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COVID-19 Coronavirus Update

03.11.2020

The spread of the COVID-19 coronavirus in recent weeks has caused growing concerns for many individuals and employers as organizations prepare to manage their operations in the event the virus impacts the workforce. Koley Jessen has been in regular contact with our clients to address the many issues facing employers and workers in the current climate. Below are a number of recurring questions Koley Jessen has received in recent weeks and general guidance for navigating the employment issues that may arise:

Q:   What should an employer do if an employee contracts the COVID-19 coronavirus?

A:   Current medical guidance suggests all individuals who worked closely with the infected employee in the preceding two weeks should be sent home for two weeks to prevent spreading. Employers should communicate the situation to third parties who may have had contact with the infected individual in the course of their employment. The infected individual should identify the employees and third parties he or she worked closely with in the preceding 14 days in order to protect the individual’s privacy.

Q:   Is exposure to the Coronavirus compensable as a workers’ compensation claim?

A:    It could be. Although the virus is not an “injury,” it is analyzed as a “occupational disease.” In general, to qualify as an occupational disease, an employee must show 1) the illness or disease arose out of and was in the course of employment; and, 2) the illness or disease arose out of or was caused by conditions peculiar to the work. Employers may be able to contest workers’ compensation claims related the COVID-19 coronavirus by demonstrating an alternative means of exposure.

Q:    May an employer require an employee diagnosed with the COVID-19 coronavirus to complete a fitness-for-duty form?

A:    The Americans with Disabilities Act (the “ADA”) restricts questions an employer can ask regarding an employee’s medical status. Specifically, an employer cannot require a medical examination or make a disability-related inquiry under the ADA unless (1) the inquiry or exam is job-related and consistent with business necessity, or (2) the employer has a reasonable belief that the employee poses a “direct threat” to the health or safety of the individual or others that cannot otherwise be eliminated or reduced by reasonable accommodation. Accordingly, any fitness-for-duty form should focus specifically on the Coronavirus threat. Steps should be taken to ensure the fitness-for-duty form does not request a medical diagnosis but instead asks when the employee may return to work.

Q:   Are employees exposed to the COVID-19 coronavirus eligible for leave under the Family Medical Leave Act (“FMLA”)?

A:   An employee’s own serious health condition or the need to provide care for a family member with a serious health condition are FMLA qualifying events. The FMLA defines a “serious health condition” as an illness, injury, impairment, or physical or mental condition that involves inpatient care or incapacity and continuing treatment by a health care provider. Employees diagnosed with coronavirus or medically quarantined because of suspicions of contracting coronavirus may be eligible for FMLA. The FMLA may also apply if an employee must provide care to a child, parent, or spouse (i.e. a qualified family member) diagnosed with the Coronavirus.

If your business is not covered by the FMLA, employees may be eligible for short-term disability benefits through workplace insurance or a state requirement.

Q:    Does exposure to the COVID-19 coronavirus trigger the ADA?

A:    The ADA will not come into play in most cases because the coronavirus is a transitory condition. Although, the ADA is implicated when an illness substantially limits a major life activity (e.g. breathing), and also in circumstances where an employer regards an employee as being disabled.

Q:    Is an employer obligated to pay employees that are not working because of a COVID-19 coronavirus diagnosis or quarantine?

A:    In general, employers are not required to pay nonexempt employees for hours not worked. An employer generally must pay salaried/exempt employee if that employee performs work at some point during the workweek. Employers could have an obligation to continue paying employees such as an employment contract, a collective bargaining agreement, or a policy or practice that could be enforceable as a contract.

For this reason, Koley Jessen encourages clients to review policies and handbooks currently in place to see what, if anything, they say about paying nonexempt employees for hours not worked, and be sure to follow the policies in place. Employers should also review any employment contracts in place for the terms that govern payment of wages. Additionally, employers should review any “time and attendance” and overtime policies and make sure those are followed.

Q:    May an employer ask an employee who appears sick to stay home?

A:    Employers may ask employees to seek medical attention if the employee exhibits symptoms of the COVID-19 coronavirus. Employees who exhibit symptoms may be asked to leave work under most circumstances.

Q:    May an employee refuse to come to work because of fear of infection?

A:    An employee likely cannot refuse to come to work unless the facts indicate the employee would be in “imminent danger” as defined by the Occupational Safety and Healthcare Association (“OSHA”). The threat must be immediate or imminent, which means that an employee must believe that death or serious physical harm could occur within a short time. Most work conditions do not meet this standard.

Additional helpful tips:

  • Review supply chain agreements to determine what recourse your business may have if a supplier stops providing materials essential to your business.

  • Employees refusing to fly? Think of alternative methods (web meetings, car travel, etc.) to allow remote employees to participate in trainings and meetings.

  • Encourage cross-training to ensure a continuity of operations if employees must self-quarantine or are absent from work due to a COVID-19 coronavirus diagnosis.

Koley Jessen continues to monitor the situation and stay current on the issues facing employers in light of the COVID-19 coronavirus outbreak. If your organization has additional questions or concerns as the situation develops, please contact a member of the Koley Jessen Employment, Labor and Benefits Practice Group.

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