With Connecticut and other neighboring states now reporting COVID-19 cases, the time for emergency action plans for manufacturers has arrived.
As a preliminary matter, manufacturers may consult the CDC state DPH websites and their local health department for the most up-to-date information on how they 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.
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. You should be careful before jumping to conclusions about whether an employee has contracted COVID-19 as there are still several respiratory ailments that are circulating, including seasonal flu. However, you 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. You also may require that an employee present a return-to-work certification from a health care provider before returning, though we should note that the CDC is asking employers to consider waiving that requirement. Note that many manufacturers have policies and/or union contracts that determine when a doctor's note may be required, so you 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 that although might be difficult for most manufacturers. 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.
You 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. Your company's policies and union contracts may determine whether the employee is paid during this time or whether they must use accrued leave. You also can ask the sick worker about all of the close contacts he or she has had at work. Further, you 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 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, your company's policies and union contracts may determine whether the employee is paid during this time or whether they must use accrued leave. Walmart, Uber, Trader Joe's and other companies have tweaked their policies to offer employees more flexibility as the virus continues to spread.
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 before giving an employee unlimited sick leave. In addition, requiring a return-to-work certification will help you to protect other employees.
With the Declaration of a Pandemic, Do Some Employment Rules Change?
Maybe. For example, The EEOC has advised 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 Wednesday, March 11, 2020, a pandemic was officially "declared" and several states such as New York and Connecticut 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. You 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, you 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. You 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 a relatively low impact. In addition, the preventative measures will depend on the nature of your company 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.
We May Need to Do an Emergency Reduction in Force, Any Legal Concerns?
Normally, for mass layoffs or plant closures, 60 days notice is required to state and federal officials under the WARN Act. However, there are three exceptions that may come into play: The Faltering Business, the Unforseen Circumstances and Natural Disaster. If this is something you are considering, you may still need to provide notice to the government, just on an expedited basis. You should consult legal counsel under such circumstances.
If We Furlough Staff, Can Unemployment Apply?
Yes. The Connecticut Department of Labor is already expecting an influx of COVID-19 related furloughs and layoffs. In order to avoid unemployment claims, some companies are moving to staggered shifts, where one group of employees will work one week, and another the next, in an attempt to keep enough of the workforce healthy to weather this pandemic wave. OSHA has additional resources on how to keep your workforce healthy here.
How Should I Expect Governor Lamont's Declarations of Civil Preparedness and Public Health Emergencies to Affect My Company?
On March 10, 2020, Governor Lamont declared civil preparedness and public health emergencies related to the COVID-19 outbreak. The primary effect of those declarations is that the Governor is empowered to take actions in order to protect the safety and health of residents in the State. This authority can be quite broad, so manufacturers may be wondering how the declarations affect their operations and interactions with employees.
The short answer is that the mere declaration of an emergency does not immediately impact the state or federal laws governing the employment relationship. However, the Governor and/or local governmental authorities may use the declarations to make changes that would impact employees. For example, the Governor has now cancelled large gatherings. Currently, some decisions are being delegated to local municipal and public health officials, but we anticipate continued orders on a statewide basis as more people are diagnosed with the disease.
From a legal perspective, the Governor's declarations also open up the possibility that he could suspend the application of certain laws that would affect employees. For example, Conn. Gen. Stat. § 28-9 states that the Governor has the authority to "modify or suspend in whole or in part" any statute, regulation or requirement that conflicts with civil preparedness or the protection of public health. This expansive authority only requires that the Governor articulate a clear connection between the suspension of a law and the need for such a suspension in light of the emergency. Under this authority, the Governor could, if he chooses, suspend certain state labor and employment laws. Note that the Governor's powers have no effect on federal laws (FMLA, FLSA, ADA, etc.), so those laws would continue to apply regardless of any changes in state law.
To date, the Governor has not taken any action related to the state's labor or employment laws. However, he is soliciting recommendations from various state agencies on how to address the COVID-19 outbreak. Therefore, manufacturers should continue to watch for updates on https://portal.ct.gov/Coronavirus, and we will continue to report new developments. In the interim, you should continue to follow all applicable laws related to the employment relationship. One such law that you should be aware of is Conn. Gen. Stat. § 28-17, which makes it illegal for an employee to be discharged because the employee is a "member of any organization engaged in civil preparedness." If you have any employees who are involved in such organizations and are called upon to serve during this outbreak, you should give some latitude to the employees to fulfill their role in the organization.
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. Indeed, on Thursday, March 12, 2020, the state issued a dire warning that 10-20 percent of the state is expected to fall ill over the next month or so. The time for action is now.
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.