By Attorneys Aaron Hilligas & Ann Smisek
Can an employer ask an employee if they have the coronavirus?
The Occupational Safety and Health Act (OSHA) requires employers to furnish "employment and a place of employment which are free from recognized hazards that are causing or likely to cause the death or serious harm to . . . employees." Accordingly, employers can ask employees if they have any reason to believe the employee may have a health concern that may put others at risk at work. This general question may be asked of any and all employees. We suggest asking employees to self-report if they know they have been exposed to a contagious condition such as coronavirus or the flu. More particular questions may follow depending on the nature of the employee's answer and/or when employees are known to have been exposed or engaged in travel to higher risk locations.
What should an employer do if its employees share personal health updates through work e-mail?
It is reasonable for employees to communicate pertinent health related information to those who need to know. For example, employees may contact their supervisors to report that they may be ill and therefore absent. Employees should not use work email systems for broadcast messages to others without authorization. Also, employers should not send broadcast messages to all staff with information or updates about any specific employee's health condition or possible exposure. Any information sent through email should be general and not identify what specific employees have been exposed or are quarantined, etc.
How should an employer handle employees shaming or harassing one another due to illness?
An employer should respond to this kind of mistreatment of others at work just like any other form of workplace bullying and harassment.
Are there any equal employment opportunity (EEO) concerns related to the coronavirus?
Yes. As always, workplace decisions need to be based on legitimate business-related reasons; not fear or irrational assumptions. Try to treat employees uniformly with respect and common courtesy. Be fair. Make individual distinctions from standard practices only when based on legitimate individual differences in circumstances. Employers are not required to make reasonable accommodations for employee fears of exposure. But employers should emphasize the safety and precautionary measures to protect themselves and others (handwashing, hand sanitizer, cleaning and disinfecting regularly).
EMPLOYEES AND THE CORONAVIRUS
What can an employer tell employees if an individual employee has tested positive for the coronavirus?
Do not make broadcast reports to others about any particular employee's condition. An employer should work with local public health officials and only state something about an individual employee if public health officials direct the employer to do so.
What can/should an employer do if an employee has been in contact with someone who has the coronavirus?
Obtain factual information about the circumstances suggesting that the employee was exposed. Consult with your local public health officials. Provide them with specific information, and then follow their guidance. Depending on the circumstances, some options include asking the employee to voluntarily self-quarantine and use their paid leave during this time. An employer could alternatively mandate a quarantine and put the employee on paid administrative leave during this time. Finally, an employer could send the employee to be evaluated by an employer-designated health care provider at employer expense prior to having the employee return to work. In this situation, the employee would need to be paid for their time attending this appointment prior to returning to work. Employers should consult with counsel to determine which approach is most appropriate.
What can an employer do if an employee is sick? Can the employer require the employee to go or stay home?
If it appears an employee is sick enough that they will not do their best at work, or they may make others sick at work, employers should immediately send the employee home on sick leave. An employer may also restrict an employee from work until the illness (and the risk of making others ill) is passed. Although it is legal for an employer to require an employee to provide a return to work authorization from the employee's medical provider, employers should note that guidance from the Centers for Disease Control and Prevention (CDC) specifies: "Do not require a healthcare provider's note for employees who are sick with acute respiratory illness to validate their illness or to return to work, as healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely way."
Can an employer measure the body temperature of an employee who is suspected of being ill?
Based on prior guidance from the Equal Employment Opportunity Commission (EEOC) about how employers may respond to a pandemic, the EEOC considers the measuring of an employee's body temperature to be a medical examination under the Americans with Disabilities Act (ADA). However, the EEOC has previously noted if a pandemic becomes widespread in the community as assessed by state or local health authorities or the CDC, then employers may measure employees' body temperature. Nevertheless, employers should realize employees may still be infected with the coronavirus even if they do not have a fever.
Can an employer require a doctor's note before a sick employee returns to work?
Legally, the answer to this question is "yes." But employers are advised not to require such documentation under the current circumstances. Guidance from the Centers for Disease Control and Prevention (CDC) contains the following information for employers: "Do not require a healthcare provider's note for employees who are sick with acute respiratory illness to validate their illness or to return to work, as healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely way." Accordingly, employers should strongly consider relaxing any requirement for employees who are sick with acute respiratory illness due to the difficulty some employees may have obtaining access to medical providers under the present circumstances, and to encourage ill employees to remain out of the business until they are healthy.
Can an employee refuse to report to work out of fear of getting the coronavirus?
Employees may use available paid or unpaid leave consistent with its policy, collective bargaining agreement, handbook, or other regular workplace procedures. If no paid or unpaid leave is available to the employee, employees should be expected to attend work unless given different instructions by their supervisor. If an employee fails to attend work, and fails to utilize available leave, the employer may discipline that employee. There is much discretion here, however. Non-essential employees who are not sick but who are merely afraid to come to work could be excused without pay. Truly essential employees, on the other hand, might be subject to disciplinary action if they refuse to report to work out of irrational fear. Employers should consider identifying duties and positions as essential and non-essential and how operations may be scaled back in the case of staff shortage. Employers may consider whether policy, collective bargaining agreements, etc. allow the employer to create differing leave policies for essential and non-essential employees. In addition, employers should consider whether employees (essential and/or non-essential) will be allowed leave if their children's school is closed. Employers should encourage employees to make alternative child care plans, if possible, that minimizes disruption to the employee's work.
Can employees who are home with illness use sick leave during this time?
Yes. They can use available sick leave.
If employees are sent home for quarantine but are not sick, will they receive normal wages?
Employers may have some authority and flexibility regarding paid leaves within existing policies, collective bargaining agreements, and work rules. Employers may choose to authorize use of paid sick leave for quarantined employees, for example. If no such flexibility is possible, then the employer should decide if paid leave will be provided to these employees. In the alternative, employers may want to consider furloughing hourly employees which would make them eligible for unemployment benefits.
How would the closure of employer offices due to a quarantine impact the health insurance of employees?
We recommend that employers maintain their monthly premium contributions and coverage in the event of a quarantine. Employees should continue their contributions either through payroll or by separate payment.
Can an employer change employee work schedules or transfer employees to help operations continue during a pandemic?
An employer can change employee work hours and schedules and use a variety of other tools to help maintain operations when it experiences a staff shortage due to illness and quarantines. However, the employer will need to ensure that any changes to schedules or transfer of employees are permitted by applicable collective bargaining agreements and existing policies or enter into a memo of understanding if not currently permitted by a collective bargaining agreement. In addition, the employer must track and pay overtime in accordance with the FLSA and collective bargaining agreements, as well as pay other applicable specialty pay, such as out-of-classification pay or on-call pay that may be required by a collective bargaining agreement.
Will an employee who is furloughed or on leave during a quarantine qualify for unemployment benefits?
On March 16, 2020, Iowa Workforce Development (IWD) announced steps to speed up the process to qualify for unemployment benefits related to the coronavirus. Specifically, IWD announced:
- If you are laid off due to COVID-19 or have to stay home to self-isolate, care for family members, or due to illness related to COVID-19, you can receive unemployment benefits, provided you meet all other eligibility requirements. Those requirements essentially include working for wages from an employer who claims you as an employee in six of the last eighteen months and have earned at least $2,500 in the same time period. More specific explanation of benefit eligibility can be found here.
- Claimants can expect to receive payment within 7-10 days after the date the claim is filed.
- Claims that are filed and identified as a direct or indirect result of COVID-19 will not be charged to employers. Fact-finding interviews for these claims will be waived and not be held although employers will be notified of claims received.
- IWD will process unemployment insurance payments to ensure payment will continue to be paid in a timely manner.
SICK LEAVE AND FMLA
How would leave due to the coronavirus affect sick and/or family sick leave balances?
Employees who are ill or who are required by public health officials to quarantine should be considered eligible to use their available sick or family leave. Employees who are not sick or subject to quarantine but who want to be excused are probably not eligible for sick leave or family leave. They may be able to use available vacation or personal days, however.
What happens if an employee has exhausted sick and/or family sick leave and is required to stay at home?
Employees without paid sick leave may be eligible for unpaid FMLA. In ordinary circumstances, employees who remain absent without any available paid or unpaid leave could be subject to discipline or discharge. However, in these circumstances, it may be better to grant more leave to employees rather than have an employee return to work who is still sick or contagious.
Does the FMLA cover absences due to the coronavirus?
FMLA is available for eligible employees who have a "serious health condition" or who are caring for certain family members who are suffering from a "serious health condition." Such conditions include being unable to work for more than three consecutive days and have ongoing medical treatment (either multiple appointments with a health care provider, or a single appointment and follow-up care such as prescription medication). Illness due to Covid-19 likely will be a "serious health condition."
Can an employer restrict employees from traveling out of state for personal reasons?
No, but employees could be warned that their travels might result in them being unable to return to home or work. Such circumstances may result in job-related action. Employers can request employees voluntarily share their personal travel plans to better plan and prepare for possible risks of exposure and spread of coronavirus. However, employers should not require employees to share their personal travel plans.
Should an employer restrict employee travel to conferences and other work-related travel and events?
Consult local public health officials. Employers should seriously re-evaluate and probably postpone or cancel all work-related travel.
If an employee is quarantined in another country, will their pay and benefits continue during that time?
If the employee is authorized and able to work remotely, pay could continue. If not, then the employee may be able to use available paid leave. If no paid leave is available, then pay (but not necessarily benefits) will be interrupted unless and until specific action by the employer makes paid leave available.
This document contains general advice and does not constitute legal advice. If you have any additional questions or would like additional detail on the general guidance provided here, please contact your labor and employment counsel for advice specific to your situation.