COVID-19 AND THE WORKPLACE: KEY EMPLOYER QUESTIONS ANSWERED

The COVID-19 pandemic has dramatically affected our society over the past several months by limiting our activities and ability to gather in public. It has also raised several key questions for employers. In this article, we look at a few of these issues.

Can employers require employees to get the COVID-19 vaccine when it becomes widely available?

The answer is yes, but with a few caveats. Under the Americans with Disabilities Act (ADA), employers can require vaccines if they are “job related and consistent with business necessity.” There are exceptions, however.

If an employee has a disability or medical condition that prevents him or her from getting vaccinated, or a “sincerely held religious belief” that he or she cannot be vaccinated, employers must make “reasonable accommodations.” Such accommodations could include remote working arrangements, requiring mask wearing, or alternative scheduling, as long as the work can still get done. If the possible reasonable accommodations are not practical, employers do generally have the right to terminate workers who refuse the vaccine.

Another matter to consider is whether a vaccine mandate makes sense from a business perspective if it would be disruptive to operations or employee morale.

Can employers require employees to wear personal protective equipment (PPE), such as masks and face shields, and must employers provide it without charge?

The answers are yes, and yes. Employers can require employees to wear appropriate PPE while working or on the premises, under threat of discipline or termination. This is consistent with PPE requirements for any other workplace hazard. Employers must also provide this equipment at no charge and replace it when appropriate.

Can employers require employees to be tested for COVID-19?

 Yes. The ADA requires that any mandatory medical test of employees be “job related and consistent with business necessity.”

Given the easy spread and severity of COVID-19, an employee with the virus could pose a threat to the health of others. Thus, an employer may require COVID-19 testing of employees (usually those who are symptomatic or have been in close contact with someone who has tested positive). Employers who do this should be consistent in their application and enforcement of this mandate.

What should an employer do if an employee is known or suspected to have COVID-19? 

If an employee is confirmed to have COVID-19 or exhibits symptoms, they should immediately be separated from other employees and customers and sent home or told to stay home. Employers should not require sick employees to provide a COVID-19 test result or healthcare provider’s note to validate their illness, qualify for sick leave or return to work. Healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely manner.

State laws may apply here as well: CT, ME, MA, NJ, NY and RI all have laws requiring employers who meet designated criteria to provide paid leave. Links to these state laws are provided at the end of the article.

The federal Families First Coronavirus Response Act (FFCRA), which required paid sick leave in 2020 was not renewed. So, the mandated FFCRA leave ended on December 31, 2020. However, the tax credit to reimburse employers for paid leave was extended through March 31, 2021. In other words, FFCRA leave is no longer required, but if employers decide to provide it (or are required to under state or local regulations) they are eligible to take the tax credit for leave taken through the end of March.

For employers who do not need to provide sick leave, or when available sick leave is insufficient, they may wish to consider an emergency leave policy so employees who have, or may have, COVID-19 do not come to work. Businesses with 50 or more employees generally have to comply with the federal Family and Medical Leave Act (FMLA), which requires leave be made available for a “serious health condition.”

If an employee tests positive for COVID-19, OSHA requires that employers take appropriate actions to protect workers from infection, such as cleaning and disinfecting affected areas, notifying other employees and/or implementing a screening program in the workplace (i.e. temperature checks and/or employee questionnaires). 

When should an employee known or suspected to have COVID-19 be allowed to return to work? 

  • CDC guidelines1 advise employees be allowed to return to work if:
  • At least 10 days have passed since symptom onset and;
  • At least 24 hours have passed since resolution of fever without the use of fever-reducing medications and;
  • Other symptoms have improved.

Persons infected with the virus who never develop COVID-19 symptoms may discontinue isolation and other precautions 10 days after the date of their first positive test. Be aware if state or local authorities have more stringent requirements.

Can I be liable as an employer if an employee claims they contracted COVID-19 at work? Could it be a workers’ compensation claim?

The answers to these two questions are unclear at present. To address the workers’ compensation claim question first, under workers’ compensation law, if an employee is injured or becomes ill as a result of workplace exposure, damages are automatic. The question is whether an employee contracted COVID-19 at work or in public on their own time.

Generally, workers’ compensation does not cover routine community-spread illnesses because they usually can’t be directly connected to the workplace. However, some states are considering steps to create a rebuttable presumption that an employee who has been working contracted COVID-19 while at the workplace, particularly for workers in so-called “high risk” positions, such as health care. This presumption places the burden on the employers and/or their insurers to prove that the infection was not tied to the workplace. In any case, the best defense (and a best practice to prevent sickness in the first place) is to follow CDC guidelines closely, including placing shields and guards, providing PPE, and mandating that workers adhere to these guidelines as well.

In some cases, employees have filed claims in court, hoping to get larger damages than through workers’ compensation. The normal standard for winning a liability claim is that the plaintiff has to show that the employer owed a duty to the employee to provide a safe work environment, but breached or failed to meet that duty and, as a result, the employee became ill or was injured. Again, the best defense to such a claim is to be diligent about following CDC guidelines and providing as safe a workplace as possible.

The U.S. Senate has proposed the “Safe to Work Act,” which would provide employers some level of protection against COVID-19 claims, but it has yet to be passed as of this writing, and such protection for employers was specifically not included in the recent COVID-19 relief bill.

Links to state leave requirements:

Please be advised that the author of this article is not an attorney, and no attorney-client relationship is created by its publication. The article is for information purposes only, and employers should discuss any policies or practices with experienced employment law counsel.