- Edward Clough
Re-opening for Business in a Pandemic: Employers' Rights around Covid-19
Nobody wants to catch Covid-19. As shelter orders are eased, and businesses begin to re-open, prudent employers should take steps to reduce the chances of an employee catching or spreading Covid-19 at work. To do otherwise could expose the employer to liability and claims that an employee contracted Covid-19 because of the employer’s negligence in maintaining a safe workplace. Today, we look at some FAQs around employer’s duties and rights in relation to Covid-19 and employees in the workplace.
We are about to re-open our business, what should we plan for?
Central to any re-opening plan is preparing the workplace for returning employees. Accordingly, the plan should address implementing preventative measures to protect employees from contracting or spreading the Covid-19 virus. While the company’s line of business and workplace location will be essential to developing the specifics of the plan, the following things should be considered:
(i) implementing workplace/engineering controls. This may include augmented HVAC filters, installation of barriers or partitions, establishing hygiene facilities and protocols (e.g. handwashing and disinfecting), providing PPE equipment, and reconfiguring the workspace for better social distancing;
(ii) developing or modifying policies and procedures around sick-days and vacation days, tele-commuting and remote work options, and business travel; and
(iii) creating policies around screening and identifying employees for Covid-19 and developing procedures in the event an employee tests positive.
The plan should be developed by a team including input from HR, Legal, IT, Operations, and employee representatives. Getting guidance from external advisors (e.g. public health consultants) may be warranted depending on the circumstances.
Is it legal for an employer to screen employees for Covid-19?
Yes. Employers can require employees to report if they are exhibiting symptoms. (Keep in mind that some individuals may have Covid-19 but be entirely asymptomatic.) In addition, because fever is a symptom of Covid-19, an employer may require its employees to have their temperature taken as a screening measure. However, OSHA recommends that individuals take their temperature at home (and stay home if they’re feverish), rather than commute and then have their temperature taken at the workplace. Employers may have employees tested for Covid-19 because its presence is a direct threat to the safety of the workplace. However, corona virus anti-body tests are not permitted under CDC interim guidelines. An employer may even require returning employees produce a doctor’s note that they are medically cleared to work. However, the CDC discourages this because such documentation may be hard to obtain. Any of the foregoing screenings should be administered uniformly across all employees—in order to avoid the appearance of discriminatory application, and information obtained by the employer in the screening process must be treated as a confidential medical record.
Can an employer make an employee stay at home if they have Covid-19 symptoms?
Yes, the CDC recommends that any employee who exhibits Covid-19 symptoms should stay home. In addition, an employer may also require an employee to stay home if they have had close contact with a Covid-19-infected person, even if the employee is not showing symptoms.
Can an employer make an employee stay at home if they are at higher risk from Covid-19?
No. Although the CDC has identified persons over 65, pregnant, or immunocompromised as at greater risk from Covid-19, such employees cannot be required to stay home on that basis alone.
Can an employee refuse to come to work because someone in their household has a condition that makes them more vulnerable to Covid-19?
No. Although an employee may be entitled to ask for a special accommodation because of their own underlying health condition, the ADA does not mandate that employers entertain an accommodation because a family- or household-member has a health condition. In the event such an accommodation is made, it may be viewed as a policy and should be applied uniformly.
What can an employer do if an employee does not want to come back to work because they are afraid they’ll catch Covid-19? OSHA requires that employers maintain a safe workplace, and an employee can refuse to return to work if they can prove that it is unsafe. But an employee is not legally entitled to refuse to return because they fear contracting Covid-19. If an employer can show that it has done what is necessary to make the workplace safe, then an employee’s refusal to return to work could be interpreted as abandonment or resignation. If, however, an employee’s refusal to return to work is based upon a mental health condition (e.g. PTSD or anxiety disorder) the employee may be entitled to have the employer make reasonable accommodations for the employee. The CDC recommends that employers be as flexible as possible when it comes to accommodating workers who are more vulnerable to Covid-19 and its effects—this includes individuals over the age of 65 and those who have an underlying medical condition.
What should an employer do if an employee contracts Covid-19 or exhibits symptoms?
CDC guidelines recommend that the employee be immediately isolated and sent home. It is not necessary to close the entire workplace, but, if possible, the employee’s work area should be closed off for 24 hours and disinfected.
When is it safe to let an employee who had Covid-19 return to work?
If the employee had symptoms, they may return to work after: (i) 3 days of no fever (i.e. where a fever is defined as a temperature greater than 100.4), without using fever-reducing medication, and respiratory symptoms have subsided, and (ii) 10 days have passed since the employee first showed symptoms. If the employee tested positive without symptoms, or tested negative (i.e. negative on two administered tests with at least 24 hours between tests) then the employee may return 10 days following the test provided that they remain symptom free during those 10 days.
Whatever steps are implemented in re-opening the business, an employer is advised to apply policies and protocols uniformly to avoid any impact that may be viewed as discriminatory. Although ADA rules may not mandate a “reasonable accommodation” for a particular employee, best practices recommend making accommodations if possible. In addition, seek counsel regarding laws and orders specific to your industry and workplace location. Finally, keep in mind that CDC guidelines are updated as the situation evolves and more is learned. Stay safe and healthy.
Disclaimer: The foregoing is based, in part, on CDC guidelines as of the date of publication, these guidelines are subject to change. These FAQs are presented as information, not legal advice. These FAQs are not definitive or exhaustive and do not address all issues related to Covid-19 and the workplace. There may be local or state laws or government orders that apply to your business that are contrary to certain CDC guidelines or the contents of this piece, please consult a licensed attorney to advise about complying with such laws and orders.