With Connecticut and other neighboring states now reporting COVID-19 cases, employers need to be prepared to act quickly as COVID-19 cases become more prevalent in the region.
As a preliminary matter, employers may consult the CDC, state DPH websites and their local health department for the most up-to-date information on how employers should respond to COVID-19 in the workplace.
Here are some frequently asked questions (“FAQs”) that you may find useful. Because the information from the CDC is continuously being updated and the answers below may change accordingly, please regularly refer to the CDC website at https://www.cdc.gov/coronavirus/index.html for additional information.
With Spring Break Plans On the Immediate Horizon, Can I Prohibit Employees from Traveling?
No. Employers can ask where the employee has recently traveled, and if the employee has traveled to an area designated Level 3 by the CDC, the employer may ask the employee to remain out of work for a period of time to ensure that they have not contracted COVID-19. If the employer requests the employee to stay home, then the employer will need to determine whether the employee will be paid during that time or will be required to use accrued leave. The answer to this question may depend on the employer’s policies and union contracts, and employers should consult with their human resources departments and/or legal counsel to determine the best approach under the circumstances.
While this guidance is applicable today, expect additional developments in the coming weeks. For example, on Sunday, March 8, 2020, the CDC advised Americans not to take cruises. We expect that the guidance from the CDC will continue to evolve over time.
If I Think An Employee Has COVID-19-Like Symptoms, What Can I Do?
According to the CDC, the symptoms of COVID-19 are fever, cough and shortness of breath. Employers should be careful before jumping to conclusions about whether an employee has contracted COVID-19. However, an employer may direct employees who have virus-like symptoms or who are at high risk for infection (i.e., they live in a house where someone else has been confirmed to have COVID-19) to go home. Employers also may require that an employee present a return-to-work certification from a health care provider before returning. Note that many employers have policies and/or union contracts that determine when a doctor’s note may be required, so employers should consult those provisions as well.
If I Get a Confirmed Case of an Employee Having COVID-19, Can I Do Anything Then?
Certainly, you can tell the employee that they are not allowed to work and require the employee to provide medical documentation clearing them to return to work. If they can work from home, you can allow it. You also may consider expanding your policies on telecommuting in order to reduce the risk of spreading the disease. You can tell other employees that they may have been exposed to COVID-19, but you should keep the identity of the subject employee confidential.
Employers also may wish to inform co-workers in close contact with the sick worker that they should stay home for a period of time to ensure that they have not contracted COVID-19. Again, the employer’s policies and union contracts may determine whether the employee is paid during this time, or whether they must use accrued leave. The employer also can ask the sick worker about all of the close contacts he or she has had at work. Further, the employer should refer to any applicable CDC guidelines and/or consult with a physician in order to determine if any other precautionary measures should be taken. The outbreak at Biogen in Massachusetts these past few days shows the serious disruption one sick employee can cause.
Can I Tell Employees to Just Stay Home if They Are Sick or Have a Fever?
Yes. As discussed above, the employer’s policies and union contracts may determine whether the employee is paid during this time, or whether they must use accrued leave. Trader Joe's just offered more flexibility for employees in such cases by extending its paid leave policies, although details are still being worked out.
The CDC advises that you can require an employee to be fever and symptom free for 24 hours. Some employers are giving consideration to a temporary suspension of their sick leave policy, but you may want a physician to certify that the employee has been confirmed to have COVID-19 or been exposed to a verified case. In addition, requiring a return-to-work certification will help the employer to protect other employees.
If the Situation in the United States Worsens, Do Some Rules Change with a Pandemic?
The EEOC has advised, for example, that taking the temperature of all employees may violate the ADA, but has indicated that the rules may change during a pandemic such that the illness may pose a "direct threat" to others. As the EEOC has stated:
“During a pandemic, employers should rely on the latest CDC and state or local public health assessments. While the EEOC recognizes that public health recommendations may change during a crisis and differ between states, employers are expected to make their best efforts to obtain public health advice that is contemporaneous and appropriate for their location, and to make reasonable assessments of conditions in their workplace based on this information.”
As of March 8, 2020, a pandemic has not been officially "declared," though several states such as New York have already declared states of emergency. Note that a declaration of a state of emergency by an individual state means that they believe a disaster is imminent, but it does not suspend the application of federal laws such as the FMLA and ADA. Employers should be cautious for now, but the situation may change very quickly.
Does COVID-19 Fall Within Connecticut's Existing Paid Sick Leave Law?
While the CTDOL website doesn't indicate an answer, we think the answer is “yes”. However, because the Connecticut PSL law only covers a week's worth of time, employers will still have to address the additional time that employees with COVID-19 should remain out of work.
Can I Require Employees to Implement Infection Control Procedures, Like Mandatory Hand-Washing?
Yes. Employers already have the obligation to provide a reasonably safe workplace, so you could require (or at least strongly encourage) that employees take preventative measures. For example, requiring employees to wash their hands before having any contact with other employees would be relatively low impact. In addition, the preventative measures will depend on the nature of the employer and the risks involved. Certain industries, such as health care providers, may have more robust requirements. If you are unsure of what measures you can or should take, please consult with your legal counsel.
Are There Any Connecticut Resources To Be Aware Of?
Yes, the State of Connecticut Department of Public Health has launched a website here.
Every indication is that the COVID-19 outbreak will get considerably worse before it gets better. Employers need to be ready now to act as the situation may change fairly rapidly.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.