A few days ago, I published an article about the things that employers need to know about face masks and temperature taking now that businesses are starting to bring employees back to the workplace. But there’s so much more to COVID-19 than just those two things. So as promised, I asked attorney and friend Carrie Cherveny if she would answer a few more questions. Here’s part two of our conversation.
Carrie Cherveny is senior vice president of strategic client solutions in HUB International’s risk services division. In her role, Carrie works closely with clients to identify compliance risks across the organization and develop responsive strategies that ensure compliance and further overall organization goals, including risk mitigation when it comes to various insurances such as health and welfare programs and employment practices liability.
And you know I mention this every time, but please don’t forget that Carrie’s comments shouldn’t be construed as legal advice or as pertaining to any specific factual situations. If you have detailed questions, they should be addressed directly with your friendly neighborhood labor and employment attorney.
Before we get into the first question, I want to take a moment to define a term – contact tracing. According to the Center for Disease Control (CDC) website, contact tracing is “a core disease control measure employed by local and state health department personnel for decades, is a key strategy for preventing further spread of COVID-19.” It’s considered to be “part of the process of supporting patients and warning contacts of exposure in order to stop chains of transmission.”
Carrie, contact tracing has come up a lot in conversations about COVID-19. Are employers required to do contact tracing?
[Cherveny] The answer here may vary by state and local law. Employers should check with their counsel to determine under what circumstances, if any, the employer may be required to engage in contact-tracing for an employee who tests positive for COVID-19. Likewise, state and/or local laws may require employers to report positive COVID-19 test results to a local health official.
If an employee tests positive for COVID-19, are companies required to tell other employees? What about customers?
[Cherveny] In its guidance to employers, the CDC instructs that ‘If an employee is confirmed to have COVID-19, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the Americans with Disabilities Act (ADA).’ Employers must ensure that they store the employee medical information and records in a separate and confidential secured file.
An employer may share only the diagnosis and not the identity of the employee with the workforce. The employee’s identity may be shared only with those who ‘need to know’ and the definition of ‘need to know’ is strictly construed and extremely limited. For example, an employee responsible for conducting contact tracing would ‘need to know’ the identity of the diagnosed employee. The employer may let the workforce know that the workers may have been exposed to someone who has tested positive for COVID-19. In that case, the identity of the employee is not important – only the ‘what’ (i.e. the exposure).
Likewise, employers should consider informing any other individuals who have come into close contact with an employee who is diagnosed with COVID-19. For example, the employer may inform customers or vendors that also came in close contact with the employee. According to the CDC, ‘close contact’ means within 6 feet of a diagnosed person that was not wearing any personal protective equipment (PPE) for approximately 15 minutes in a non-healthcare setting.
If an employee feels uncomfortable returning to work – maybe they or a family member are in a high-risk category – what options does a company have?
[Cherveny] Without more information, merely ‘being afraid to come to work’ is not a qualifying leave reason under any regulated leave entitlement. Employers may nonetheless want to consider flexibility in their leave of absence and paid time off policies. Here are a few examples:
Wage Replacement Benefits
Employers may consider providing employees with expanded paid time off or what some refer to ‘pandemic pay’. Employers may build their program based on criteria that it establishes but must be sure to be both clear and consistent.
Employees who are not able to work because they are personally medical quarantined or are home to care for an individual subject to a quarantine may be eligible for emergency paid sick leave under the Families First Coronavirus Response Act (FFCRA). Employees must work for a qualified employer (i.e. under 500 employees and not eligible for an exemption) to be eligible for these benefits. More specifically, the U.S. Department of Labor (DOL) explains that employees may be eligible for:
- Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to federal, state, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis.
- Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (pursuant to federal, state, or local government order or advice of a health care provider), or to care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor.
Approximately two-months ago, employers were suddenly and without much preparation forced to send all or part of their workforce home to work. Since the initial ‘shelter in place’ of the U.S. workforce, many employers have learned how to operate their businesses and manage their workforce remotely. Companies and leadership that traditionally would not have entertained a remote workforce have now found ways to manage their telecommuting employees and continue to serve their clients and customers. In addition to enabling employers to continue operating their business during the COVID-19 crisis, a remote working environment offers employers an avenue to mitigate the risk of community spread of the virus in the workplace. It’s against this backdrop that employers may consider (or reconsider) their current approach and policy for telecommuting as an alternative work-arrangement particularly for their high-risk employees.
Employers that continue to utilize telecommuting within their workforce should ensure they have a clear telecommuting policy and agreement provided to (and signed by) each telecommuting employee. Telecommuting policies may include provisions such as:
- Eligibility for a telecommuting arrangement
- Description of policies that remain in effect while working remotely
- Time and attendance expectations – most especially for non-exempt employees
- Confidentiality and data security requirements
- Workers compensation
- Employee acknowledgement including a statement of that ‘at will’ relationship
- Employment labor law postings for remote employees
- Accountability and consequences for non-conforming behavior
Employee’s Own Health Condition
The CDC has identified a number of conditions that can potentially put individuals at greater risk if they contract COVID-19. If the employee requests a change in their working arrangements due to an underlying medical condition outlined by the CDC, the employer is responsible for following the interactive process under ADA to determine if a reasonable accommodation can be made.
The Equal Employment Opportunity Commission (EEOC) instructs that there may be low-cost solutions available to employers that will provide an accommodation for the employee. For example, there may be ‘materials already on hand or easily obtained [that] may be effective’. Employers may make changes to the work environment including one-way hallways, social distancing in common areas, reduced seating capacity in conference and break rooms, and installing barriers between employees and customers. Employers may also consider temporary job restructuring, temporary transfers to a different position, and modifying work schedules.
However, employers should proceed with some caution. The EEOC has made clear that an employer may not exclude an employee from the workplace solely because they have what the CDC has identified as a higher-risk condition for serious illness with COVID-19. An employer may only do so if the employee’s condition poses a ‘direct threat’ to the employee’s health and that direct threat cannot be eliminated by a reasonable accommodation. Recently, the CDC has issued updated guidance that in fact suggests that employers allow employees that are “high risk” to continue to shelter in place during the initial phases (what the CDC refers to as Step 1 and Step 2) of return to work. Employers will have to balance the CDC guidance against their obligations for equal employment opportunities and non-discrimination in the workplace under the various employment laws enforced by the EEOC.
It’s important to note that the ‘direct threat’ is a very high standard and requires a case-by-case assessment. Employers must rely on reasonable medical judgment about the specific employee’s condition (not a generalized assessment) using the most current medical knowledge and/or the best objective evidence. However, even if the employee’s condition does pose a direct threat to the employee’s health, the employer still may not exclude the employee from the workplace unless there is no available reasonable accommodation that will not pose an undue hardship on the business.
Employee’s Family Member’s Condition
As a threshold matter, under certain circumstances, an employee may be eligible for emergency paid sick leave (see the above discussion).
The ADA does not apply if the employee is asking for an accommodation because the employee lives with someone who is at a greater risk of complications if they contract COVID-19.Under the ADA, reasonable accommodations are only required for an employee’s own disability and does not cover disabilities of other individuals that the employee lives or interacts with. It’s important to note that the Genetic Information Non-discrimination Act (GINA) prohibits an employer from asking an employee about their family member health conditions. However, employers subject to the Family and Medical Leave Act (FMLA) should consider whether the employee’s circumstances qualify under the FMLA to care for an immediate family member with a serious health condition.
Employers may consider a telecommuting arrangement for an employee who requests a variance in their position because of a high-risk individual at home. Additionally, employers may also consider job variances to allow an arrangement that will address the employee’s safety concerns such as job sharing, staggered schedules, or a temporary reassignment of duties. Likewise, an employer may re-visit its paid time off programs to identify some flexibility or expansion of wage replacement benefits.
Last question. Everything with COVID-19 is moving so fast and changing quickly. How can employers stay on top of the latest information?
[Cherveny] Both the DOL and the EEOC have a notification system – you can register with each to receive notifications and news informing you of updates and changes. Additionally, there are some excellent blogs written by attorneys and industry experts specializing in staying on top of this ever-changing landscape. Below are some compliance resources that may be helpful:
Again, I want to extend a huge thanks to Carrie for sharing her experience with us. I hope you’ll check out some of the resources she’s provided. It’s unfortunate to say, but I feel like we will be dealing with COVID-19 matters for quite some time. HR professionals will want to create a resource guide for themselves to stay current.
Image captured by Sharlyn Lauby after speaking at the Flora Icelandic HR Management Conference in Reykjavik, Iceland15