Can employers limit travel? What if an employee tests positive for COVID-19? Do employers have to let employees work from home? Guidance here.
Q: What should employers do if employees inform them they have COVID-19? Should employers tell co-workers?
A: Employers need to balance the obligation to ensure a healthy and safe work environment with privacy and anti-discrimination obligations under state and federal laws.
The current advice offered by the Center for Disease Control (CDC) is if an employee is confirmed to have COVID-19, employers should inform other employees of their possible exposure to COVID-19 in the workplace. Employers should be thoughtful about who really has a need to know and what each person needs to know to minimize the risk of disclosure of confidential medical information. An employer should maintain confidentiality (that is, don't reveal who has the illness). Employers should treat all information about an employee's illness as a confidential medical record and keep it separate from the employee's personnel file. Employers should also immediately contact local health officials for further guidance.
As a precautionary measure, an employer may want to consider asking all employees who worked closely with that employee to self-quarantine for 14 days to better ensure the virus does not spread. In addition, as a best practice, the employer may want to consider asking a cleaning company to complete a deep cleaning of its workspace. If a company works in a shared office building or area, then it may want to inform building management so necessary precautions can be taken.
Even though the World Health Organization (WHO) has declared a pandemic, and even though many states have declared states of emergency, laws that protect employee rights still apply.
Q: Can I stop employees from going home because they fear they will be exposed to COVID-19 in the workplace?
A: Employees who refuse to work may have protections from adverse action. For example, under the Occupational Safety and Health Act, employees may have the right to refuse to work if all the following conditions are met:
- Where possible, they have asked the employer to eliminate the danger, and the employer failed to do so
- They genuinely believe an imminent danger exists
- A reasonable person would agree there is a real danger of death or serious injury
- There isn't enough time, due to the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection
Section 7 of the National Labor Relations Act, which grants employees the right to act together to improve wages and working conditions, may also come into play in this situation.
If employees express apprehension about working, and the risk of contracting the illness remains low, employers can try to reassure them by discussing the measures the company has taken to protect employees, referring to information from public health officials about the risks of workplace exposure, and suggesting ways they can help further reduce the possibility of exposure. Employers may also want to consider offering the option of working from home if possible, a flexible schedule so they can limit contact with others, and/or also offer paid or unpaid leave.
Note: If employees have an underlying condition that would qualify as a disability, they may be entitled to a reasonable accommodation under the ADA and/or similar state laws. Paid or unpaid leave may be considered a reasonable accommodation.
Q: What about the reverse situation? Can employers ask employees to go home if they are showing symptoms of COVID-19?
A: The answer depends on the symptoms. Individuals with COVID-19 have had mild to severe respiratory illness with fever, cough, and shortness of breath. If employees show these symptoms, employers can ask them to go home and direct them to speak with their doctor. Employers should make information from public health sources available to educate employees about the signs of COVID-19.
Can employers prevent asymptomatic employees from entering the workplace if they, or household members, have traveled to designated WHO or CDC affected regions?
Yes. Employers may prevent such asymptomatic employees from entering the workplace if employers act consistently based on travel activities and do not say or do anything to violate the ADA or other federal, state or local nondiscrimination laws. Employers may want to consider a temporary telecommuting policy, if possible, and placing affected employees on a paid leave of absence during the virus' 14-day incubation period to determine whether the employee is infected.
Q: Can employers prohibit employees from engaging in personal travel abroad?
A: Some states prohibit employers from taking adverse action against an employee for engaging in lawful off-duty conduct, such as traveling to another country. Employers can advise employees to take precautions, including:
- Check the CDC's Traveler's Health Notices for the latest guidance and recommendations for each country to which they will travel.
- Remain alert for fever, cough, or difficulty breathing and avoid the workplace if they develop any of these symptoms.
If employees have traveled or intend to travel, absent a claim the employees have a recognized privacy interest in their travel, employers may ask about their travel plans and take steps to reduce workplace exposure.
Some states prohibit employers from taking adverse action against an employee for engaging in lawful off-duty conduct, such as traveling to another country. The time off may also be protected under federal, state, and local laws entitling employees to job-protected leave. For instance, an employee taking time off to take care of a family member with a serious health condition may be protected under the federal Family and Medical Leave Act, similar state laws, and/or state and local paid sick leave laws.
Q: Can employers require employees who have traveled abroad to work from home or self-quarantine?
A: If an employer has a reasonable objective belief that an employee may have been exposed to the coronavirus and is a danger to the workplace, the employer can require the employee to work from home.
Some employers have asked workers who are returning from any country on the CDC's restricted-travel list to self-quarantine for 14 days and work from home. If working remotely isn't an option for an employee, the employer should consider consulting legal counsel to discuss its rights and obligations before asking the worker to self-quarantine.
Q: Do employers have to allow employees to work from home?
A: In general, employers aren't required to allow employees to work from home. However, telecommuting can help prevent the spread of the illness by allowing employees to work without exposing themselves or others to the virus. Therefore, employers should consider telecommuting as an option for jobs that can be performed remotely.
Note: Telecommuting may be considered a reasonable accommodation if a worker's condition qualifies as a disability under the ADA and/or similar state laws.
Q: What responsibilities do employers have to employees while they are working from home?
A: For non-exempt employees, employers should take steps to ensure all work time is recorded and paid, as well as any overtime. Employers that anticipate having employees working from home for an extended period of time should prepare a simple agreement for employees to sign acknowledging their understanding of the arrangement, including the employee's obligation to maintain a safe workspace as well as the temporary nature of the arrangement.
Telecommuting arrangements should make clear that employees are expected to maintain safe conditions at the home office and to practice the same safety habits as they would in their office on the employer's premise. This is likely not practical or necessary for employees asked to work from home for only 14 days during an incubation period. Employers should consult with their workers' compensation carrier(s) to ensure telecommuting employees fall with the policy's coverage. However, the telecommuting policies and/or agreements should state that the employer assumes no responsibility for injuries that occur in the employee's home office outside the agreed upon work hours.
The telecommuting policy should also state that the employer assumes no responsibility for injuries to third parties who may be present at the employee's home office. Employers should also determine what expenses they will reimburse in this situation. In some states, including California, employers are required to reimburse the employee for reasonable cost of any internet and phone service needed to perform work duties. There may also be tax implications of the employee working from home.
Q: What other steps should employers take to ensure employees work effectively from home during a pandemic?
A: Employers should ensure the company's IT infrastructure supports the employees working from home and that the employees have the equipment, whether company-provided or personal, as well as internet bandwidth to perform all required work. Employers should consider communicating to employees their general expectations including:
- While working from home, employees will still be expected to complete their work assignments, be available during regular business hours and communicate with their supervisor and others as needed.
- Employees should continue to adhere to all company policies.
- The employer retains discretion to permit, or not permit or discontinue a telecommuting arrangement at any time.
- Employees are responsible for maintaining the confidentiality of all work-related information and follow the company's confidentiality policies.
These items can be covered in the agreement mentioned above. Under these unique circumstances, employers may need to consider making their work from home arrangements more flexible than usual. For example, if employees are asked to work from home due to community spread of the virus, children are likely to be home from school.
Q: May employers require employees to provide medical releases before they return to work?
A: In its interim guidance, the CDC has advised that employers should not require a healthcare provider's note for employees who are sick with acute respiratory illness to validate their illness or to return to work. This is because healthcare providers and medical facilities may be extremely busy and unable to provide documentation in a timely fashion. Employers should consider accepting expedited forms of release (e.g., email). Any information employers collect must be kept confidential and separate from the employee's personnel file.
- Protecting your workforce and understanding policies as your organization responds to COVID-19; see available webcasts here.
- Get customizable email templates and in-depth information on direct deposit, recent legislation and other valuable topics in the COVID-19 Employee Communications Toolkit.
- Helpful information can also be found here: ADP Employer Preparedness Toolkit — Coronavirus Disease (COVID-19)
The information provided by ADP is for general informational purposes only and is not legal, accounting or tax advice. The information and services ADP provides should not be deemed a substitute for the advice of such professionals who can better address your specific concern and situation. Any information provided here is by nature subject to revision and may not be the most current information available on the subject matter discussed.