On Wednesday, March 11, 2020, the World Health Organization (“WHO”) announced that the coronavirus (“COVID-19”) has become a pandemic. The virus has infected nearly 120,000 people in 114 countries. More than 4,000 have died. We answer some basic questions that employers have presented.
Question: I have an employee with flu-like symptoms. Can I send them home or ask them to seek medical attention?
Answer Yes. State and federal laws permit employers to require medical examinations of employees so long as the medical examination is necessary to determine if an employee’s ability to work has been impaired, or if the employee poses a direct threat. The Centers for Disease Control recommends that employees with acute respiratory illness (i.e., cough, shortness of breath) should stay home and not come to work until they are symptom free for 24 hours without the aid of medicine. If you have an employee with a significant cough or otherwise appears to be ill, you can send the employee home and ask them to seek medical attention. You can also ask the employee to return to work with a doctor’s note that indicates the employee’s ability to work without posing a risk of harm to co-workers.
Question: I have an employee that has been exposed to the coronavirus, but they do not show any symptoms. Can I require them to self-quarantine?
Answer: Yes. The CDC is encouraging employees who have been exposed to the COVID-19 to conduct a risk assessment and self-quarantine. In fact, you can require employees to self-report if they have been exposed to COVID-19 either at home or while they were on personal travel. You can ask the employee to stay home for several days until it is clear that the employee is symptom-free. Presently, the CDC recommends a 14-day quarantine period.
Question: Is an employee with COVID-19 protected by the Americans with Disabilities Act?
Answer: Possibly. Several courts have held that a short unpaid leave of absence may qualify as a reasonable accommodation, even if the employee is temporarily unable to perform any work; however, employees who pose a “direct threat” to the health or safety of other individuals may not be protected by the nondiscrimination provisions of the ADA. Whether an employee poses a direct threat must be determined by objective information on a case-by-case basis. Subjective perceptions, including generalized fear of COVID-19, will not constitute a direct threat. Additionally, consideration must be given to the duration of the condition.
Question: Our local health department has issued a mandatory quarantine order for one of my employees. The employee has been off work for a month and is not eligible for any additional leave. Can I terminate her employment due to absenteeism?
Answer: Probably not. Employers should tread carefully and consult with legal counsel before discharging an employee who has been quarantined by a governmental agency. Many states prohibit employers from discharging an employee if doing so violates public policy. Even if the employee has exhausted all available leave, the better course of action in this instance may be to place the employee on an unpaid leave of absence pending resolution of the quarantine order.
Question: Can I require an employee to take FMLA leave if they have been exposed to COVID-19?
Answer: Depends. If the employee has been diagnosed with COVID-19 and the employee’s physician has certified it as a serious health condition, then an employer can require an employee to use FMLA leave. If an employee has been sent home to self-quarantine for 14 days, and a physician has not certified a serious health condition, then this absence does not qualify for FMLA leave.
Question: We had an employee return from an overseas vacation and several co-workers have since become infected with COVID-19. Employees are claiming that our company is responsible for making them sick. Are we liable to them?
Answer: Probably not. Most employers are generally immune from civil liability under their state’s workers’ compensation system if employees become injured or sick during the course of their employment. Exceptions exist, however, and employers should take care to make sure that employees are not intentionally exposed to individuals who have been exposed or infected by COVID-19.