The coronavirus (COVID-19) was first detected in China and has now spread to several countries, including the United States. The coronavirus has caused an outbreak of respiratory disease. On Wednesday, March 4, 2020, California Governor Gavin Newsom declared a coronavirus “state of emergency” to help the state further prepare in the event the virus spreads more broadly.
The Center for Disease Control (CDC) is responding to the coronavirus outbreak and has several resources available as guidance for employers. Employers should check the CDC website often for up-to-date information regarding geographic areas of concern and recommendations as the coronavirus continues to spread. Cal/OSHA also provides helpful guidelines to determine what steps you can take to ensure compliance with all applicable regulations. Below are some tips, resources and answers to frequently asked questions to help employers prepare their workplace and navigate the issues presented by this novel virus.
Employers should create or update policies and procedures to deal with illness, sick leave, and the response to public health recommendations. The CDC recommends plans that include the following personal non-pharmaceutical interventions (NPIs) to avoid the spread of the virus:
Cal/OSHA recommends that all California employers follow the CDC recommendations above.
In addition, the Aerosol Transmissible Diseases Standard (ATD) is a specific set of requirements that applies to employers operating in the healthcare industry, laboratories, public health services, police services and other at risk environments where employees are reasonable anticipated to be exposed to disease. The ATD requires covered employers to protect employees from airborne infectious diseases through:
Additional details regarding employers who are subject to the ADT and detailed explanations about the plans, procedures, training and other requirements listed above can be found at: https://www.dir.ca.gov/title8/5199.html. Employers are encouraged to work with qualified counsel on the implementation of the ADT requirements.
In determining which procedures would be best suited for your workplace, also consider whether your workers are considered “high risk.” The United States Department of Labor Occupational Safety and Health Administration (“OSHA”) currently identifies the following workers to possibly be at an elevated risk:
Workers who interact with potentially infected travelers from abroad, including those involved in:
Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (“ADA”) and the broader California Fair Employment and Housing Act (“FEHA”) prohibit discrimination, retaliation and harassment in the workplace based upon protected characteristics including ancestry, national origin and medical condition(s). Employers must ensure that new and existing policies equally apply to all employees. Policies must be neutral and non-discriminatory on their face. It is also imperative that policies do not result in discriminatory impacts when they are applied. These standards apply to written and non-written policies. Employers are encouraged to consult with legal counsel when implementing new or modified policies, especially when dealing with a novel issue such as the coronavirus.
Employers also must provide a work environment that is free from harassment, bullying, retaliation and discrimination. Employers are encouraged to remind their employees that they are prohibited from harassing, bullying, retaliating or discriminating against each other on the basis of any protected characteristic, including race, national origin or an actual or perceived medical condition. This could be problematic in light of the coronavirus outbreak if employees are singling others out based upon their national origin or a recent trip to see family in a high-risk country, for example. Employers should promptly address inappropriate conduct in the workplace and discipline as necessary. Additional training and reminders may be necessary in light of current events.
How can I identify which employees are more likely to be unavailable for work because of the coronavirus?
Questions should be designed to avoid intrusion into the employee’s privacy and only seek a yes or no answer where possible. Questions must not be disability-related, nor should questions implicate national origin.
In light of current circumstances, employers could ask whether the employee has traveled out of the state or country within the last 14 days or whether the employee has come into contact with anyone that is known to have or have been exposed to coronavirus. Although employers typically should not ask about an employee’s specific medical condition or diagnosis, you may ask your employees if they have been diagnosed with or exposed to coronavirus. This limited exception applies only under the current circumstances, because of the compelling need for the employer to take action if employees have been exposed to the virus.
As noted above, be careful not to treat employees differently based on protected characteristics including national origin, race or medical condition, and ensure that employees who have been identified as being at risk do not experience discrimination, harassment, bullying or retaliation.
May I ask employees about their symptoms?
Employers may ask employees if they are experiencing influenza-like symptoms, such as sore throat, fever, and a cough. These types of inquiries are only allowed when they are job-related and consistent with business necessity. Employers should review the information on the CDC website related to coronavirus symptoms.
What if an employee displays symptoms?
Per the CDC, employees who exhibit symptoms of influenza-like illness should leave the workplace. When deciding whether you are going to send an employee home, consider your industry and the risk of exposure to others in your workplace. Factors used to determine who will be sent home should be equally applied to all employees.
May I require employees to be tested for coronavirus?
As a practical matter, mandated testing by the employer is unlikely to be effective or realistic. Under current testing protocols, a doctor must approve the person to be tested. Even with a doctor’s approval, the nation still has a limited testing capacity. Assuming that testing is available at all in your location, there would likely be a considerable delay in having an employee tested. If the only reason for the test is the employer’s requirement, the employer would need to pay for the cost of the test and the time that the employee is off work while waiting for the test and results. This status may change in the coming days, so it is important to stay up to date with CDC developments.
If I request a doctor’s note before allowing an employee to return to work, do I have to pay for the doctor’s appointment?
It depends. Employers may request a note clearing an employee to work if that employee has called out due to a communicable disease (note that state and possibly local sick leave rules would prevent an employer from requesting a doctor’s note for routine illnesses). In that instance, the employer would not be required to pay. However, if the employee must go to the doctor to take a test or obtain a note only at the employer’s direction, the employer would be required to pay for the doctor’s appointment.
Can I tell people that an employee has coronavirus?
Recall that all information about applicants or employees regarding medical examinations must be kept confidential and stored separately from the employee’s personnel file. Only management or executive personnel with a need to know the status should be informed of any medical issues, and such person should be reminded of the need for strict confidentiality. The medical status of specific employees should never be disclosed. However, the employer would be entitled to report that a case of coronavirus has been detected in the workplace (without providing names) so as to facilitate further quarantine and testing procedures.
Should an employee be paid for time at home if the employer asks the employee to stay home (do they have to use paid sick time, or is it employer-paid, or unpaid, etc.)?
If an employer has a reasonable belief that an employee is putting others at risk by the employee’s presence at work, the employer can ask the employee to stay home and use available sick time, followed by vacation/PTO time. If the employee is exhibiting symptoms of illness, the employer could send the employee home and apply the employee’s available sick time. For morale and safety reasons, an employer might consider paying the employee for a limited period of time to remain at home while awaiting further information.
Note that if the employee is an exempt salaried employee, the employer would be required to pay for the entire workweek even if the employee was told to stay home for only a portion of that workweek.
Employers are also encouraged to consider allowing employees to work remotely if possible during this time.
What if an employee refuses to travel or decides not to come to work out of fear of contagion?
If the employer determines that the employee’s fear is “unreasonable” under the circumstances, then the employee may be subject to discipline. Employers are encouraged to use caution with discipline under the current circumstances, however. Contact our legal counsel regarding specific facts if they fall into a grey area.
If an employee has a reasonable fear based on personal status or a medical condition that puts them at a higher risk related to the coronavirus, the employer should engage the employee in an interactive process to determine if a reasonable accommodation can be made so that the employee can continue to perform the essential functions of their job.
Reasonable accommodations related to the spreading coronavirus may include the option to work remotely from home or a temporary leave. Employers are encouraged to consider available options for all employees where practical at this time to help prevent the spread of the virus.
What if one of my employees is diagnosed with coronavirus?
If an employee is confirmed to have the virus, employers should report the illness to the local health department. While medical confidentiality may not be violated in the workplace, a general statement should be made to all employees regarding a suspected or confirmed case of coronavirus, without mentioning specific employee names.
The employee should be sent home for a period of at least 14 days. Determine which other employees may have come into contact with that individual. Other employees who might be infected should be sent home (at least to work remotely if possible) for 14 days as well. Again, when speaking to other employees, do not identify the person who has been diagnosed with the coronavirus.
Employers are encouraged to work with qualified legal counsel to prepare notices to the workplace if a coronavirus case is diagnosed in the workplace.
What else should the employer prepare for?
Consider increased numbers of employee absences due to illness in employees and their family members or closure of daycare centers and schools. Also, be prepared for outside impacts on your business, which might in turn affect your workforce. For example, hotels and restaurants might see a downturn in reservations and sales. This could necessitate a reduction of staff or employee hours. Also, discuss potential impacts on employee benefits with your insurance broker.
Consider whether your employees might want to take their vacation/PTO leave during slow business periods, whether you are going to shut down for a period of time or whether temporary layoffs might be necessary. Remember that you must provide employees with 90 days of advance notice before you can force them to use their vacation or PTO.
The state and federal WARN Acts may apply to employers with at least 75 employees that implement long-term layoffs. Note that federal law is much more favorable as to whether a WARN Act notice might be required; state law only waives the notice requirement if there is a “natural disaster.” It is unclear whether the coronavirus outbreak would sufficiently fall within that designation. Otherwise, employers may be required to give 60 days’ notice of a group layoff of large numbers of employees.
Contact our office to discuss the legal requirements and necessary documentation for these types of situations.
What if my employees travel for business?
Employers should remain up to date regarding restrictions on travel and should cancel all non-essential work travel to affected areas. The CDC is providing regular updates regarding the risk assessment level in various countries based on how widespread the transmission of the coronavirus has been. Even in unrestricted travel locations, consider limiting work travel in order to ensure a safe work environment.
What if my employees travel to China or another high risk country for business?
The CDC is currently working with public health partners to implement new travel procedures that will direct American citizens who are returning from certain high-risk countries to airports with health screenings and may restrict the traveler’s movements for 14 days after returning. Whether or not your employee is subject to these procedures, keep employees out of the office for 14 days after their return to the United States from a high-risk location. Allow them to work remotely or offer paid leave if necessary.
With regard to travel within the U.S. or in non-high risk areas, employers may not be able to force employees to stay home for an extended period of unpaid leave (7-14 days) unless there is an indication of heightened risk. Such action is not strictly prohibited, but may not pose enough risk to warrant these drastic measures. In those situations, you may want to have the employee visit a physician, at the employer’s cost, to assess any risk.
How much sick time do I have to give employees? What if an employee is out sick after exhausting all available leave and sick time?
Employers should anticipate increased use of sick days by employees in light of the actual or feared spread of the coronavirus. To summarize California’s sick leave requirements, employees who have worked in California for the company for 30 or more days within a year from their beginning of employment are entitled to paid sick leave. This includes part-time and temporary employees.
Employees may accrue sick leave at the rate of at least one hour of sick leave for every 30 hours of work. Accrual begins on the first day of employment and should be reflected on the employee’s wage statement. Alternatively, employers can frontload 24 hours or three days (whichever is higher) of sick leave at the start of a selected year period. Note that local city rules may provide for additional or different sick leave benefits depending on the cities in which your employees work.
In general, an employer may not discipline or retaliate against an employee for using accrued paid sick leave. These requirements are not new or specific to the coronavirus. If you do not already have a clear sick leave policy, contact us to develop one moving forward.
If employees have exhausted their accrued sick pay, consider allowing them to use vacation or unpaid time. If you are concerned that the employee is ill and may present a health risk to other employees, you might want to consider offering a few extra paid days off to make sure the employee is symptom-free upon their return to the office.
Are there other leaves and benefits that apply to my employees when they are ill or caring for a family member?
In addition to reasonable accommodation standards under the ADA and FEHA, employers with 50 or more employees must grant FMLA/CFRA leave of up to 12 weeks to eligible employees with a serious health condition, or who may be caring for a family member with a serious health condition.
Remember to provide State Disability Insurance information to employees who are on unpaid leave due to disabilities or serious health conditions, and Paid Family Leave information to employees who are unpaid leave to care for a family member with a disability or serious health condition.
Remind employees of any rights they may have under the employer's short-term and long-term disability policies, as well as under any group health insurance policy.
Do I have to let employees stay home if schools close?
If you have more than 25 employees, yes. The California Labor Code allows employees who are parents, guardians, stepparents, foster parents, grandparents, or adults who are responsible for a child up to 40 hours off each year (not to exceed one day per month) to address a “child care provider or school emergency.” If schools close because of the virus, this provision would likely apply. Vacation or PTO time should be applied to time off until exhausted (unless the employee or child is sick, in which case sick time could be applied).
Employers may want to be flexible during this time, whether or not they have more than 25 employees. Given the morale issues involved, employers may want to work with their employees to obtain alternative child care or allow employees to work from home where practical.
What if other employees act out against someone that is experiencing symptoms or recently returned from a high risk country?
You will need to protect the rights of all employees and avoid discriminatory, harassing, bullying or retaliatory conduct. Educating employees will be critical, but each situation may require a case-by-case analysis depending on the behavior or other facts.
CDC Get Your Work Place Ready for the Flu:
OSHA Fact Sheet: What Employers Can Do to Protect Workers from Pandemic Influenza
California Department of Fair Employment and Housing
Contact LightGabler for assistance with any questions or to prepare the proper notices and plans discussed above.