Answers to Common Questions for Employers Regarding the COVID-19 Global Pandemic

COVID-19 Is Forcing Employers to Navigate in Unchartered Waters
By Christopher R. Dyess and Hillary S. Zilz

Background

The rapid onset of the COVID-19 global pandemic has shaken the world to its very core. Our fellow citizens are falling ill. Our neighbors are anxious to know what will happen next. Financial markets are in disarray. Supply chains have been disrupted. While the health and economic impacts of the virus are not yet fully known, what is clear is that employers have been required to respond quickly to a host of potential legal obligations related to the pandemic.

The COVID-19 virus burst onto the global scene in late 2019 in Wuhan, China. Since that time, the virus has been spreading across the globe at an alarming rate. The new virus is akin to a pneumonia infection and has been found to be highly contagious and in some cases deadly.

On March 11, 2020, the World Health Organization (“WHO”) formally declared COVID-19 a pandemic. By formally giving the virus pandemic-status, the WHO signaled that COVID-19 is a global disease and that humans have little to no immunity. Since 1900, there have only been four influenza pandemics, with the most recent being the H1N1 pandemic in 2009.

Schlam, Stone & Dolan LLP has put together this set of Frequently Asked Questions (“FAQ”) to help employers navigate some of the common legal questions regarding COVID-19. Please note that this FAQ is meant only to provide general guidance. As with many employment law-related topics, many situations facing employers are fact-specific and nuanced. These FAQs are not meant to address every situation and jurisdiction-specific guidance is required before employers take any specific actions. Thus, we encourage employers to seek out counsel for advice on their specific situations.

Frequently Asked Questions

Paid Time Off

Question: Do employers have to pay employees who are out of work because of a reasonable belief the employee has been exposed to or contracted COVID-19?

Answer: Possibly. If the employee is still performing work for the employer even while not coming to the employer’s work facility, the employer must pay the employee. If the employee is exempt (i.e., paid on a salary basis) the employer must pay the employee for the entire workweek if the employee does more than a de minimis amount of work. If the employee is non-exempt (paid hourly), the employee must be paid for the time the employee works. Depending on local law, the employee may also be entitled to use paid time off (sick time or other paid time such as vacation days). In addition, the federal government has recently passed legislation that provides additional paid time off to employees (discussed below). Your state legislature may have passed legislative equivalents of this law. Contact us to learn more.

Question: What relief has the government provided for employers with employees impacted by COVID-19?

Answer: On March, 18, 2020 President Trump signed into law the Families First Coronavirus Response Act (“Act”). The Act, which takes effect on April 2, 2020, provides paid sick and protected job leave for employees unable to work because either they or their family members have been impacted by COVID-19. The specific requirements depend on number of employees and the reason the employee is unable to work. Employers who are required to provide paid leave under the Act may be eligible for tax credits. In addition to federal help, states have begun passing similar legislation.

Workplace Safety and Disclosures

Question: What workplace safety guidelines should employers follow?

Answer: The Occupational Safety and Health Administration (OSHA) has published Guidance on Preparing Workplaces for COVID-19. OSHA’s guidelines provide certain steps for employers to help protect their employees. The OSHA guidelines divide workplaces into four zones based on an employees’ likelihood of exposure.

For additional information see https://www.osha.gov/Publications/OSHA3990.pdf

Question: What impact does COVID-19 have on the new hire and onboarding process?

Answer: Employers who are bringing on new employees while implementing work from home policies due to COVID-19 should be aware of several issues. Federal I-9 rules require every employer to review original identity and work authorization documents in the physical presence of the employee within three days of the employee’s start date. The government does allow, however, for the employer to designate a person (employee or non-employee) to step into the employer’s shoes for the purpose of the physical presence requirement.

Question: Can an employer require that employees who test positive for COVID-19 confidentially disclose the results of the test with the employer?

Answer: Yes. The Americans with Disabilities Act (“ADA”) allows an employer to require employees to disclose certain health information if the employee’s condition may pose a direct threat to the health and safety of others. The direct threat standard is a high standard to meet, and the employer's assessment of risk cannot be speculative. The employer must rely on objective, factual evidence, not subjective perceptions, irrational fears, patronizing attitudes or stereotypes about a particular disability. The following factors are considered in determining whether a disability poses a direct threat of substantial harm:

- the duration of the risk;
- the nature and severity of the potential harm;
- the likelihood that the potential harm will occur; and
- the imminence of the potential harm.

For additional information see https://www.eeoc.gov/facts/pandemic_flu.html

Question: Can an employer require that an employee confidentially disclose whether he or she has been exposed to others who have tested positive for COVID-19?

Answer: Likely. Because the ADA permits an employer to require an employee to disclose health information under the direct threat standard, it is likely that an employer can also require an employee to disclose whether he or she has been exposed to others such that the employee now may pose a direct threat. While there are no bright line rules on this point, it is likely that with COVID-19, the direct threat standard will be persuasive and applicable.

Question: May an employer disclose that a particular employee has been exposed or is infected without consent?

Answer: No. An employer has a confidentiality obligation to its employees to take reasonable steps to protect the confidentiality of a positive COVID-19 test result. Those steps are (1) to not identify the employee by name, and (2) to the extent reasonably feasible, avoid making insinuations that would allow another employee to guess that a particular employee has been infected. The employer may however inform other employees as to whom they have reason to believe may have had contact with the infected employee that they could have been exposed and may want to seek medical attention.

For additional information see https://www.eeoc.gov/facts/pandemic_flu.html

Question: Can an employer contact health authorities to report that an employee has tested positive for COVID-19?

Answer: Whether or not an employer may contact health authorities to report that an employee has tested positive is a fact intensive inquiry that would require further analysis that is beyond the scope of this FAQ.

Question: What should employers be telling their employees?

Answer: Employers should be transparent with their employees about their plans for addressing COVID-19 risks. Employers should tell employees that if they have any symptoms associated with COVID-19 that they should not come to work. Explain to employees that staying home when they have symptoms reduces the chance of spreading the virus to other employees. If true, employers should communicate to employees the specific steps they are taking to reduce the risk of infection. For example, plans may include increasing cleanings of the workplace, increasing the amount of space between workers, altering visitor policies and/or allowing some employees to work from home.

If you have questions about this Q&A, please e-mail Christopher R. Dyess at cdyess@schlamstone.com or Hillary S. Zilz at hzilz@schlamstone.com.