temperature. If this inquiry confirms symptoms of the Coronavirus, employers are encouraged to send the employee home and ask that they seek medical attention and get tested for COVID-19. See Guidance from the Equal Employment Opportunity Commission regarding Pandemic Preparedness in the Workplace and The Americans With Disabilities Act. Employers may also require employees to obtain clearance from a medical professional before returning to work.
What Should An Employer Do Upon Learning That An Employee Has Tested Positive For Coronavirus?
If an employee tests positive for COVID-19, the employer should immediately send the employee home and require that the employee remain on leave until he or she has been cleared to return to work by a medical professional. The employer should also identify all individuals who have worked in close proximity with the employee during the previous 14 days, and send those employees home for a 14-day period.
Importantly, the identity of an employee who tests positive for COVID-19 constitutes protected medical information under the Americans with Disabilities Act and must be kept confidential. As such, an employer should alert the above-referenced coworkers that they were exposed to someone who tested positive for the virus, but must not notify them of that person’s identity.
Must Employers Provide Paid Time Off For Employees Who Take Leave Due To Coronavirus?
Where an employee has accrued and unused paid time off, the employer should permit the employee to exhaust such leave, just as it would do in normal circumstances. As for situations where no such accrued leave exists, neither Federal nor Florida law currently requires employers to provide paid time off in relation to COVID-19. Nevertheless, the federal government is currently considering whether to mandate paid leave during this crisis. Moreover, employers with the means to provide additional paid leave would be wise to consider revising their policies accordingly, as the threat of lost wages may discourage certain employees from self-reporting symptoms of the virus.
Apart from paid leave, employers should also consider modifying their attendance policies to protect employees who would otherwise exhaust all of their permitted leave, paid or unpaid, in connection with the current pandemic. Most attendance policies are not designed to accommodate situations like the current crisis, and if done right, they can be revised in a way that does not negatively impact employers after the crisis passes.
Final Thought for Employers
As stated above, the government’s and public’s understanding of COVID-19 is limited and continues to evolve. Employers should be careful before responding to the virus in ways that may impact their workforce, and should implement changes in close consultation with counsel. Employers are encouraged to contact Jimerson Birr for experienced assistance in navigating this difficult road.