5. Managing COVID-19-Related Employee Issues

Below is a rundown of several types of circumstances that would require an employer to provide or considering providing leave for an employee, and the appropriate course of action:

• The government has advised that the employee stay home because they fall in a vulnerable population category.

If an employee provides notice that they are unable to come to work because they fall in a vulnerable population category, the employer should engage in the employee in the interactive process. The employer may be obligated to provide a reasonable accommodation, particularly if the request is due to a medical condition or is pregnancy-based. Employers should consider whether these employees can work remotely and/or whether another accommodation is available.  These employees may be eligible for paid sick leave under various laws, including the FFCRA. Importantly, an employer may not compel an employee to stay home simply because he or she falls into a “vulnerable population” category; doing so may result in a violation of the Age Discrimination Employment Act  (ADEA), ADA and/or Pregnancy Discrimination Act (PDA). The EEOC’s Technical Guidance provides that an employer is not allowed to exclude an employee from the workplace “solely because the employee has a disability that the CDC identifies as potentially placing him at ‘higher risk for severe illness’ if he gets COVID-19.”

• The employee is caring for a parent who is old and could get sick or lives with someone who falls in a vulnerable population category.

The employer should determine if the employee is eligible for paid or unpaid leave under various laws, including sick leave laws, the FFCRA and/or the Family and Medical Leave Act of 1993 (FMLA). The employer should provide appropriate request and/or designation forms for any applicable leaves. If leave is not available and/or has been exhausted, the employer may consider other alternatives such as telecommuting or another accommodation.  Generally, under the ADA an employer does not have to accommodate a family member’s medical condition. However, state and local law should be reviewed for possible greater protections than are found under federal law.

• The employee’s child’s day care (or school) is closed and he/she needs to take care of the child or help with schoolwork.

The employee may be eligible for paid sick leave under various laws, including leaves available under FFCRA. If the FFCRA applies, the employer should provide an FFCRA request form. In addition, some state and local laws provide for either paid or unpaid leave in connection with school closures. If leave is not available, the employer should consider the employee and/or media relations impact of discharging the employee, especially if the employee truly has a childcare obligation.

• The employee has been exposed to COVID-19.

Under current CDC guidance, having contact with someone who may have been exposed (“contact with contact”), but who is not exhibiting symptoms himself or herself, does not create a risk requiring or recommending self-quarantine, and therefore does not necessarily preclude the employee from coming to work.  However, employers should also review state or local recommendations and endeavor to be reasonable under the specific circumstances.

• The employee’s spouse has COVID-19.

Under current CDC guidance, the employee should self-quarantine for 14 days after last exposure (meaning, generally, 14 days after the spouse is considered no longer contagious or the employee last had contact with the spouse while the spouse was contagious).  Thus, if verified, this would constitute a legitimate reason for the employee to remain home. The employer should determine if the employee is eligible for paid sick or unpaid leave under various laws, including sick leave laws, the FFCRA and/or the FMLA, as well as company policy and/or a CBA.

• The employee has a medical condition and needs to work from home as an accommodation.

If an employee has a condition that could be a disability, the employer has an obligation to consider and provide a reasonable accommodation. Reasonable accommodations are required if the disability limits the employee from performing essential job functions or otherwise enjoying the benefits of equal employment. The employer does not have to provide an accommodation that poses an undue hardship. As with any accommodation request, the employer should engage in the interactive process with the employee. If the employer has been allowing employees to work remotely, it may be more difficult to deny this accommodation now.

• The employee has COVID-19.

Under current CDC guidance, the employee should self-quarantine if they have COVID-19 or symptoms of COVID-19. Employees should not return to work until they have met the criteria to discontinue home isolation and have consulted with a healthcare provider and state or local health department. Under current CDC guidance, the employee should not return until either Option 1: (a) no fever for at least 72 hours, (b) respiratory symptoms improved, and (c) at least 10 days since symptoms first appeared; or Option 2: (a) no fever, (b) respiratory symptoms improved, and (c) 2 negative tests. Some employers may consider extending this time frame before allowing an employee to return to work. This requires discussion of a number of factors, including current CDC recommendations and the employer’s work environment. The employee may be eligible for paid or unpaid leave under various laws, including sick leave laws, the FFCRA, and/or the FMLA. The employer should provide appropriate request and/or designation forms for any applicable leaves.

Employees who fear infection and refuse to work. 

 Non-clinical fears, anxieties or general desires to avoid exposure to COVID-19 while commuting or working are not likely to trigger affirmative legal protections and employers may be entitled to discipline employees who fail to return to work. However, employers should still be concerned about such employees bringing negligence claims alleging their employers failed to provide a safe workplace. Asking employees to explain the reasons underlying their unwillingness to return will provide employers an opportunity to understand and address employee safety concerns that might underlie future negligence claims.

Disclosure of employees who are infected. 

Employers have been struggling with exactly what information they are permitted to disclose to a public health agency when an employee is diagnosed with COVID-19. The EEOC in April, advised that, at least under the Americans with Disabilities Act, employers may disclose the employee’s name to the public health agency. However, employers will still need to be mindful of other more stringent state restrictions and privacy concerns. The EEOC also said that a temporary staffing agency or contractor that places an employee in an employer’s workplace may notify the employer if it learns the employee has COVID-19. Employers should, however, continue to take steps to limit the number of people who know the name of the employee. While it is important to conduct a close contacts analysis and notify co-workers and other individuals who may have come into contact with the employee, employers should not disclose the employee’s identity. The EEOC also addressed several other important related questions in its updated “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”

Other issues.

Employers may require employees to disclose if they are experiencing COVID-19 symptoms.  The EEOC has stated that employers may ask employees about symptoms pursuant to CDC and other public health official guidance pertaining to COVID-19 to determine whether the employee would pose a direct threat to health in the workplace. State agencies have agreed with the EEOC’s approach. For example, in California, the Department of Fair Employment and Housing confirmed that employers may ask employees if they are experiencing COVID-19 symptoms.