In the face of the coronavirus pandemic, employers want to know the answers to dozens of legal questions, such as can they ask to check employees’ temperatures, or pay older and more vulnerable employees to stay home, or not disclose the fact that an employee has become infected.
There is no black-and-white answer to every employer or general counsel’s question, according to a fast-paced webinar Friday conducted by three lawyers from Morrison & Foerster. But the lawyers went on to tackle dozens of pressing coronavirus issues on the minds of U.S. employers.
Christine Lyon, a partner in the Palo Alto office, kicked off the session with a discussion of privacy and the Americans with Disabilities Act. “Privacy concerns may seem secondary,” Lyon said, “but companies are facing really hard questions about what they can and cannot ask employees.”
Here are some questions she sought to answer:
Question: Can an employer ask an employee about their health?
Lyon: The main applicable law here is the U.S. American for Disabilities Act, along with state medical confidentiality laws.
The federal law generally prohibits inquiries of employees about their health, but an employer can ask about everyday cold or flu symptoms, things that don’t rise to the level of a disability. Asking about more serious health conditions can cross the line.
An exception is if the employer has a reasonable belief, based on objective evidence, that the employee will pose a direct threat to others due to a medical condition, or if the employee’s medical condition will impair their ability to perform essential job functions.
Merely the fact that the coronavirus has been declared a pandemic is not considered enough objective evidence to define it as a direct threat.
The situation is fluid, however, and as the disease spreads the answer could change. We haven’t crossed that line yet.
Q: Can an employer take an employee’s temperature regularly, or ask him or her to do it and voluntarily report the result?
Lyon: A week ago the answer would have been no. But the Center for Disease Control has recommended that employers in several highly contaminated counties perform daily temperature checks on employees. If an employer is not in those counties, the answer is less clear; but the needle is moving more toward employers being able to justify these exams, especially in high-risk areas.
Q: When an employee becomes sick with the virus, can an employer tell other employees about it?
Lyon: You can tell employees what they need to know for their own safety, but try to protect the identity and confidentiality of the sick employee. Privacy is also a human relations issue, and it fosters an environment of trust. You can protect the health and safety of the workplace while still protecting privacy.
Q: Can the company require employees to self-report if they are diagnosed with the virus, or if they have been in contact with an infected person?
Lyon: If you do want them to self-report, even if you make the request voluntary, you are balancing the risks. You might go ahead and ask it, while being thoughtful of the ADA.
Q: Can the employer demand that an employee who seems ill undergo a medical exam?
Lyon: Generally, the ADA restricts employers from demanding medical exams unless they can show there is a direct threat. That is a high standard.
Q: Can the employee be asked about recent travel?
Lyon: That is not covered under the ADA but could be a privacy issue. It’s probably permissible under this situation to ask where they have traveled in the past 14 days. For privacy reasons, try not to seek more information than you need.
Q: Can the employer ask a previously sick employee for a doctor’s note that verifies the employee is fit to return to work?
Lyon: Yes, but don’t ask what illness they were out with.
Q: What about keeping records on infected employees?
Lyon: The employer can maintain the information received, but it should be kept separately and not in regular human resources files. The employer should restrict access on a need-to-know basis.
Employment attorney Janie Schulman, a partner based in Los Angeles, discussed issues involving time off, discrimination and accommodations, such as:
Q: Can an employee stay away from work if they are afraid of catching the virus?
Schulman: Generally no, unless the employee has an underlying condition such as a lung problem or has reason to believe they have been exposed to the virus.
Q: When schools close because of the virus and a parent must take care of their children, can they take paid leave?
Schulman: Generally that is not covered under federal family leave laws, but some state laws may give time off.
Q: Can an employer send a sick employee home?
Schulman: Generally employers have broad discretion over employees and can send them home. In this case, employees would generally need 14 symptom-free days before returning to work. The employer still has to consider the ADA.
Q: What if the company is suffering financially because of the impact of the virus? Can it furlough employees? At what point does a furlough become a mass layoff?
Schulman: If a furlough is longer than six months it will fall under the U.S. Worker Adjustment and Retraining Notification Act [WARN Act]. Then the employer must give 60 days warning before the furlough. Some exceptions include a natural disaster or unforeseen business circumstances, but a pandemic may not qualify. It’s untested right now. Many states have mini-WARN statutes with different notice times.
Q: Who pays for leave when employees go out?
Schulman: There are a variety of sources. Voluntary leave is typically unpaid. Usually an employee can substitute sick time, vacation time or paid time off. Nonexempt employees only need to be paid for hours worked. For exempt employees, they must be paid full salary for any workweek in which they perform any work or the employer risks losing their exempt status.
Q: What about working from home or remotely?
Schulman: A lot of employers are going there on a scale never before contemplated. Employees must still be paid regular wages. For nonexempt employees, the employer can’t text or email them at all hours without paying overtime. Employers must also abide by state laws on such things as breaks or mealtime. The employer must plan on how to supervise this situation.
Q: Can a company send older, more vulnerable workers home?
Schulman: Generally no. The employer must still abide by all anti-discrimination laws, including age discrimination. The company must also provide reasonable accommodation for any disabled person sent home to work.
Litigation associate Niles Pierson, also based in Los Angeles, discussed general health and safety regulations, including:
Q: Does an employer have to disclose when an employee contracts the virus?
Pierson: In the case of a pandemic, the virus is a recordable illness that should be reported in accordance with Occupational Safety and Health Administration record requirements as any injury or illness.
Q: What are some best practices for employers?
Pierson: Public health officials recommend developing an outbreak response plan that includes a procedure for activating and terminating the plan. Employers can encourage employees to stay home when sick, and can prohibit or restrict business travel.
Q: Is the company liable if an employee contracts the virus on the job?
Pierson: Any work-related exposure to the illness should be covered by workers’ compensation.
Q: What if some employees start making demands?
Pierson: Federal labor law permits employees to engage in concerted activity. Regarding the coronavirus, this activity could include work stoppages, or demanding to work from home, or asking the employer to take certain precautions. The employer cannot retaliate against these employees for their activity.