COVID-19: Employers’ Legal Rights and Obligations

By: Denise C. Davis, J.D. and Jacob T. Palcic, J.D.

In responding to the COVID-19 coronavirus outbreak, employers have a general duty to provide a safe and healthy work environment, under the Occupational Safety and Health Act (OSHA). Follow updated CDC guidance to minimize your risk of breaching this general duty. Steps may include sending employees home if they exhibit coronavirus symptoms, encouraging the self-reporting of such symptoms, promoting good hygiene, and ramping up routine office cleaning.

Though employers have broad discretion to protect the workplace from the spread of infectious disease, it’s important not to go overboard and risk violating workers’ rights. If an employee is coughing, has a fever, or has difficulty breathing, you can send them home and prevent them from coming to work. But don’t pry into whether an employee has an underlying medical condition that could render them particularly vulnerable to COVID-19. That’s a disability-related inquiry, generally frowned upon by the Americans with Disabilities Act (ADA). If an employee tests positive for coronavirus, had contact with someone who tests positive for coronavirus, recently traveled to a coronavirus hotspot, or has been ordered to self-quarantine by a governmental entity, you can and should require that they self-report this information. And you can and should alert any colleagues, clients, or vendors with whom that employee was in close contact within the previous 14 days. But don’t reveal the names of infected employees without their consent. You may require all employees to disclose where they go on personal travel, and monitor individuals closely for symptoms of coronavirus if they’ve been to a restricted area that is under a Level 2, 3, or 4 Travel Advisory according to the U.S. State Department. You may even bar an employee from the workplace if they’ve been to a coronavirus hotspot like China. But don’t show prejudice to people of Asian descent in violation of anti-discrimination laws, or assume that someone of Asian descent is more likely to have COVID-19.

By the same token, employers have broad discretion to continue running a profitable business, subject to the general duty to provide a safe and healthy work environment. Generally, you can require healthy employees to come to work despite their fears of infection; currently, those fears don’t yet rise to the level of “imminent danger” under OSHA. But don’t insist that an employee travel on business to China, for example, over their objections. You can generally refuse an employee’s request to wear a medical mask or respirator—the World Health Organization (WHO) advises that if an employee isn’t a healthcare worker, masks aren’t nearly as effective to prevent infection as other methods, like hand-washing.

If an employee stays home from work, either because they’re sick or because they’re concerned about getting sick, you can require that they use up any accrued sick or vacation time. Once that runs out, the Fair Labor Standards Act (FLSA) doesn’t require you to pay an hourly employee who’s not working (though you may have to pay salaried employees their entire workweek salary if they’ve performed at least some work during the week). You must provide leave (which can be unpaid) under the Family and Medical Leave Act (FMLA) to eligible employees to care for themselves or certain family members, but this doesn’t cover employees who are simply fearful of getting sick. Bear in mind that even if you’re not legally required to pay employees to stay home sick, many employers are doing so anyway to relieve the financial pressure that could cause a sick employee to come into work and infect coworkers, clients, and others. You should review your absence policies and determine what, if any, changes to make during this outbreak and apply them consistently to avoid other legal challenges.

It’s conceivable that some or all of your employees will need to work remotely for a period of time. Have a remote work policy that specifies whether employees are simply encouraged to work from home, or are absolutely barred from the workplace; how remote meetings will take place; whether employees are prohibited from meeting with third parties during the period; and its anticipated end date. Decide what devices employees may bring home with them, and whether IT security protections could accommodate work outside of the home (e.g., in coffee shops or libraries). And develop an action plan—including a communication plan—to ensure you can update employees in this fast-changing situation.

If you have questions about this article, contact a member of Yoder Ainlay Ulmer & Buckingham’s employment law practice group at (574) 533-1171.

Disclaimer: These materials are for informational purposes only and should not be construed as legal advice on any specific facts or circumstances. We recommend you consult a lawyer if you want professional assurance your interpretation of these materials is appropriate to your particular situation.

©  Yoder Ainlay Ulmer & Buckingham, LLP [March 13, 2020]