The disease caused by the novel coronavirus, known as COVID-19, has been rapidly spreading around the world, including recently in the United States. The most recent guidance from the Centers for Disease Control and Prevention (CDC) states that “it is likely that this virus will cause a pandemic,” and that for most people in the United States, although “the immediate health risk from COVID-19 is considered low . . . [i]t’s likely that at some point, widespread transmission of COVID-19 in the United States will occur.” Read the guidance here (updated March 3, 2020).
The likelihood of widespread transmission makes it important for employers to take proactive steps to reduce workplace risks and to be prepared for possible scenarios arising from the combination of employee health risks and business risks posed by COVID-19. Many employers have begun to respond by establishing interdisciplinary teams to monitor developments, identify business effects, plan steps to address those effects and prepare coordinated communications.
There is considerable useful advice for employers on the CDC website concerning employee education steps, other workplace hygiene initiatives and travel protocols (see here), including links to notices concerning risk levels associated with travel to and from particular locations (see here). Other Goodwin client alerts focus on other potential business effects of COVID-19. This client alert focuses on some expected legal issues involving COVID-19 under federal employment laws by addressing ten existing and anticipated scenarios. Employers should be aware that state and local laws concerning paid sick time, paid family leave and other leaves of absence, short-term disability and privacy, among other topics, may also affect their legal obligations.
We encourage our clients to use this alert to facilitate a more comprehensive dialogue about how to address employment issues related to COVID-19. We would be pleased to assist our clients as they develop their own plans and strategies.
1. What information may an employer obtain from employees to determine which employees are more likely to be unavailable to work in the event of a pandemic?
An employer may survey employees about their potential unavailability if the inquiry does not require employees to indicate whether their unavailability may be due to medical reasons. Under the Americans with Disabilities Act (ADA), disability-related inquiries of current employees are largely limited to inquiries that are “job-related and consistent with business necessity.” The Equal Employment Opportunity Commission (EEOC) states that an employer may survey employees about their potential unavailability to work in the event of a pandemic by listing multiple possible reasons for unavailability, including non-disability reasons (e.g., public transportation disruptions, school or day care center closings) as well as the possibility that the employee or a family member is in a high risk category for serious medical complications. What is critical in preparing such a survey is that it not request that the employee identify which reason may apply, but only whether at least one of the possible reasons applies, including both disability-related and non-disability-related concerns. By not asking which of the considerations may apply, such a survey is not considered to be a disability-related inquiry.
2. If an employer learns that an employee has been in a high risk location for transmission of COVID-19, may the employer require the employee to stay away from work for a quarantine period?
An employee is likely to cooperate with his or her employer’s request to stay away from work if the employee is paid for the time away, either by having the opportunity to work from home or by receiving additional paid time off. However, some employees may insist on being able to return to the office and claim that requiring them to stay home is unnecessary or even discriminatory. Employers can generally establish rules and policies based on their business judgment, but if application of rules or policies has a disparate impact on a particular protected class (such as employees of a particular ethnic background), they could be subject to legal challenge. Furthermore, if the nature of an employee’s job makes it impractical for the employee to work from home and the employer either does not pay the employee or requires the use of accrued paid time off, the employee may challenge the requirement not to report to work.
To challenge the requirement not to report to work, such an employee could claim to be “disabled” for purposes of the ADA. In one case arising from the swine flu pandemic in 2009, Valdez v. Minnesota Quarries, Inc., 2012 WL 6112846 (D. Minn. Dec. 10, 2012), the plaintiff’s employment was terminated after he visited Mexico, where there had been a major swine flu outbreak. He claimed that the termination constituted disability discrimination and that he qualified as disabled because his employer regarded him as disabled. The court concluded that the plaintiff could have qualified as disabled based on the “regarded as” prong of the ADA’s definition of “disability” if the swine flu had been more than a “transitory and minor” condition. Under the ADA, “transitory and minor” conditions do not support the existence of a disability under the “regarded as” prong. The court held that since the swine flu resulted in effects akin to regular seasonal flu, it was transitory and minor. Had it been a more serious illness (as COVID-19 may be), the plaintiff could have been qualified as disabled.
Assuming that an employee who may have been exposed to COVID-19 is regarded as disabled, the employer could nevertheless elect not to have the employee report to work and not pay the employee if the employee’s presence would be a “direct threat” for ADA purposes. A “direct threat” under the ADA is a “significant risk of substantial harm” to the health or safety of the employee or others that cannot be reduced or eliminated by reasonable accommodation. Whether the employee poses a “significant risk” by, for instance, having been in a high risk area, depends on available information concerning public health risks associated with the potential exposure. If under the circumstances there would be a significant risk of infecting other employees, the employer should be able to require the employee to stay away from work for as long as the significant risk continues, provided that the employer bases its determination on objective facts concerning relevant factors, such as the likelihood, severity and imminence of harm. If the employee could perform the job’s essential functions remotely, the employer could be required to provide the opportunity to work remotely as a reasonable accommodation. However, if working remotely is not feasible given the nature of the job and the employee’s presence would pose a significant risk to other employees, then the employer would have no pay obligation.
3. Could the employer require the same employee to be tested for COVID-19 as a condition of returning to work?
Yes. Job-related fitness for duty reports may permissibly be required under the ADA. However, the EEOC recommends that if health care resources are strained due to pandemic-related demands, an employer should consider modifying its requirements to accept, for instance, a brief confirmation by a clinic of a negative test result.
4. If public health officials recommend quarantining people who have been in certain locations, may an employer rely on that guidance to require employees to disclose whether they have been in those locations?
Under the ADA, disability-related inquiries of current employees are limited to fitness for duty inquiries and other inquiries that are “job-related and consistent with business necessity.” However, based on EEOC guidance, an inquiry regarding whether an employee has been in a particular location is not a disability-related inquiry. Therefore, an employer could make such an inquiry without violating the ADA.
5. If an employee who is out of work discloses to the employer that he or she has flu-like symptoms, may the employer inform other employees of the reason for the employee to be out of work?
Under the ADA, employers may not generally disseminate information about an employee’s medical condition or history, including the fact that the employee shows symptoms of an illness or has been diagnosed with an illness. The employer here could seek the employee’s permission to disclose such information to others. However, if the employee refuses permission to make such a disclosure, the employer’s disclosure would likely constitute a disclosure of disability-related information in violation of the ADA. A more limited disclosure to supervisors and managers regarding necessary work restrictions or accommodations would be permissible under the ADA, even without the employee’s permission (assuming that the supervisors and managers maintain confidentiality). Employers should also consider guidance from the CDC and state and local departments of public health concerning the type and scope of notification to co-workers.
6. If the employee instead discloses only that he or she has been in a high-risk location and agrees to stay out of work, may the employer inform other employees of those facts?
It would be preferable to share information about an employee with the employee’s express permission. However, if the employee objects and the employer reasonably believes it is important to share the information, that information should not qualify as protected from disclosure by the ADA. Neither the location where an employee has visited nor the fact that an employee has agreed to stay out of work is medical information. Therefore, it is not subject to ADA protections from disclosure. While an employee may assert state law privacy rights, under at least some state laws, assessing workplace privacy involves balancing the privacy interests of the employee against the legitimate business interests of the employer. In the face of a public health crisis, that balance would often favor the employer.
7. If an employee has been out of work for at least several days due to a claimed illness and seeks to return, may the employer require the employee to provide sufficient information to assess whether the employee has been infected with COVID-19?
Inquiries concerning the reason for an employee’s absence are permissible under the ADA, provided that they relate to the employee’s reason for missing work or fitness to return, including whether the employee’s return would post significant risks to other employees. Note that under some state earned sick time laws, there are restrictions on medical inquiries, including physicians’ return to work certifications, if an employee has not exhausted available earned sick time before his or her return. In addition, if an employee has taken a leave of absence under the Family and Medical Leave Act (FMLA), there are restrictions on what medical information the employer may obtain concerning the absence and how much information it may obtain from a healthcare provider concerning the employee’s ability to return to work.
8. If a healthy employee refuses to report to work due to fear of contracting COVID-19, and the employer disagrees that there is sufficient reason for such a concern, may the employer impose discipline on the employee for refusing to report to work?
That depends largely on the reasonableness of the employee’s fear of infection in the workplace. Under the Occupational Safety and Health Act (OSHA), an employee may not be disciplined or discharged for refusing to report to work due to a hazardous condition at work, if (1) the employee is acting in good faith based on the risk, (2) the risk is such that a reasonable person, under the circumstances, would conclude that there is a real danger of death or serious injury, (3) there is insufficient time to seek intervention by the Occupational Safety and Health Administration, and (4) despite the employee’s request, the employer has not taken sufficient steps to remove the risk. Thus, if a reasonable person would conclude that there is a real danger of being infected with COVID-19 by coming to work, it is likely that the employee would qualify for this protection from discipline or discharge. Satisfying this standard, however, would not entitle the employee to be paid for the time missed from work. Furthermore, even if the risk is not sufficient to trigger OSHA protections, if the employee’s level of fear, whether rational or not, results in or is a function of an anxiety disorder or a serious health condition for FMLA purposes, the employee may be entitled to time off as a reasonable accommodation for a disability under the ADA or as a protected leave of absence under the FMLA.
9. If an employer requires apparently healthy employees to remain out of work because of a concern that they may have been infected, must it pay those employees?
The answer depends on the employer’s policies and the employee’s classification for Fair Labor Standards Act (FLSA) purposes.
Employers that maintain flexible (i.e., non-accrual) paid time off policies may, depending on the policy terms, be constrained to permit employees to take paid time off without any limit, unless they modify such policies. An employer that has a limit on the number of consecutive days of paid time off that are available under a flexible paid time off policy should be able to restrict paid leave under such policies based on that limit.
Otherwise, if an employee is non-exempt (i.e., eligible for overtime pay under the FLSA), the employee is not entitled to pay continuation in the absence of an applicable pay continuation policy. If the employee is prevented from working when the employee is asymptomatic, such an absence may not come within the scope of at least most state and local earned sick pay laws, as such laws typically require that the employee be absent to care for himself or herself or a family member due to illness or to attend a medical appointment. (Note that under some state and local laws, including laws in Arizona, New Jersey and New York City, if an employee is prevented from working due to a closure or quarantine order by a public official, earned sick time may be used by an affected employee.)
For most categories of exempt employees, the general requirement is that an employee must be paid his or her full salary for any workweek in which the employee performs any work, subject only to limited exceptions, none of which is applicable to a mandatory quarantine. Therefore, if an exempt employee has worked for part of a workweek, the employee must be paid for the entire workweek. That payment may consist of the required use of accrued paid time off, even if the employee objects to the use of accrued paid time off, unless such required use is inconsistent with the employer’s paid time off policy. Once the accrued paid time off is exhausted, the employer may not deduct from an exempt employee’s salary unless the employee performs no services for the employer for a full workweek.
Of course, employees who are ill may be able to exercise rights to receive pay under sick pay laws, sick pay policies and short-term disability policies.
10. Does time not worked due to a required quarantine constitute leave under the FMLA?
If the employee has been quarantined due to an incapacitating illness for which the employee is being treated, such an absence would generally qualify as a serious health condition and therefore would qualify as a leave of absence under the FMLA for an FMLA-eligible employee. If instead the employee has been quarantined but is healthy and is not caring for an ill family member, such a period of absence would not come within the scope of an FMLA leave, since the employee would not have a “serious health condition” for purposes of the FMLA.