COVID-19 is now officially a worldwide pandemic and a national emergency for the US. It presents difficulties for all aspects of everyday life, including the workplace with issues under the Fair Labor Standards Act (FLSA), Americans with Disabilities Act (ADA), and laws prohibiting discrimination.
What about employees on quarantine, pay issues when employees work remotely, and employees who refuse to come to work? The Department of Labor (DOL) Wage and Hour Division has issued the following pertinent guidance: www.dol.gov/agencies/whd/flsa/pandemic.
Whether an absence related to COVID-19 is paid or unpaid would have to be analyzed based on the employee’s particular circumstances, the employer’s policies and applicable laws, including the likely upcoming “Families First Coronavirus Response Act” which may include an employee paid leave requirement.
Under the ADA, employers are prohibited from making disability-related inquiries and requiring medical examinations except when it is job-related and consistent with business necessity, or there is a reasonable belief that the employee poses a “direct threat” to health or safety that cannot otherwise be eliminated or reduced by reasonable accommodation.
For example, a temperature test is a medical examination under the ADA and the EEOC notes if a pandemic “becomes widespread in the community as assessed by state or local health authorities or the CDC, the employers may measure employees’ body temperature” but goes on to caution that “some people with influenza….do not have a fever.” Employers would need to exercise consistency as far as who to test, and maintain confidentiality with respect to employee medical information.
A pandemic is not an excuse to turn the workplace into pandemonium and legal advice should be obtained before implementing invasive or punitive measures. The CDC recommendations should be followed. www.cdc.gov/coronavirus/covid19. Employers should encourage safe practices by employees such as staying home when sick, social distancing, avoid large gatherings and reconsider in-person meetings. The DOL has recently issued two publications with guidance to employers at: www.osha.gov/SLTC/covid-19/ and www.osha.gov/Publications/OSHA3990.pdf.
Space does not allow for a full discussion on all of the issues potentially presented by the COVID-19 outbreak, but wise employers should consult with legal counsel as this rapidly-evolving situation continues to unfold.