Michelle S. Strowhiro Carole A. Spink May 6 2020 COVID-19: FAQs on employees experiencing symptoms and employee absences McDermott Will & Emery | Employment & Immigration - USA Michelle S. Strowhiro, Carole A. Spink Employment & Immigration FAQsWith rapid developments in local, state and federal guidance and law, the appropriate approach for each employer in relation to COVID-19 will vary depending on the nature of their work, the industries served and their location and size, among other considerations. This article outlines what employers need to know about employees experiencing symptoms and employee absences.(1)FAQsMust employees disclose if they have tested positive for COVID-19?In general, no. However, the Equal Employment Opportunity Commission (EEOC) has stated that employers may ask employees who report feeling ill at work, or who call in sick, questions about their symptoms to determine if they have or might have COVID-19. This guidance suggests that employers may ask employees to inform them of any positive COVID-19 test results, so that employers can take measures to protect the health and safety of other workers – an obligation that employers bear under the Occupational Safety and Health Act. That said, depending on the state of employment, state law may further restrict an employer's ability to ask an employee for their diagnosis (eg, California). Employers should make every effort to maintain all information about employee illness as a confidential medical record for purposes of Americans with Disabilities Act (ADA) compliance.Can employers require employees to report if they or their co-workers have COVID-19 symptoms?In general, no. Based on EEOC guidance, employers may ask employees to report symptoms that they are exhibiting. Employers may want to consider implementing reporting mechanisms that will help employees to feel comfortable reporting this type of information and allow the employer to efficiently track the information.Asking employees to report their co-workers' symptoms could present more challenges than solutions. This request runs the risk of inviting employees to make reports based on possible biases and stereotypes regarding national origin or other protected categories and encouraging employees to ask intrusive questions of their co-workers. Instead, employers should inform and encourage employees to self-monitor for signs and symptoms of COVID-19, particularly if they suspect possible exposure, and to self-report accordingly.Can employers require that employees have their temperature taken at work?On 18 March 2020 the EEOC issued guidance confirming that taking employees' temperature and asking if they are experiencing COVID-19 symptoms are legally permissible under the ADA and the Rehabilitation Act. Although taking an employee's temperature may be legally permissible under federal law, it is not recommended that employers have an employee take the temperature of other employees. Moreover, many people infected with COVID-19 do not have a high temperature and are asymptomatic. If an employee is assigned to do the screening, the individual must wear appropriate personal protective equipment, including masks and gowns.Employers should also bear in mind that they may be exposed to a heightened risk of a later claim for discrimination if employees (eg, managers) are tasked with gathering medical information about their co-workers and later making employment decisions about those co-workers.As an alternative, employers should consider requesting that employees take their own temperature at home before reporting for work and reiterating that if an employee has a fever (ie, a temperature at or in excess of 100 degrees Fahrenheit) the employee should stay at home.If employers opt to require employees to have their temperature taken before entering the workplace, they should treat this as compensable time. An employee's body temperature and illness status is medical information, which must be kept confidential. Any employer that chooses to scan employee temperatures should do so in a way that maintains such confidentiality for each employee. Moreover, a no-touch geothermal thermometer should be used to reduce potential virus spread by way of the thermometer itself.What should employers do if an employee informs them that they suspect they have COVID-19?Employers should have a discussion with the employee reporting symptoms of COVID-19, as outlined below. Discussion of an employee's confidential medical information should be handled by designated individuals within the company who are trained to handle sensitive information and knowledgeable regarding what questions may be asked pursuant to the relevant jurisdiction's laws (eg, HR professionals who manage the company's leaves of absence).Following such a discussion:the employee should be instructed to stay away from the workplace;the employee should contact a medical professional immediately. The employer should not permit the employee to return to the workforce without a fitness-for-duty certification or until the employee otherwise meets Centres for Disease Control and Prevention (CDC) guidelines for when it is safe to return to work after experiencing COVID-19 symptoms;if the employee is found to have contracted COVID-19, the CDC and local health department should be contacted immediately, likely by the employee's healthcare provider;if the affected employee had contact with other employees or worksites while ill, the employer should inform other potentially affected employees (taking care to keep the affected employee's identity and medical information private) and ask those who have any symptoms to stay at home either on a leave basis or through telework until those employees receive a fitness-for-duty certification or until the employee otherwise meets CDC guidelines for when it is safe to return to work after experiencing COVID-19 symptoms;the employer should contact a hazmat company to disinfect the job site or workplace so that it may provide assurances to other asymptomatic employees that it is safe to return to work; andif the employee contracted COVID-19 in the workplace, documentation may be required by the employer, including an Occupational Safety and Health Administration record of any serious work-related injuries or illnesses. The Occupational Safety and Health Administration has advised that COVID-19 can be a recordable illness if a worker is infected as a result of performing their work-related duties, but employers are responsible for recording cases of COVID-19 only if all of the following are true:the case is a confirmed case of COVID-19;the case is work-related (as defined by 29 CFR 1904.5); andthe case involves one or more of the general recording criteria set out in 29 CFR 1904.7 (eg, medical treatment beyond first aid or days away from work).In taking the above actions, the employer must be careful to avoid discrimination against individuals who are perceived as having contracted COVID-19 or who may be from high-risk areas. In addition, the employer must comply with the confidentiality restrictions imposed by the Family Medical Leave Act (FMLA), the Health Insurance Portability and Accountability Act and similar state and local laws.How should employers handle an increase in employee absences relating to potential or suspected COVID-19 cases?To account for higher rates of short and long-term absences from the workplace, employers may offer current employees additional work or overtime opportunities or consider retaining temporary workers in the interim. Employers that use temporary workers should understand that in many jurisdictions, the company may be considered a joint employer with the temporary services provider. Employers should contact counsel to address joint employment considerations when contracting with a temporary services provider.What are employers' obligations if an employee cannot come to work because schools are closed and they need to care for children?If the Families First Coronavirus Response Act (FFCRA) applies, two components of paid time off (PTO) are potentially triggered. The FFCRA applies to employers with fewer than 500 employees as further defined in the US Department of Labour regulations. If an employee is unable to work or telework because of a need to care for a child whose school or place of care is closed, or whose childcare provider is unavailable, due to COVID-19, the employee is eligible to receive up to 12 weeks' paid leave at two-thirds the regular rate of pay (capped at $200 per day) as follows:for the first two weeks of leave, emergency paid sick leave of up to 80 hours; andfor the following up to 10 weeks, paid FMLA leave (applies to only employees who have been employed for 30 or more days).Employers cannot require employees to take other PTO, holiday or previously provided sick leave before availing to this mandated sick leave.In addition, state and local law in an employer's jurisdiction may provide employees with some protected time off for this purpose. For example, the city of San Francisco recently enacted an ordinance requiring companies of 500 or more employees to provide certain paid leave time for COVID-19-related reasons, including childcare-related reasons. Employers should consult with counsel to determine if local or state law may govern this issue.Absent a legal requirement to do so, employers may consider providing employees with additional flexibility during this time to permit them to address emergency and unexpected events that affect their ability to secure childcare. Such time off could be provided paid or unpaid.Under the new Coronavirus Aid, Relief and Economic Security Act unemployment expansion for Pandemic Unemployment Assistance, employees who are forced to quit due to childcare issues relating to COVID-19 may now be entitled to receive unemployment insurance benefits through their state.An employee is experiencing mild illness symptoms (eg, a fever or cough) but has asked to continue working. Should they report to work?No, employees who are ill should not come to the workplace. If an employee reports to the workplace exhibiting symptoms, they should be sent home immediately.If an employee is not too ill to work:for exempt employees, to the extent possible, employers should encourage flexible or remote-working capabilities. Employers should work closely with exempt employees to determine whether their position enables temporary remote working during the period of illness and what, if any, additional tools or technologies can assist in remote working to avoid or limit any business disruptions; andfor non-exempt employees, employers should review whether remote work is feasible, paying particular attention to the employer's ability to ensure continued compliance with wage-hour laws during remote work times. For employers which elect to permit certain non-exempt employee positions to work remotely, additional check-in procedures and oversight should be utilised to ensure productivity and compliance with timekeeping, break and other federal, state and local wage-hour considerations. Employers should:review and implement parameters regarding the tracking of employee time;monitor meal and rest periods (if applicable);oversee, approve and track overtime; andfacilitate supervisor management of employees to continue to meet business needs.If an employee is too ill to work:if the FFCRA applies to the employer, employees who are unable to work or telework due to certain COVID-19-related reasons are entitled to up to 80 hours of paid sick leave at the employee's regular rate of pay (capped at $511 per day). This includes employees who are unable to work or telework because they are experiencing COVID-19 symptoms and seeking a medical diagnosis, as well as employees who have been advised by a healthcare provider to self-quarantine because of COVID-19;depending on the state of employment and the employer's policies, the employee may be entitled to use accrued unused holiday or PTO or paid sick leave during their time out of the business;to further incentivise employees not to come to the workplace when they are ill, employers may want to consider advancing additional PTO or sick leave to employees who have no accrued unused PTO or paid sick leave at this time. Employers that do not provide paid sick leave to employees may consider issuing additional paid sick leave time to employees for 2020 in response to COVID-19 and, in any case, must comply with the FFCRA if applicable. In certain states, paid sick leave can be issued without any additional obligation to pay out the additional time on termination. Employers should contact counsel to design a state law-compliant policy; andemployee time out of the business may also be protected and governed by state and local law.For further information on this topic please contact Michelle Strowhiro or Carole Spink at McDermott Will & Emery by telephone (+1 312 372 2000) or email ([email protected] or [email protected]). The McDermott Will & Emery website can be accessed at www.mwe.com.Endnotes(1) For further information please see here.Lindsay Ditlow, partner, assisted in the preparation of this article.