March 9, 2020
On March 5, 2020, the director-general of the World Health Organization warned governments that the continued spread of the novel coronavirus or COVID-19 is “not a drill” and will require significant action to contain the deadly outbreak. The call to action for both governments and employers comes as the global number of people infected by the virus has exceeded 100,000 and over 500 cases have been identified in more than thirty states throughout the United States. While many employers have adopted leave, wage payment, telecommuting, travel, anti-discrimination, disability accommodation and similar policies to manage their workforce, these policies often were not developed with the challenges posed by the coronavirus clearly in mind. This advisory addresses some of the issues presently facing employers and provides guidance to assist with the development and implementation of business continuity plans, as well as strategies, policies, and procedures to protect employees, patients, and other clients in this and future epidemics. Hancock Daniel & Johnson’s COVID-19 taskforce will provide additional guidance as more information becomes available, regulatory action is taken, and issues continue to arise.
Payment of Wages to Exempt and Non-Exempt Employees
As social distancing measures have emerged as a key strategy to slow or stop the spread of the highly contagious coronavirus, employers are considering whether, where and how employees may work, and if they are unable or fearful to work, when they should or must continue to be paid. These issues implicate federal and state wage and hour and leave laws, as well as employment agreements and collective bargaining agreements that establish the terms of employment for some employees. A recent Harvard Business Review employer survey found that nearly 40% of employers have or plan to clarify their pay policies if worksites are closed or employees are furloughed. Understanding applicable legal guidelines, carefully reviewing current policies, adopting any necessary policy amendments or clarifications, and proactive communication with employees are important steps employers should be taking now.
Under the Fair Labor Standards Act (FLSA), nonexempt employees must be paid for time worked but not necessarily for voluntarily or involuntary time off from work. The wage payment requirements for exempt employees, who must satisfy a duties test and be paid “on a salary basis”, are different. To be paid “on a salary basis”, exempt employees generally must receive their full salary for any workweek in which the employee performs any work. However, FLSA regulations permit salary deductions in several circumstances including when an exempt employee is absent from work for one or more full days for sickness or disability and the employee has exhausted all leave available pursuant to the employer’s “bona fide” plan, policy, or practice providing sick leave or paid time off for these reasons. The salaried basis requirements do not allow for deductions from salary due to partial day absences nor due to partial week absences occasioned by an employer’s decision to temporarily close the workplace, as FLSA regulation do not allow salary deductions for exempt employees when work is available. See 29 U.S.C. §541.602(a). It is important to note that FLSA regulations prohibiting salary deductions sometimes do not apply to deductions from an employee’s accrued paid leave. Therefore, if an exempt employee is absent for one or more full days during the workweek, but less than the entire workweek due to the closure of the workplace, an employer may, consistent with its policies, contracts, and collective bargaining agreements, deduct from the employee’s accrued paid leave. In addition to the FLSA’s requirements, employers should weigh the potential employee relations challenges associated with not compensating employees who cannot work due to COVID-19 infection (personally or in their household) or who are directed to remain away from the workplace due to the coronavirus.
Federal and State Employee Medical Leave and Confidentiality Laws
Employers retain their right under most circumstances to require employees to leave the workplace when they are sick. Many of the same actions should be taken for employees who raise a concern of a coronavirus infection and those who present with symptoms of influenza or another respiratory illness. Consistent with the company’s sick leave policies and state and federal laws, the employees may be asked to obtain medical attention and confirmation that they are well before returning to work.
The Family and Medical Leave Act (FMLA) will protect leaves of absence requested by qualified employees who develop a serious health condition or who otherwise satisfy the FMLA’s eligibility criteria (i.e. who need leave to care for covered family members with a serious health condition). FMLA guidance makes clear that the common cold and flu often do not qualify as serious health conditions; COVID-19 cases may or may not qualify depending upon the severity and treatment required. The FMLA does not entitle an employee to leave to avoid contracting the coronavirus nor does it apply if an employer temporarily directs an employee to work remotely or when the workplace is closed. As always, the process employees must use to submit a request for FMLA leave should be communicated clearly and readily available.
Similarly, the Americans With Disabilities Act, as amended (ADAAA) will apply when a qualified employee develops a “disability” as defined by federal law. Protected disabilities include an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. The ADAAA defines the term disability extremely broadly and requests for ADAAA leave should be carefully evaluated.
In addition to requiring that medical information disclosed by an employee or obtained in a disability-related inquiry be kept confidential and reasonable accommodations be provided, the ADAAA limits an employer’s ability to require an employee to undergo a “medical examination.” A “medical examination” is defined as a procedure or test usually given by a health care professional or in a medical setting that seeks information about an individual’s physical or mental impairments or health and they include vision tests; blood, urine, and breath analyses; blood pressure screening and cholesterol testing; and diagnostic procedures, such as x-rays, CAT scans, and MRIs. An employer may require an employee to obtain a medical examinations when: (1) the employer can show that 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. Before adopting new screening practices such as taking all employees’ temperatures or requiring that they self-report such information, employers should carefully weigh their ability to demonstrate that the new practice is job-related and consistent with business necessity or that there is an actual threat to the business which requires this step. Objective evidence, and not stereotypes or generalizations, will be important to support the employer’s actions.
Many states have laws governing employee sick leave and these also must be followed.
Just as employees may request leave due to illness or a desire to minimize the risk of infection, employers may consider directing employees to remain home due to: i) illness, ii) employee or employee family member travel in certain areas where transmission of the coronavirus is widespread and CDC Level 2, 3 or 4 travel restrictions or similar state restrictions are in effect, iii) to work remotely, or iv) temporary workplace closures. Requiring an employee to remain at home due to illness or consistent with official travel restriction guidelines does not violate the ADAAA. Employers should carefully evaluate any requests for accommodations from ADAAA-protected employees including a temporary remote work assignment or protected leave.
President Trump has issued a Presidential Proclamation limiting the entry of certain individuals and CDC travel restrictions also may be used to deny or delay entry into the United States. These restrictions may impact employees, their families, clients, and vendors. Due both to the highly contagious nature of COVID-19 and legal challenges associated with international and domestic travel, many employers are cancelling non-essential travel and turning to technology to allow necessary work to be done by phone, teleconference, or other technology based platforms.
Despite the well documented risk associated with travel to certain areas, employers generally remain reluctant to absolutely prohibit travel by an employee on the employee’s personal time. Employers should educate their workforces on the potential ramifications of travel to restricted countries and even domestic areas however, including mandatory remote work or leave upon returning from such travel. Employers should regularly check the CDC, State Department, and DHS Travel Advisories to ensure they are utilizing the most updated available information when evaluating how to best manage employee travel.
Employers increasingly are receiving requests from employees for remote work or leave based upon concern over potentially contracting COVID-19 from clients or coworkers. Employees may lawfully go so far as to refuse to work when they are in “imminent danger” as that term is defined by federal law. Section 13(a) of the Occupational Safety and Health Act (OSHA) defines “imminent danger” to include “any conditions or practices in any place of employment which are such that a danger exists which can reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.” OSHA discusses imminent danger as where there is “threat of death or serious physical harm,” or “a reasonable expectation that toxic substances or other health hazards are present, and exposure to them will shorten life or cause substantial reduction in physical or mental efficiency.”
At this time, requiring an employee to work does not create an imminent danger in most communities and workplaces. Understanding the employee’s specific concern as well as the most up-to-date public health and company specific information is important if an employee reports concern over imminent danger however. Also keep in mind that the National Labor Relations Act (NLRA) applies to both unionized and non-union workplaces, and it protects employee “protected concerted activity” including discussions involving the terms and conditions in the workplace.
Concerns and Strategies Specific to Healthcare Employers
Healthcare employees whose responsibilities include caring for patients with confirmed or possible COVID-19 should be educated during regular working hours (to the extent possible) and required to adhere to the following CDC recommendations for infection prevention and control, see https://www.cdc.gov/coronavirus/2019-ncov/hcp/caring-for-patients.html, as well as applicable state infection control requirements. The current CDC recommendations include:
- Assess and triage these patients with acute respiratory symptoms and risk factors for COVID-19 to minimize chances of exposure, including placing a facemask on the patient and isolating them in an Airborne Infection Isolation Room (AIIR), if available;
- Use Standard Precautions, Contact Precautions, and Airborne Precautions and eye protection when caring for patients with confirmed or possible COVID-19;
- Perform hand hygiene with alcohol-based hand rub before and after all patient contact, contact with potentially infectious material, and before putting on and upon removal of PPE, including gloves. Use soap and water if hands are visibly soiled;
- Practice how to properly don, use, and doff in a manner to prevent self-contamination;
- Perform aerosol-generating procedures, including collection of diagnostic respiratory specimens, in an AIIR, while following appropriate IPC practices, including use of appropriate PPE;
- Routine cleaning and disinfection procedures are appropriate for SARS-CoV-2 in healthcare settings, including those patient-care areas in which aerosol-generating procedures are performed. Products with EPA approved emerging viral pathogens claims are recommended for use against SARS-CoV-2. Management of laundry, food service utensils, and medical waste should also be performed in accordance with routine procedures;
- If employees have an unprotected exposure (i.e., not wearing recommended PPE) to a confirmed or possible COVID-19 patient, they should be trained to contact their supervisor or occupational health department immediately;
- If employees develop symptoms consistent with COVID-19 (fever, cough, or difficulty breathing), they should not report to work and should notify occupational health services and/or their supervisor consistent with company policies.
Healthcare employers should develop clear notice and reporting systems both for COVID-19 patients and employees. Healthcare professionals who are evaluating a patient for suspected COVID-19 in Virginia have been requested to immediately contact their local health department.
In addition to ensuring compliance with applicable laws, contracts, and policies, employers are necessarily focused on business continuity. It remains uncertain for how long the coronavirus will impact operations and the scope of measures which may be necessary to control the spread of this contagious disease. The Department of Homeland Security has provided numerous resources to assist businesses with planning for ongoing operations in the near and longer term at https://www.ready.gov/business-continuity-plan including practical guidance such as:
- Developing a business continuity plan
- Conduct a business impact analysis to identify time-sensitive or critical business functions and processes and the resources that support them.
- Identify, document, and implement to recover critical business functions and processes.
- Organize a business continuity team and compile a business continuity plan to manage a business disruption.
- Conduct training for the business continuity team and testing and exercises to evaluate recovery strategies and the plan.
Additional resources for business continuity planning include those listed below and more on the Homeland Security website:
- Standard on Disaster/Emergency Management and Business Continuity Programs – National Fire Protection Association (NFPA) 1600
- Professional Practices for Business Continuity Professionals – DRI International (non-profit business continuity education and certification body)
- Continuity Guidance Circular 1, Continuity Guidance for Non-Federal Entities – Federal Emergency Management Agency, CGC 1
- Open for Business® Toolkit – Institute for Business & Home Safety
- Professional Practices for Business Continuity Professionals – DRI International (non-profit business continuity education and certification body)
- GSA’s Recommended Methodology for Securing Alternate Facilities and Worksheet – U.S. General Services Administration
- The Telework Coalition (America’s leading nonprofit telework education and advocacy organization).
The COVID-19 situation is dynamic. Please contact a member of our Labor and Employment, Health Regulatory Boards, HIPAA/Privacy & Security, Risk Management, Insurance, or Licensure, Certification and Enrollment teams with any issues specific to your organization.
The information contained in this advisory is for general educational purposes only. It is presented with the understanding that neither the author nor Hancock, Daniel & Johnson, P.C., is offering any legal or other professional services. Since the law in many areas is complex and can change rapidly, this information may not apply to a given factual situation and can become outdated. Individuals desiring legal advice should consult legal counsel for up-to-date and fact-specific advice. Under no circumstances will the author or Hancock, Daniel & Johnson, P.C. be liable for any direct, indirect, or consequential damages resulting from the use of this material.