By Randall Sutton, Partner – Employment Law & Litigation Practice Group
Given uncertainty about the spread and possible effect of the coronavirus, Oregon employers should be evaluating their policies and thinking through potential issues well in advance. Hopefully, closures, quarantines and other challenges felt globally will not be replicated here. Nevertheless, some advanced planning is advised as we all wait to see how this issue plays out.
At this stage, the Coronavirus has been declared a “pandemic” by the World Health Organization. That declaration is relevant to employers as it affects the employer’s right to take stronger action with regard to individuals who may be symptomatic.
There’s a lot to cover, with many employment laws implicated by this issue – OFLA/FMLA, Wage & Hour law, ADA, OSHA, WARN Act and much more. Let’s get started.
Leave Policies & Protected Leave for Sick Employees
Oregon Sick Time: All Oregon employers are required to provide up to 40 hours of sick leave, with most employers required to offer paid leave. Employees who have been employed at least 90 days are entitled to use sick time they have earned. Employers can offer PTO or other substantially equivalent paid leave in lieu of Oregon Sick Time. Remember that the illness of family members is also protected under the Oregon Sick Time law. A “public health emergency “ triggers protection under the Oregon Sick Time law, so absences due to the closure of a business, school or day care by a public health authority would also qualify.
Family Leave for the Employee: Coronavirus should be considered a “serious health condition” under state and federal family leave laws. Even if an employee has mild symptoms, the need to quarantine affected employees may incapacitate them from working. For employers subject to the family leave laws, an employee who is unable to work due to suspected COVID-19 illness should be provided with OFLA/FMLA eligibility, medical certification, and designation paperwork.
Family Leave to Care for Sick Family Members: Remember that OFLA allows time off to care for sick kids and for other family members with a serious health condition. This includes parents, parents-in-law, grandparents, grandkids and others.
Use of Vacation & Personal Leave: Some employer policies do not allow employees to use vacation or personal leave for sickness. To encourage employees to stay away from work when they are sick, consider updating your policies to address to allow for use of paid leave for suspected COVID-19 related absences.
Unpaid Leave: To avoid the spread of the Coronavirus, employers should consider relaxing or updating their policies regarding the use of unpaid leave, at least to the extent the absence is for symptoms associated with COVID-19.
Reducing Potential Exposure at Work
Publicize Your Expectations: Employers should clearly state expectations regarding coming to work when one is sick. Each situation will vary, depending on business needs and the employee’s need to work in proximity to others, but employers should consider formally notifying employees that they are expected to stay home if they are sick.
What do You Do If an Employee Shows Up Sick?:
Employers should be careful when assuming that an employee can’t work, particularly if the employee claims to be fine. Employers should familiarize themselves with the symptoms of COVID-19. These include a mild to severe respiratory illness, accompanied by a fever, cough, and difficulty breathing. If an employee is sent home, the employer should document the particular symptoms the employer relied on in making the determination that the employee should be sent home.
Before a pandemic was declared, employers faced a higher burden in justifying sending a worker home. Under the ADA, an employer can send the employee home and require verification of fitness for duty only if, based on objective evidence, either: the employer believes that the employee’s ability to perform essential job functions will be impaired by a medical condition; or the employee poses a direct threat to the employee or others due to the medical condition. If the employee wants to work and denies that he or she is sick, the employer’s position should be well-documented and the employee should be given the opportunity to obtain a fitness for duty certification from the employee’s physician.
Now that a Coronavirus pandemic has been declared, the employer’s burden of proof is lessened. The EEOC allows the employer to send an employee home if the employee exhibits symptoms consistent with the Coronavirus. The symptoms must still be documented objectively, but the employer will have greater confidence that the decision to send the worker home will not be subject to challenge.
What if the Employee Only Claims to be Sick?: If the employer questions whether the employee really is sick, the employer should rely on its written policies for asking for medical verification. Keep in mind that under the Oregon Sick Time and OFLA leave laws, medical verification is sometimes not allowed until the employee has been absent three times.
What if Someone Close to the Employee has been Diagnosed with Coronavirus? Suppose you learn that someone in your employee’s immediate circle has been diagnosed. The employee has no symptoms. What should you do? This is more difficult, and should be evaluated on a case by case basis. The EEOC recommends following the CDC guidelines for risk assessment: https://www.cdc.gov/coronavirus/2019-ncov/php/risk-assessment.html Depending on the nature of the relationship of the employee with the person diagnosed, the degree of risk will vary, with the CDC’s recommended response ranging from self-monitoring and social distancing to isolation per public health orders. This is a rapidly evolving issue. Checking with your local health authority website for guidance is also recommended.
What Can we Tell Other Employees? Remember that employee medical information should be kept confidential and only disclosed to HR and management on a need-to-know basis. This includes the nature of an employee’s illness. That said, an employer may share information with government officials if disclosure is necessary to prevent or lessen a serious and imminent threat to the health and safety of a person or the public. If exposure to your other employees or customers is of concern, you may also wish to share the information with the local health authority to the extent necessary to prevent or reduce the risk of a threat to public health and safety. In such case, if at all possible, you should get the individual’s written or verbal permission to disclose. In such a case, you should take care to provide the minimum information necessary to alert the public health authority.
Keeping the Workplace Safe
Are Employers Restricted from Ordering Employees to Wash Hands, Cover when Coughing etc.? The EEOC consider these sort of precautions unrestricted by the ADA, so employers should feel free to put in place reasonable measures to promote workplace safety. As with other workplace rules, employers can discipline employees who fail to comply.
Can I require Telecommuting for all employees or certain categories of employees? So long as you continue to pay your employees and keep them working, employers are free to temporarily change the working relationship to require telecommuting. Of course, the employer should bear the cost of establishing access to the employee’s mobile device.
Can I ask if employees have a medical condition that places them at a higher risk? Generally, this sort of question would not be allowed. However, given that a pandemic has been declared, to the extent local public health officials believe that certain individuals are at risk, the employer can reasonably conclude that identified categories of employees face a direct threat if required to work onsite. In those cases, the EEOC allows the employer to ask asymptomatic employees to identify whether they are susceptible.
My Employee’s Family Member (or friend, or acquaintance or passerby) is Sick or has been Quarantined. This is more difficult and reasonable minds will differ. The CDC has issued risk-based recommendations for responding to potential exposure. The following table is an excepted from the CDC guidelines regarding risk and actions to take in light of the potential exposure: https://www.cdc.gov/coronavirus/2019-ncov/php/risk-assessment.html
| Level of Potential Exposure |
Actions to Take
|
|
| High Risk:
Living in the same household as, being an intimate partner of, or providing care in a nonhealthcare setting (such as a home) for a person with symptomatic laboratory-confirmed COVID-19 infection without using recommended precautions for home care and home isolation |
If No Symptoms
Quarantine (voluntary or under public health orders) No public activities. Daily active monitoring, if possible |
If Symptomatic:
Immediate isolation with consideration of public health orders |
| Medium risk
Living in the same household as, an intimate partner of, or caring for a person in a nonhealthcare setting (such as a home) to a person with symptomatic laboratory-confirmed COVID-19 infection while consistently using recommended precautions for home care and home isolation |
If No Symptoms:
Recommendation to remain at home or in a comparable setting Practice social distancing Active monitoring as determined by local priorities |
If Symptomatic:
Self-isolation Public health assessment to determine the need for medical evaluation |
| Low risk
Being in the same indoor environment (e.g., a classroom, a hospital waiting room) as a person with symptomatic laboratory-confirmed COVID-19 for a prolonged period of time but not meeting the definition of close contact
|
If No Symptoms:
No restriction on movement Self-observation |
If Symptomatic:
Self-isolation, social distancing Person should seek health advice to determine if medical evaluation is needed. |
| All Other (No identifiable risk)
Situations that don’t fall within the High, Medium or Low Risk categories. |
If No Symptoms:
None |
If Symptomatic:
Self-isolation, social distancing Person should seek health advice to determine if medical evaluation is needed. |
As the table indicates, those who are symptomatic, regardless of the degree of risk, require isolation. That means sending the employee home and considering work from home accommodations. For employees who are not symptomatic, the CDC matrix would not seem to require that employees be sent home or work from home unless a member of their household has been diagnosed and is symptomatic with COVID-19. However, abundance of caution might be suggest otherwise. Employers should look to guidance from their local health authority as to potential isolation for non-symptomatic employees. When in doubt, the employee can be required to work from home with little risk. However, if the employee is not symptomatic and is required to stay home without a telecommuting option, the employer faces more risk.
Should You be Checking Your Employee’s Temperature Every Morning? What about purchasing a forehead or other non-invasive thermometer and having a staff person police employee body temperature on a daily basis? As one might imagine, doing so would likely expose the employer to claims of invasion of privacy. According to the EEOC, measuring an employee’s body temperature is considered a “medical examination” under the ADA. Therefore, in normal instances, the examination is not allowed unless “job related and consistent with business necessity.” Randomly checking all employees whether or not they are symptomatic would not meet this standard. However, the EEOC guidance specifically allows employee temperature checks in the event of a pandemic so long as the local public authority determines that the virus is widespread in the community. Now that a pandemic has been declared, to the extent the virus is widespread in the community, employers may consider using or making temperature checks available.
What if an Employee has Been Travelling? Now that a pandemic has been declared, the EEOC advises that the employer does not need to wait for symptoms to develop before asking questions about exposure during the trip. Until then, employers should not assume that the employee must be quarantined if the employee is symptom-free.
What if the Employee Demands to Wear a Mask? The consensus of medical professionals appears to be that face masks are only necessary when treating someone who is suffering from COVID-19 and are not generally necessary or helpful to avoid exposure. The employer certainly can elect to grant requests to wear masks. However, because the mask is not likely to eliminate danger of death or injury, OSHA guidance would suggest that outside the healthcare worker context, the employer may discipline an employee who refuses to work without a mask.
Can you require that Employees Wear Masks? Now that a pandemic has been declared, the EEOC guidance allows employers to require employees to wear personal protective equipment (face masks, gloves etc.) to reduce potential spread. If an employee has latex allergies or another impairment, the employer should attempt to reasonably accommodate by providing alternatives if possible.
Thinking Ahead Regarding Potential Labor Shortages
The EEOC has published guidance on lawful employer inquiries in preparation for a pandemic. To evaluate future business needs and challenges, the EEOC allows employers to ask employees whether they will need time off in the event of a pandemic. The EEOC allows employers to ask if the employee will need to: a) provide child care if schools or day care centers are closed; b) care for dependents if public services are closed; c) be able to report for work if public transportation is sporadic or unavailable; and d) or not report to work as a result of a member of the household being a member of a high risk category identified by the CDC. The EEOC model allows the employee to collectively answer “yes” or “no” to all four questions, rather than answer each question separately.
Thinking Ahead Regarding Business Slow-Down & Closures
Layoffs: The economic effects of the Coronavirus have already been felt in global business closures and slowdowns. If your business is considering suspending certain operations or reducing the workforce, we recommend obtaining legal advice to handle this correctly. Most employees laid off in conjunction with a closure will be able to file unemployment claims.
Exempt Employees: Remember that unpaid leave can be problematic for exempt employees. If the employee is sick and has used up all available paid leave, the exempt employee’s pay can potentially be docked in full day increments. Partial day deductions are not allowed. However, if the employee is not sick but is taking the day off because your business has closed for the day, the employee’s pay cannot be docked.
WARN Act: Certain large employers (100+ employees) contemplating layoffs should take care to comply with WARN Act notice requirements. The WARN Act allows certain exceptions when layoffs occur due to unforeseen business circumstances. Legal advice is critical for employers subject to the WARN Act who are considering layoffs.
Contract Obligations: Employers who suffer labor shortages or otherwise are unable to perform contract obligations may find relief if their contracts contain a “force majeure” clause. The force majeure clause can excuse parties from performing their contractual obligations in the event of circumstances beyond their control. Legal advice is necessary to evaluate whether the clause may be relevant in specific cases.
This is a complex and rapidly evolving issue. Stay tuned for more information. Please contact our office for specific advice applicable to the needs of your business.
Randall Sutton is a partner in the Employment Law and Litigation practice groups. Randy is also a member of the Health and Wine & Vine industry groups. The information in this article is not intended to provide legal advice. For professional consultation, please contact Randy at rsutton@sglaw.com at Saalfeld Griggs PC. 503.399.1070. © 2020 Saalfeld Griggs PC
