With a government-declared public health emergency and the number of infected persons rising daily, the COVID-19 strain of the Coronavirus is on everyone’s mind right now. With Washington state at the epicenter of the outbreak, Lane Powell’s Labor, Employment & Benefits Team has been fielding numerous questions from employers. Many are particularly concerned about how to best protect the health and safety of their employees while keeping the doors open for business. Below are resources and recommendations for employers to help tackle this public health crisis.
Be sure you are monitoring all the latest government information about the virus, at the national, state and local level. We recommend that you identify one manager who will be responsible for regularly monitoring relevant government websites and communicating updates to all employees. Here are resources for employers:
- The Centers for Disease Control and Prevention updates its website regularly;
- Washington state has been posting information on its Department of Health website;
- The Washington State Department of Health also has resources for employers;
- Local health departments are also making information available on their website. King County has been posting updates to the Department of Health’s webpage.
- And the EEOC has applied its existing pandemic guidance to COVID-19, which can be found here.
Local health departments are continuously updating their guidance to the general public. On March 4, Public Health – Seattle and King County provided guidance recommending (but not requiring) that those with higher risk for COVID-19 stay at home and away from large groups of people as much as possible. Those identified as high risk include people:
- Over 60 years of age;
- With underlying health conditions including include heart disease, lung disease or diabetes;
- With weakened immune systems; and
- Who are pregnant.
The EEOC has recently updated its guidance as well. Key highlights:
- Asking for Information. The EEOC advises during a pandemic, employers may ask employees if they are experiencing the symptoms of the virus, which in this case means fever, chills, cough, shortness of breath or sore throat. As with all medical information, employers must maintain this as a confidential medical record.
- Measuring Body Temperatures. The EEOC considers measuring employee’s body temperatures a “medical exam” and employers may only measure temperatures in specific circumstances. The EEOC advises that because the CDC and state/local health authorities have acknowledged the community spread of COVID-19, employers may take employee’s body temperature. The EEOC cautions that some individuals with COVID-19 do not have a fever.
- Requiring Employees to Stay Home. The EEOC has stated it will not interfere with employers who follow the CDC’s guidance that employees who become ill with symptoms of COVID-19 should leave the workplace.
- Fitness for Duty for Employees Returning to Work after COVID-19 illness. Employers are permitted to require doctors’ notes certifying employee’s fitness for duty; however, the EEOC suggests employers adopt a flexible approach to certification, noting the current backlog for healthcare professionals addressing the outbreak. The EEOC suggests employers accept alternative certification forms, such as a form, stamp, or e-mail to certify that an individual does not have the virus.
Observe Proper Hygiene in the Workplace
Make sure all your employees know:
- To stay home if they are sick;
- To wash their hands for at least 20 seconds each time; and
- To use hand sanitizer if hand washing is not possible.
Telecommuting and Work from Home Options
Many employers should consider telecommuting and remote work options for employees who do not have public-facing roles. If you do not already have a work from home policy, now is a good time to consider adopting one. There are many important considerations when implementing telecommuting and remote work policies. For example, you will want to make sure remote employees are covered by workers’ compensation programs while they are working, and that non-exempt employees are properly compensated for all hours worked. Lane Powell's labor and employment team can assist in reviewing your current policies or drafting policies that fit your workplace needs and culture.
Legal Obligation to Furnish a Safe Workplace
As an employer, you are required by occupational safety and health laws administered by OSHA and state agencies to furnish a place of employment “free from recognized hazards … likely to cause death or serious physical harm.” Ordinarily, federal and state disability discrimination laws, like the federal Americans With Disabilities Act, prohibit employers from requiring employees to submit to medical examinations unless they are “job-related and consistent with business necessity.” Thus, under ordinary circumstances, you cannot require a medical test or exam unless you have objective reasons to believe the individuals being tested have actually contracted the virus or you have medical evidence to support a direct safety threat. However, the EEOC recently issued guidance officially advising that employers may measure employee’s body temperatures. As we’ve previously stated, maintaining a safe workplace as it pertains to COVID-19 also requires keeping up with evolving guidance from the health regulatory authorities. You can learn more at the EEOC website's technical assistance document, "Pandemic Preparedness in the Workplace and the Americans with Disabilities Act."
Use of Paid Time Off and Sick Leave
COVID-19 presents challenges for administering paid time off and sick leave policies. You can suggest and encourage employees to stay home if they are sick. However, you may not be able to require that employees use paid time off or sick leave. Rather, this will depend on where the employee is working and whether the employee is exempt or non-exempt from overtime compensation laws. Some illustrative examples are below:
- Non-Exempt Employees Working in Washington State: According to the Washington State Department of Labor and Industries, employers cannot require non-exempt employees to use paid sick leave (or paid time off used to satisfy sick leave requirements). On the other hand, non-exempt employees have no protections under the sick leave laws if they take time off without using sick leave (unless their leave is protected under another law).
- Exempt Employees Who Work in Seattle: Under Seattle’s Paid Sick and Safe Time Ordinance, exempt employees who work in Seattle are subject to the same rules as non-exempt employees working in Washington, discussed above.
- Exempt Employees Who Work in Washington State, but Outside of Seattle: Exempt employees who work in Washington state but do not work in Seattle are not covered by Washington state’s Sick Leave Law or Seattle’s ordinance. Employers may require those exempt employees who are sick or showing symptoms of illness to stay home and use paid sick leave or paid time off.
Leave for Those Who Contract the Virus
Employees who contract the virus, or who need to care for family members with the virus, may be entitled to leave under Washington’s Paid Family Leave (PFML) law or unpaid leave under the federal Family and Medical Leave Act (FMLA). Both laws will provide leave if the employee or a family member has a “serious health condition” and satisfies other criteria. Depending on the circumstances, COVID-19 might be considered a serious health condition, so an employee might be eligible for unpaid FMLA leave or PFML leave. For more information about Washington’s PFML, employers are advised to consult Washington State’s Department of Employment Security’s PFML website.
ESD has prepared a chart summarizing covered common COVID-19 scenarios and the leaves and benefits that may apply.
Beware of Potential Discrimination Issues
As you are making decisions about if and when to require employees not to come to the workplace, you should take care not to treat certain groups of people differently unless there is a legitimate non-discriminatory reason to do so. For example, employees who are not exhibiting signs of illness should not be treated differently simply because they are from a country that has been hit hard by COVID-19, such as China, Italy, South Korea and Iran. Likewise, you should take care not to single out people with disabilities who may have a chronic symptom such as difficulty breathing. Supervisors have to consider how to tactfully deliver the message to stay home when employees may simply be trying to be conscientious and show up to work even when they are not feeling the best.
Many employers are banning or limiting work-related travel, particularly outside the U.S., unless absolutely necessary. Employers can ask employees about the countries to which they have recently traveled and if they have had any possible exposure to COVID-19. As of March 5, the CDC advised that all non-essential travel to China, Italy, South Korea and Iran should be prohibited. Employers should regularly check the CDC’s Traveler Health Notices for the latest guidance and recommendations for travel.
The CDC is currently recommending that any U.S. citizens who have been to a high risk country stay at home for 14 days after returning to the U.S. If you believe an employee may pose a health threat to other employees due to travel to a high risk country, you can request that the employee stay home for the 14 days following their return to the U.S. You should consider allowing employees who return from travel to high risk countries and are not ill to work remotely during the 14 day period when they are required to stay home. If the employee’s job is not conducive to work at home, employees can use paid time off.
Specific Guidance for Senior Care and Living Providers
Lane Powell’s Senior Living & Long Term Care team recently provided a checklist of considerations for senior care and living providers that we encourage you to review if you are an employer in this industry.
Guidance Provided by the Washington State Employment Security Department
The Washington State Employment Security Department (“ESD”) has a useful webpage for employers who have questions about the effects of COVID-19, including unemployment insurance, paid family and medical leave, shared work and standby status. In the event your organization is considering reducing work hours, furloughing employees or laying off workers, unemployment benefits may be available. If you are facing a situation where you need to temporarily reduce hours or lay off workers, but want to retain employees, you should consider shared work or standby status programs.
Lane Powell’s Labor, Employment & Benefits Team is available to help employers cope with questions that arise during this public health crisis. For more information, consult Lane Powell’s COVID-19 Resource Center or contact Hannah Ard, Katheryn Bradley, Mike Kitson or Priya Vivian.