Disclaimer: this information is not intended to be exhaustive, nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel for legal advice.

How do we handle absenteeism due to illness and dismissals of schools?

Implement plans to continue your essential business functions in case you experience higher than usual absenteeism. If you have the ability for any staff to administratively work remotely, you may consider that as well. If you can limit your scheduling, do so, this allows you better control of your abilities and staffing needs as you will have staff who are now impacted for childcare needs. Also consider cross-training personnel to perform essential functions so that the workplace is able to operate even if key staff members are absent.

If a staff person is unable to come to work due to COVID-19 and childcare needs, do not penalize them for this. This is an emergency situation and discretion should be used due to the pandemic. It is important to be clear with staff that any leniency you may extend at this time is due to the nature of the situation and once this is resolved, ‘normal’ regular attendance practices will be reinstated.

What if an employee appears sick?

Employees who present themselves at work with a fever or difficulty in breathing, are recommended to stay home and not come to work until they are free of fever (100.4° F [37.8° C] or greater using an oral thermometer), signs of a fever, and any other symptoms for at least 24 hours, without the use of fever-reducing or other symptom altering medicines (e.g. Tylenol).

The CDC recommends that employees who appear to have acute respiratory illness symptoms (i.e. cough, shortness of breath) upon arrival to work or become sick during the day should be separated from other employees and be sent home immediately. Sick employees should cover their noses and mouths with a tissue when coughing or sneezing (or an elbow or shoulder if no tissue is available).

Can we ask an employee to stay home or leave work if they exhibit symptoms of the COVID-19 coronavirus or the flu?

Yes, you are permitted to ask them to seek medical attention and get tested for COVID19. The CDC states that employees who exhibit symptoms of influenza-like illness at work during a pandemic should leave the workplace.

The EEOC has said that sending an employee home who displays symptoms of contagious illness would not violate the ADA’s restrictions on disability-related actions.

Under the federal Occupational Safety and Health Act of 1970 (the OSH Act), employers have a general duty to provide employees with safe workplace conditions that are “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” Workers also have the right to receive information and training about workplace hazards, and to exercise their rights as employees without retaliation. There is no specific Occupational Safety and Health Administration (OSHA) standard covering COVID-19. However, some OSHA requirements may apply to preventing occupational exposure to COVID-19.

Also, OSHA requires many employers to record certain work-related injuries and illnesses on their OSHA Form 300 (OSHA Log of Work-Related Injuries and Illnesses). OSHA has determined that COVID-19 is a recordable illness when a worker is infected on the job. Establishments that are required to complete an OSHA 300 log should be sure to include all COVID- 19 infections that are work related.

An employee of ours has tested positive for COVID-19. What should we do?

It is a best practice to send home all employees who worked closely with that employee for a 14-day period of time to ensure the infection does not spread. Before the employee departs, ask them to identify all individuals who worked in close proximity (three to six feet) with them in the previous 14 days to ensure you have a full list of those who should be sent home. When sending the employees home, do not identify by name the infected employee or you could risk a violation of confidentiality laws. Also do not tell employees that the individual tested positive for the virus but they have exhibited symptoms to lead you to believe a positive diagnosis is possible.

You may also want to consider asking a cleaning company to deep clean the affected workplaces. If you work in a shared office building or area, you should inform building management, so they can take whatever precautions they deem necessary.

If we learn or suspect that one of our employees has COVID-19, do we have a responsibility to report this information to the CDC?

There is no obligation to report a suspected or confirmed case of COVID-19 to the CDC. The healthcare provider that receives the confirmation of a positive test result is a mandatory reporter who will handle that responsibility

What do I do about those employees who are traveling?

Advise employees before traveling to take certain steps:

Does family and medical leave apply to this situation?

If an employee, or an employee’s family member, contracts COVID-19, the employee may be entitled to time off from work under federal or state leave laws. For example, an employee who is experiencing a serious health condition or who requires time to care for a family member with such a condition may be entitled to take leave under the Family and Medical Leave Act (FMLA). An illness like COVID-19 may qualify as a serious health condition under the FMLA if it involves inpatient care or continuing treatment by a health care provider.

Employees may also be entitled to FMLA leave when taking time off for medical examinations to determine whether a serious health condition exists.

Many states and localities also have employee leave laws that could apply in a situation where the employee or family member contracts COVID-19. Some of these laws require employees to be given paid time off, while other laws require unpaid leave. Employers should become familiar with the laws in their jurisdiction to ensure that they are compliant.

Some employees may wish to stay home from work out of fear of becoming ill. Whether employers must accommodate these requests will depend on whether there is evidence that the employee may be at risk of contracting the disease. A refusal to work may violate an employer’s attendance policy, but employers should consult with legal counsel prior to disciplining such an employee. However, if there is no reasonable basis to believe that the employee will be exposed to the illness at work, the employee may not have to be paid for any time that is missed.

When should an employee take a leave of absence?

If an employee will be off beyond three consecutive calendar days, they should contact their direct supervisor and Premier’s HR Department to request a leave of absence.

How do employees request a leave of absence?

An employee must call their supervisor to inform them of their situation. Then the employee must work with their supervisor and Premier, as they determine eligibility to apply for Federal Medical Leave or Personal Leave if FMLA is not applicable to the employee.

Does this qualify as short-term disability (STD), if an employee has STD coverage?

If an employee is unable to work due to illness, yes. STD must be substantiated with the appropriate documentation from the employee’s medical provider. As long as there is a documented illness and medical certification to support, then the claim would be filed, and determination of the benefits comes from the Carrier.

Does Worker’s Compensation apply to absences because of coronavirus?

Employees may be entitled to workers’ compensation benefits if they contract the disease during the course of their employment. For example, employees in the healthcare industry may contract the disease from a patient who is ill. This may differ state by state as each state will determine if this constitutes an ‘injury’ under workers’ compensation laws.  Whether an employee is eligible for other benefits, such as short-term disability benefits, will depend on the terms of the policy and the severity of the employee’s illness.

How does the Americans with Disability Act (ADA) apply?

The Americans with Disabilities Act (“ADA”) protects applicants and employees from disability discrimination. It is relevant to COVID-19 because it prohibits employee disability-related inquiries or medical examinations unless:

According to the Equal Employment Opportunity Commission (EEOC), whether a particular outbreak rises to the level of a “direct threat” depends on the severity of the illness. Employers are expected to make their best efforts to obtain public health advice that is contemporaneous and appropriate for their location and to make reasonable assessments of conditions in their workplace based on this information.

The EEOC has said that sending an employee home who displays symptoms of contagious illness would not violate the ADA’s restrictions on disability-related actions because advising such workers to go home is not a disability-related action if the illness ends up being mild, such as seasonal influenza. On the other hand, if the illness were serious enough, the action would be permitted under the ADA as the illness would pose a “direct threat.” In either case, an employer may send employees home, or allow employees to work from home, if they are displaying symptoms of contagious illness.

The ADA requires that information about the medical condition or history of an employee, obtained through disability-related inquiries or medical examination, be collected and maintained on separate forms and in separate medical files and treated as a confidential medical record. Employers should refrain from announcing to employees that a coworker is at risk of or actually has a disease. Instead, employers should focus on educating employees on best practices for illness prevention.

Can employees request to work from home? Do we have to grant the request?

Only if leadership determines the employee’s work can be performed from home for a defined period of time.

An employee is only entitled to refuse work if they believe they are in imminent danger. OSHA defines “imminent danger” to include “any conditions or practices in any place of employment which are such that a danger exists which can reasonably be expected to cause death or serious physical harm immediately or before the imminence of danger can be eliminated through the enforcement procedures otherwise provided by the Act.” OSHA discusses imminent danger as where there is “threat of death or serious physical harm”, or “a reasonable expectation that toxic substances or other health hazards are present, and exposure to them will shorten life or cause a substantial reduction in physical or mental efficiency.” For example, requiring travel to China or to work with patients in a medical setting without personal protective equipment at this time may rise to the threshold. Most work conditions in the United States, however, do not meet the elements required for an employee to refuse to work.

The guidance is general, and employers must determine when this unusual state exists in your workplace before determining whether it is permissible for employees to refuse work.

If an employee is absent due to the coronavirus, are they subject to the Attendance policy?

Yes. However, considerations are made when one is on short-term disability, as defined by our plan, for having the illness. Employees should be reminded to communicate with their direct report and Premier’s HR Department after three shift absences to determine eligibility for FMLA or leave of absence coverage.