Coronavirus or COVID-19, was first reported to have originated from Wuhan, China beginning on December 31, 2019. The symptoms of the virus manifest as a mild to severe respiratory illness with a fever, cough, and difficulty breathing. The Centers for Disease Control (“CDC”) believes at this time that symptoms may appear in as few as two days or as long as 14 days after exposure. COVID-19 is sweeping the world and has been declared to be a pandemic by the World Health Organization (“WHO”). In an attempt to contain the spread of the Coronavirus in the United States and streamline the distribution of federal aid where needed, President Trump has declared a national emergency, and 49 states (including Massachusetts), the District of Columbia, and many other individual cities and towns across the United States have declared states of emergency, allowing them to take extraordinary actions to address the spread of COVID-19.
In the midst of the pandemic, while many academic institutions and other businesses implement building closures and suspensions, employers are left wondering what steps they should take to protect the well-being of employees and the continuing viability of their operations. This is a rapidly evolving situation, and this alert attempts to answer questions employers are asking based on our current state of knowledge.
This alert will also address the just-released Coronavirus directive from Massachusetts Governor Charlie Baker.
In addition, the CDC has recommended several precautionary steps employers can take in order to combat the COVID-19 outbreak and has listed them in its Interim and Guidance for Businesses and Employers. It is highly-recommended reading for all employers. A number of the CDC’s recommendations are discussed below.
Employer – Employee Communication
In order to protect all employees that have not been infected with the virus, employers must communicate with their employees about the importance of staying home if an employee is experiencing signs of a fever or symptoms of a respiratory illness.
Company Sick/Leave Policy
Employers should examine their sick leave policies to make sure that the policies are flexible and in accordance with public health guidance. An employer’s sick/leave policy will determine whether an employee must use Paid Time Off (PTO) in order to account for the employee’s absence or explain alternative approaches to be used in the absence of accrued time. An employer may want to consider waiving any policy that requires the use of PTO for Covid19-related absences; however, employers should be careful to communicate that the waiver is a temporary measure, and will be subject to reconsideration based on changing events. Also, if a waiver is granted, it must be applied in an even-handed manner.
The CDC suggests that employers distinguish between essential and non-essential personnel in order to implement a plan that considers employee absenteeism and how it will affect the employer’s operation.
Non-Discriminatory Policy Making
Caution should be used by the employer to make sure that its policies are non-discriminatory and do not target a person’s national origin. A company’s policy should address plans for dealing with individuals who are infected with the virus as well as persons who share a living space with an infected individual but may not show active signs of the virus.
Some of the normal restrictions on medical inquiries are loosened in a pandemic situation. In 2009, the United States Equal Employment Opportunity Commission (“EEOC”) issued guidelines related to the H1N1 pandemic that are applicable to the current pandemic. Based on the EEOC’s guidance on medical inquiries during the H1N1 pandemic, an employer may ask an employee who has reported feeling ill at work, or who calls in sick, if the employee is experiencing Coronavirus symptoms, such as fever, tiredness, cough, and shortness of breath. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
While non-infected staff and personnel should be notified of possible exposure to the virus, employers should not release the names of infected employees or those who are suspected of infection. Employees have common law privacy rights in their medical information, and there are numerous statutory limitations and restrictions on the disclosure of an employee’s medical information. Therefore, even in a pandemic situation, employers should exercise significant care with respect to safe guarding medical information.
Non-Exempt v. Exempt Employees
Employers must be mindful of an employee’s exempt or non-exempt status. An employer is obligated to compensate an exempt (salaried) employee his/her full salary for all work performed within a work week. The employee’s entire salary for the work week must be paid if the employee performs any work related task remotely. Non-exempt (hourly) employees must be paid for all work performed whether performed onsite or remotely. Hourly employees are not entitled to compensation unless company work has been performed. (Reviewing and responding to company emails are considered work for the company.)
Governor Baker’s Announcement Prohibiting Large Gatherings
On March 15, Governor Baker, relying on recommendations from the CDC and the Massachusetts Department of Public Health (“DPH”), issued orders to go into effect on March 17 (and remain in effect through April 5, unless extended) that are designed to mitigate the spread of COVID-19, including the prohibition of gatherings of more than 25 people. A number of employers have asked whether this prohibition effectively shuts down all office settings where there are 25 or more employees. The answer is “no”. While the Governor’s order does not specifically address private businesses, it does apply to any “event or activity that brings together 25 or more persons in a single room or single space at the same time in a venue such as an auditorium . . . large conference room, meeting hall. . . or any other confined indoor or outdoor space.” Based on the order, a company would be prohibited from conducting a company-wide meeting of employees in one single space (and, of course, such would be highly ill-advised under the current circumstances), but a normal distribution of employees throughout an office-setting would not be prohibited by the Governor’s order.
In addition to remaining alert to the changing conditions of these unique, dynamic circumstances and to the mandates and suggestions of the CDC, OSHA, DPH and other federal, state and local health officials, employers must also take a common sense approach to deciding what in-person contacts are necessary and to maintaining the social distancing recommended by the health professionals.
Information regarding COVID-19 is constantly being updated and released by official organizations such as the CDC, WHO, and OSHA. Employers should take active measures to keep abreast of the changes and to monitor their policies accordingly. Prince Lobel will be closely monitoring the situation and will provide updated guidance as more information becomes available.
If you want additional information regarding employer’s rights and responsibilities relating to the Coronavirus, please contact Daniel Tarlow (firstname.lastname@example.org or 617-456-8013), Joseph Edwards (email@example.com or 617-456-8131) or Laurie Rubin (firstname.lastname@example.org or 617-456-8020), the authors of this alert.