Updated: Mar 10, 2021
THRM has created the following Q&A guide to help our clients continue operating essential businesses in a compliant yet practical manner during COVID-19.
COVID-19 Bulletin #2
Operating an Essential Business during COVID-19 Operating an essential business during COVID-19 poses new considerations and challenges for employers and employees. In addition to expanded paid sick leave and emergency FMLA benefits, there are questions about employee health & safety in the workplace, traveling for essential operations, and as we’ve seen in the media, new concerns about employee “sick-outs” and unionizing activity. It is always a best practice to ensure that employment practices and policies are administered in a non-discriminatory manor and documented appropriately, and these times are no exception. THRM has created the following Q&A guide to help our clients continue operating essential businesses in a compliant yet practical manner during COVID-19.
Q&A for Essential Businesses Operating During COVID-19 Pandemic
What are practical considerations for employers who have employees teleworking? Essential business should operate with as few employees on location as possible and allow employees to telework when practical. Employers should adopt a remote work policy for teleworking if they do not already have one in place. Best practices for non-exempt employees include a time tracking system and clear communication that overtime policies still apply, including needing permission to work overtime.
Can I ask employees for medical information about COVID-19? Yes and no. The ADA prevents employers from asking about information that is not job related. BUT, the ADA includes exceptions, including when an employees poses a “direct threat” to the health and safety of others. During COVID-19, employers need to know about their employees’ health as it relates to protecting the health and safety of other employees in the workplace. Employers are still prohibited from asking about an employee’s diagnosis but can ask about symptoms. Employers should not ask teleworkers for medical information unless their ability to work from home is impacted. Should an employee disclose a medical diagnosis, this is confidential information and should be treated as such. Employers must maintain all information about employee health as a confidential medical record in compliance with the ADA.
What medical information is appropriate to ask? Employers can take employees’ temperatures to check for fever but this should be applied universally. For example, an employer may adopt a policy that it will take temperatures of all employees at the beginning of a shift. Limiting temperature taking to employees of a certain age or national origin is a discriminatory practice. In addition to taking temperatures, an employer may ask employees if they are experiencing other symptoms of the virus that include cough and shortness of breath - CDC guidance on COVID-19 symptoms. All employee health information should be kept in a confidential medical record separate from personnel files.
What temperature is considered a fever? According to the CDC, any temperature 100.4 F or greater is considered a fever.
What if an employee refuses a temperature check? If an employer has adopted a business policy of temperature checking and is applying this consistently, an employee who refuses a temperature check can be barred from the workplace. Employers should ensure that they have a plan in place to address this situation before it arises and this plan is applied consistently to all employees refusing a temperature check. Document the employee’s refusal and the employer action taken as result.
Can I send an employee who has symptoms of COVID-19 home? Yes, employers can and should send an employee who is exhibiting symptoms ofCOVID-19 home by taking these steps: 1) Have the employee sign an acknowledgement that minimally includes the employee’s name, date, temperature/symptoms and action taken as result. 2) Inform other employees in the workplace if they have potentially been exposed - but communicate this in a way that does not directly name the individual and keeps medical information confidential. 3) Follow CDC guidelines on how to sanitize areas where the symptomatic employee worked. 4) Consider any FFCRA entitlements that might come into play for the symptomatic employee. 5) Keep all employee health information in a confidential medical record separate from personnel files.
If an employee calls in sick, can I ask why? Employers may ask employees who call in sick questions about their symptoms. Employers should then follow the same steps, 2 – 5, outlined above if the employee has or may have COVID-19.
Can I request a physician’s note when my employee who has recovered from COVID-19 wants to return to work? Yes, but with some flexibility. Healthcare providers may not be readily available to provide traditional “fitness of duty” certifications. Employers should expect to receive and accept clearance to return to work through non-traditional methods and channels such as local clinics and tele-health providers via form or email.
What if an employee has underlying health conditions and refuses to come to work? If it is not possible to accommodate this individual with telework, an employee with a qualifying health condition could request a personal leave of absence as a reasonable accommodation under the ADA. For employers subject to FMLA, employees may be entitled to an unpaid leave to avoid leaving home if the decision is related to a serious health condition of the employee or qualifying family member.
What are considerations for employees who travel in order to continue operations of an essential business? Employers need to check travel restrictions and essential business exemptions for the state(s) where they operate. Be aware that these are changing daily. Provide employees with a letter on company letterhead stating that the company is an essential business exempt under shelter in place orders, the employee’s role in the company’s operations, and a company contact where any questions can be directed.
Do I need to provide employees with PPE, like a mask? The use of respirators / N95 masks should be limited to healthcare professionals. But what about cloth masks? Currently CDC guidance recommends wearing a cloth mask “in public settings where other social distancing measures are difficult to maintain (e.g. grocery stores and pharmacies) especially in areas of significant community based transmission.” OSHA is not yet requiring the use of cloth masks. However, some cities have mandated the use of cloth masks in public. Employers should consider providing cloth masks to employees whose jobs requires interaction with the public and social distancing is not possible. While there is some risk in allowing employees to use DIY masks as it relates to state laws requiring employers to pay for PPE, arguments can be made in rebuttal.
How does COVID-19 affect newly hired employees? An employer may screen applicants for symptoms of COVID-19 after making a conditional offer of employment so long as this policy is applied uniformly to all applicants. An employer can delay the start date of an applicant who has COVID-19 symptoms. An employer can withdraw an offer of employment when it needs the applicant to start immediately but the individual has COVID-19 or related symptoms.
Do I need to report cases of COVID-19 to OSHA? COVID-19 may be a recordable illness when a worker is infected as a result of performing work related duties if the following conditions are met: the case is a confirmed case of COVID-19 (see CDC Information on persons under investigation and presumptive positive and laboratory-confirmed cases of COVID-19); the case is work-related, as defined by 29 CFR 1904.5; and the case involves one or more of the general recording criteria set forth in 29 CFR Section 1904.7 (e.g., medical treatment beyond first-aid, days away from work).
Related resources: https://www.cisa.gov/publication/guidance-essential-critical-infrastructure-workforce https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws https://www.eeoc.gov/facts/pandemic_flu.html https://www.osha.gov/SLTC/covid-19/standards.html https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html