The Wary Employer's Guide To Key Coronavirus Concerns

By Leonard Samuels and Andrew Zelman
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Law360 (March 17, 2020, 1:12 PM EDT) --
Leonard Samuels
Leonard Samuels
Andrew Zelman
Andrew Zelman
On March 11, the World Health Organization declared the COVID-19 outbreak a pandemic, the first such classification since the H1N1 virus in 2009. Considerations of community spread, employee health and an anxious workforce, coupled with concerns over absentee employees, business closures and declining revenues, present a conundrum to the unwary employer. 

Underscoring these priorities facing a business owner are the legal implications and exposure to potential claims including the threat of litigation. Failure to take adequate measures in response to the pandemic raises potential legal and compliance issues related to, among others, the Americans with Disabilities Act,[1] the Occupational Safety and Health Act,[2] the Fair Labor Standards Act,[3] the Family and Medical Leave Act,[4] and liability to customers for negligence.

Employer Discovers an Employee Is Exhibiting Flu-Like Symptoms Associated With COVID-19

In general, questioning symptomatic employees about possible health conditions raises issues under the ADA, which prohibits an employer from discriminating against an employee on the basis of a disability.[5]

During a pandemic, however, where the spread of the disability poses a direct threat to the health or safety of the individual or others that cannot otherwise be eliminated or reduced by reasonable accommodation,[6] employers may query the employee as to symptoms of COVID-19 provided that any medical information received from the employee is maintained confidentially. 

Further, in the event of a pandemic, the ADA permits an employer to take the symptomatic employee's temperature to confirm fever, finding that a temperature test is considered a medical examination within the meaning of the ADA and is similarly exempted where an employer has a reasonable belief of a direct threat.[7]

Should the employer confirm that the affected employee is exhibiting flu-like symptoms associated with COVID-19, the employer may send the employee home without violating the ADA and may prohibit the employee from returning to the workplace until at least 24 hours after the fever has subsided without fever-reducing medicines.

For extended absences and for covered employers, an eligible employee who contracts COVID-19 is entitled to up to 12 weeks of unpaid job-protected leave pursuant to the FMLA. Similarly, leave is available under the FMLA to employees whose immediate family members become infected with the virus.

Therefore, for FMLA-covered employers and for employees on extended leave, it is important to keep the employee's position open until the expiration of the statutory period or, circumstantially, if the employee resigns.

The FLSA mandates that an employer generally is required to pay nonexempt employees only for the time they actually work. Thus, an employer is not required to pay the furloughed employee for mandated time off unless work is performed during the period of absence.

For exempt, salaried employees, the FLSA requires employers pay the employee their entire weekly salary in any workweek in which they perform any work. In either case — exempt or nonexempt — affording eligible employees the use of sick pay should follow company policy. 

Some states, like Colorado, have enacted temporary rules mandating paid sick leave for any employees experiencing flu-like symptoms that are being treated for COVID-19.[8] Strict compliance with the FLSA is essential to avoid litigation stemming from a failure to pay wages, which may include claims for liquidated damages and attorney fees, in addition to unpaid wages. 

Protecting Employees From the Spread of COVID-19

Inevitably, employers will be fielding questions from employees regarding potential exposure to COVID-19 at the workplace, raising issues of confidentiality and open communication. Not only does the law impose obligations on an employer when faced with a symptomatic employee, but the business owner must take efforts to maintain a workplace free of hazard, while safeguarding the rights of the affected employee.

As part of a general communication plan, inquisitive employees should be kept informed of actual or potential exposure to allow employees to monitor themselves for signs or symptoms and quarantine themselves, if appropriate. To comply with the ADA and other privacy laws, employers may not, however, specifically disclose the identity of the infected employee or provide information that will allow other employees to identify the infected individual.

The Occupational Safety and Health Administration mandates that employers provide a safe workplace for all employees, free of known health and safety hazards.[9] Though OSHA has not issued formal standards or regulations specific to the spread of a pandemic, the general duty clause codified in Section 5(a)(1) of the OSH Act, requires employers to provide their employees with a workplace "free from recognized hazards … likely to cause death or serious bodily harm."

Pursuant to the latest guidance provided by OSHA in response to COVID-19, employers are encouraged to implement policies that will result in the "prompt identification and isolation of potentially infectious individuals" in order to protect the safety of employees.

For employers in industries where the risk of exposure to COVID-19 may be higher, such as health care, laboratory and airline and travel businesses, such action may include immediately isolating persons suspected of having COVID-19, requesting and encouraging workers to wear face masks, and restricting the number of personnel entering isolation areas such as the room of a patient with suspected COVID-19.[10]

Further, OSHA has deemed COVID-19 a recordable illness when a worker is infected on the job. If an employee becomes infected while traveling for work or at work, the employer would be required to prepare and file appropriate reports with OSHA. Employers should be prepared to file appropriate reports with OSHA for those who have been exposed to the virus at work.

An employer's failure to adequately respond to the effects of a pandemic in the workplace provides a basis for a general duty clause violation citation under the OSH Act. In order to comply with best practices, the employer should implement policies that will result in the "prompt identification and isolation of potentially infectious individuals" pursuant to guidance provided by OSHA.

It is also incumbent upon the employer to maintain medical records relating to employees who have COVID-19 as strictly confidential, including being maintained in files separate from the employee's personnel file. This includes not disclosing the fact that a particular employee has contracted COVID-19 — instead, let health care officials handle such identification as they deem necessary.

Refusal of Nonsymptomatic Employees to Attend Work, Citing a Fear of Exposure to COVID-19

Under the OSH Act, an employee's refusal to come to work due to concerns over contracting COVID-19 may be considered protected activity, which would implicate OSHA's anti-retaliation guidelines.[11] Pursuant to the OSH Act, an employee may refuse to work upon a reasonable belief they are in imminent danger, that there is a threat of death or serious physical harm at the workplace, and the employee has no reasonable alternative but to avoid the workplace. 

In such an instance, an employer is prohibited from discriminating against the employee for missing work, including termination or other retaliatory measures. Currently, OSHA describes the risk of COVID-19 infection for most people as low[12] which is likely less indicative of an imminent danger causing an objectively reasonably fear of returning to work; however, constant monitoring of the OSHA risk levels is essential.

Additionally, if the employee is simultaneously raising issues of workplace safety stemming from an employer's failure to address the spread of the virus in the workplace, OSHA similarly protects the complaining employee from retribution. Therefore, the best practice for the wary employer is to stay updated on OSHA and Centers for Disease Control and Prevention developments, take all complaints from employees seriously, documenting responses.

A Customer Becomes Infected With COVID-19

In Florida, individuals who are invited to enter or remain on land for a purpose directly or indirectly connected with business dealings are considered "business invitees" and are owed a duty of reasonable care from the possessor of the land against all dangers that the owner knows or should have known.[13] The CDC,[14] U.S. Equal Employment Opportunity Commission[15] and OSHA[16] have all published guidance for employers in properly handling the COVID-19 outbreak.

Any failure of the employer to follow these guidelines may expose an employer to liability for an injury suffered to a customer on a negligence theory. A rash of lawsuits have already been filed alleging negligence against cruise ships.[17]

Conclusion

When faced with the threat of exposure to lawsuits and citations, the scrupulous employer must contend with the dichotomy of safeguarding individual rights versus the statutory obligation to maintain a hazard- and virus-free workplace.



Leonard Samuels and Andrew Zelman are partners at Berger Singerman LLP. 

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] 42 U.S.C. § 12101, et seq.

[2] 29 U.S.C. § 651, et seq.

[3] 29 U.S.C. § 203, et seq.

[4] 29 U.S.C. § 2601, et seq.

[5] Complications arising from illness caused by pandemic COVID-19 may be considered an ADA-covered disability.

[6] See Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, Oct. 9, 2009, II(B), available at https://www.eeoc.gov/facts/pandemic_flu.html (last accessed March 16, 2020); 29 C.F.R. § 1630.2(r).

[7] Id.

[8] See Colorado Dept of Labor and Employment Emergency Rule dated March 11, 2020 (4 days paid sick leave for employees in certain sectors).

[9] See https://www.osha.gov/workers/index.html (last accessed March 16, 2020).

[10] See https://www.osha.gov/SLTC/covid-19/controlprevention.html (last accessed March 16, 2020).

[11] 29 C.F.R. § 1977.12(b)(2).

[12] See https://www.osha.gov/SLTC/covid-19/controlprevention.html (last accessed March 16, 2020) (applying "most people" to those not involved in healthcare, deathcare, laboratory, airline, border protection, or solid waste and wastewater management operations or international travel to areas with ongoing, person-to-person transmission of COVID-19).

[13] See Glasco v. Pembroke Lakes Mall, LLC, 2019 WL 1112277, at *3 (S.D. Fla. 2019).

[14] See "Interim Guidance for Businesses and Employers", available at https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html (last accessed March 16, 2020).

[15] See FN 2, supra.

[16] See "Guidance on Preparing Workplaces for COVID-19", available at https://www.osha.gov/Publications/OSHA3990.pdf (last accessed March 16, 2020).

[17] See Ronald Weissberger, et al. v. Princess Cruise Lines Ltd., No, 20-02267 (C.D. Cal. 2020); Kurivial, et al. v. Princess Cruise Lines Ltd., No. 20-02361 (C.D. Cal. 2020).

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