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March 15, 2020: Attorney Heather Rider Hammond Provides Guidance on COVID-19 in the Workplace

When COVID-19 Hits Your Workplace – Some FAQ’s

We have all been bombarded with information over the last few weeks about the novel coronavirus. I would encourage all of you to keep close, daily tabs on the advice pushed out by the CDC and your state’s Department of Health.  I also thought it might be helpful to provide some guidance on some frequently asked questions I have received over the last week.  This is a fast-moving event, and my thoughts as set forth below may change as the environment changes.  I would appreciate hearing from any of you with additional thoughts on this.

As always, please reach out at any time with questions or concerns.

Does our company need to have a plan?

Yes, you do.  You need to tell your employees that you are paying attention to the guidance from the CDC and the Department of Health, and are taking steps to keep them healthy.  This includes telling them to stay home if they are exhibiting symptoms, and preparing internally for sick and/or quarantined employees.  You should also be thinking about communicating to customers and vendors, as well as ensuring that you have a business continuity plan in place.

Do we need to pay employees who self-quarantine?

There is no legal obligation to pay employees who are not sick, but who are advised to self-quarantine due to potential exposure to the virus.  Of course, employees can use accrued PTO for this purpose, but I would also encourage you to think about whether and how your company may be able to help them financially.  This can be a full paycheck, a stipend, payment for their health insurance. . .. It is in your best interest to encourage employees to be forthcoming if they have been exposed and they may not do so if they are afraid to be without an income for two weeks or more.

Would an employee’s absence from work due to quarantine be covered by FMLA or PFLA?

If the employee or her family member were not sick, the absence from work would not be covered by FMLA.

What about Vermont’s paid sick time?

If an employee or her family member were sick, that absence would be covered by VESTA.  Remember also that VESTA can be triggered when a school or day care is closed.

What about employees who are just too scared to come to work?

Certainly, no one should be forced to come to work.  However, if there has been no evidence of exposure and no obligation to self-quarantine, those employees should understand that they will need to use their PTO for this absence.

What about employees who still choose to travel to an affected area?

If employees are choosing to travel to a region of the country or the world with a high rate of illness from this virus for a vacation or other non-essential reason, you can advise them that they may need to self-quarantine upon their return, and that they may be asked to use their PTO for that purpose.

Can we take employees’ temperatures, or require them to undergo medical screening?

As of now, you cannot take employees’ temperatures as a screening measure.  The ADA allows that type of procedure only when the World Health Organization has declared a global pandemic, which it hasn’t done so far.  If an employee falls ill at your workplace and cannot leave on his or her own accord, you should try to isolate that person and call 911, rather than examining that person yourself.

Can I ask for a doctor’s note before a sick employee can return to work?

While many employers have policies that allow them to request a doctor’s note if an employee has been out sick for several days, consider being flexible in the event an employee stays home because they are sick.  It may be unreasonable for an employee who simply has a bad cold (or who may have a mild case of COVID-19) to go into his or her primary care physician, urgent care or the emergency department.  The current advisories are telling people to recuperate at home, and not risk infecting others.

What do I do about employees gossiping about each other?

Certainly, employees these days may have a heightened awareness of their co-worker’s health status and travel plans!  Supervisors and managers should be prepared to shut down gossip, but to bring the issue to human resources or upper management.  If an employee appears to be coughing and feverish, that person is entitled to some privacy from their co-workers, but human resources should be prepared to discreetly remove him or her from the workplace.

Pay particular attention to employees raising concerns that could give rise to discrimination claims.  For example, be sure you are listening for hostility exhibited towards employees of Asian descent or older workers.

Does my company have an obligation to tell employees if there has been exposure at the workplace?

You should take the advice and follow the guidance of your local health department.  If there is a confirmed case of COVID-19 at your workplace, you will be asked to work with local health officials to provide them with information, and they will take the lead on what information should be provided to whom.

What about OSHA?

We all know that OSHA requires employers to provide a safe and healthy workplace for its employees.   Unless the workplace requires close, physical contact with potentially ill people, there are no specific OSHA standards covering COVID-19.  I would encourage you to keep up to date on the current information on the OSHA website (https://www.osha.gov/SLTC/covid-19/) and your state’s guidelines.

Remember to keep in mind OSHA’s anti-retaliation provisions.  If employees come to you with complaints that you are not doing enough to “keep them safe,” listen compassionately and objectively.  Refer them to the CDC website so they can be assured that you are on top of things.  Ask them for specific ideas – they may have thought of something you haven’t!

Hang in there, everyone!  We’ll get through this. . .

Click here to to find out more about Heather Rider Hammond, Employment & Labor Relations attorney.

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