By Christopher B. Snow, Director and Shareholder, Co-Chair of Labor & Employment Group.
Despite suffering significant coronavirus (COVID-19) reading fatigue (I come from a long and distinguished line of hypochondriacs), there are a few legal and practical issues that your business should be considering as this pandemic unfolds. It is likely that your employee handbook does not have a separate section on the coronavirus, unless your employment lawyer is also a seer, so hopefully these tips and considerations are helpful.
1. Should I quarantine employees who have recently returned from a coronavirus hotspot?
I recently had a friend visit me in my office. He had just returned from Italy and his wife became ill on the return flight home to Salt Lake City and he was now having flu like symptoms. They did not get tested for the coronavirus, but as he was in my office telling me his plight, I just wanted him to leave or at least stay 6 feet away from me (very rude, I know, sorry friend). This got me thinking about my client’s policies for employees that might be sick with the coronavirus, and whether companies could and should require employees returning from a coronavirus hotspot to stay home for a period of time. The obvious answer to that question is yes! If the employee is returning home from China, Italy, Iran, and other locations where the virus has taken root, you should consider telling the employee to work from home and stay away from the workplace for 14 days. This is true even if they are not symptomatic because of the 14-day incubation period and because some individuals show very little symptoms. If the employee cannot work from home and insists he or she is fine, the employer will need to analyze the employee’s rights that arise under state law, contract, or a collective bargaining agreement. In Utah, most employees are employed at-will and the employer would have the right to dictate the terms and conditions of employment, including leave, work schedules, and PTO. In other words, the employer should have the right to require the employee to stay away and not come into the workplace (unless an express or implied contract, or collective bargaining agreement, state otherwise). The employer might consider offering more PTO or making this a paid leave scenario to mitigate the harm to affected employees. Explain that many employees might have a lot of fear about coming in contact with them, and if they are sick, the disruption to the workplace could be significant.
2. What if employees refuse to come to work for fear of becoming infected with COVID-19?
OSHA has a general safety clause that requires all employers to provide a workplace free from hazard and dangers. I can imagine a scenario where multiple people in the workplace contract the illness so other co-workers refuse to come into work for fear of becoming infected. Depending on the risk, employees might have a decent argument that employers are violating OSHA regulations by not providing a safe working environment. Consult with legal counsel if this issue arises as it will turn on a number of case-specific factors.
3. Is FMLA available if an employee contracts COVID-19?
To be eligible for FMLA leave, an employee must have a serious health condition (in addition to satisfying other criteria). COVID-19 may be considered a serious health condition depending on the severity of the illness and symptoms. This is true if the employee is also taking care of a family member with COVID-19 with severe symptoms. However, employees simply refusing to come into work for fear of contracting the virus would not typically qualify for FMLA leave.
4. Do employees qualify for ADA protection if they contract the coronavirus?
The ADA is designed to prevent discrimination against individuals that have a chronic or long-term impairment that substantially limits at least one of the employee’s major life activities. COVID-19, in most cases, will not become a chronic long-term disability or impairment. However, the ADA also prohibits discrimination against perceived disabilities. Employers should exercise caution in how they treat and respond to employees diagnosed with COVID-19 and continue to apply all leave and sick policies consistently, without discrimination.
Conclusion
The coronavirus pandemic is not going away anytime soon and employers should review the above considerations and their own internal policies to ensure a balance is struck between workplace safety and continuing business as usual.
If you have questions on any employment law matter, please contact Clyde Snow’s Labor & Employment Group at 801.322.2516 or Christopher B. Snow via email at cbs@clydesnow.com.