With news of spreading disease, travel restrictions, and quarantines dominating the news, it’s no surprise that employees have questions about the coronavirus/COVID-19 and whether they risk exposure at work. So, an understanding of how to respond is critical. The issues fall into two basic categories: practical considerations and how an employer can be legally compliant while keeping everyone at work safe.
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Practical Issues
Preventing exposure. You may wonder whether you can keep employees away from work if they have been exposed to the coronavirus. The answer is yes. You can keep employees off work either because of a public health quarantine or at your request. Also, you’re within your rights to send employees home who come to work with active symptoms.
Cleanliness. A policy on office cleaning and hand washing can limit the spread of viruses. The type of program you need depends on your circumstance, including the industry you are in. Health care, child care, and food preparation all have different rules that might not be the same for other industries.
Absenteeism. If you’re asking an employee to stay home because of exposure to something that may become a pandemic, it doesn’t seem fair to count the incident as absenteeism. The employee is being asked to stay home by you, the employer, or by a mandatory requirement from public health authorities. It would be difficult to justify a termination based on absenteeism in that circumstance.
Legal Issues
OSH Act. Employers have an obligation to provide a safe workplace under the Occupational Safety and Health Act’s (OSH Act) General Duty Clause. In some circumstances, such as with healthcare workers, exposure to illnesses is an inherent job risk, but the employer still has an obligation to minimize the danger.
If part of an employee’s job is travel and there is an existing pandemic, an employer could face issues when sending employees into viral hot zones. A U.S. employer currently sending someone to China has a greater risk of being held responsible for exposure than an employer that chooses to delay the travel.
Whistleblowing. What if you have employees who refuse to come to work because they are afraid of exposure? It depends on the nature of the potential risk and exposure. There have been instances during SARS (or Severe Acute Respiratory Syndrome), or more recently with measles outbreaks, when employees have refused to travel even though their mobility was essential to the job.
An employee’s complaint about workplace safety could kick in the OSH Act’s whistleblower protection requirements. However, if the fear is more generalized, simply based on worries relating to media coverage or more general pandemic questions, your concerns may not be objective. If you can show there is no substantial risk and you’ve taken steps to mitigate and respond to the danger, whistleblower protection is less likely.
FMLA. If you’re covered by the Family and Medical Leave Act (FMLA) and the employee is ill and otherwise meets the requirements, the individual is entitled to leave under the Act. In the case of the coronavirus, it’s likely the disease would be considered a serious health condition under the FMLA. If a spouse, child, or parent is exposed and the employee is needed to provide care for the person, the employee also would qualify for FMLA protection. An employee quarantined because of potential exposure, however, likely doesn’t qualify.
FLSA/wage and hour. Wage and hour issues under the Fair Labor Standards Act (FLSA) can be tricky:
- Business travel: If a nonexempt employee is on a business trip and is quarantined, the overnight travel rules will apply, with the employer being responsible for providing payment for wages that cut across the workday and for all time the person is in fact working. For exempt employees, if the absence is occasioned by the employer, your company is liable for the individual’s ongoing wages and may not deduct from actual salary. Paid time off (PTO) can be deducted but only until it’s exhausted.
- Personal travel: If employees are on a personal trip and quarantined, they aren’t typically entitled to wages no matter if they’re exempt or nonexempt. Note the rules for partial-day absences for exempt employees still apply.
Big Picture
Check your policies to make sure you inform employees that they must tell you of exposure to any highly communicable disease. Have policies in place indicating you may send employees home who are exhibiting symptoms, including fevers over 100 degrees, active diarrhea, or vomiting, or who have been traveling in virus hotspots.
Also, remember that scientific understanding of the virus is increasing, and protocols from the Centers for Disease Control and Prevention (CDC) may change. Continue to consult with your attorney on procedures related to traveling employees or those who may be subject to quarantine as the CDC continues to assess the risk.
Jo Ellen Whitney, an attorney with the Davis Brown Law Firm in Des Moines, Iowa, can be reached at joellenwhitney@davisbrownlaw.com.