COVID-19 UPDATE from Bellas & Wachowski
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Small Businesses, Employees and COVID-19: Frequently Asked Questions

The ongoing COVID-19 pandemic has raised numerous legal, medical, and economic questions for small-business employers since the outbreak began in mid-March. We at Bellas & Wachowski have attempted to summarize some of the most frequently asked questions with our best answers all in one place.

Health and Safety Issues

How should businesses gauge overall safety and specific risk levels for employees? The federal Occupational Safety and Health Administration has promulgated guidelines that provide steps employers can take, categorizing risk into four levels: very high, which includes only healthcare employees who are either in close contact with or handling specimens from known or suspected coronavirus patients; high, which includes healthcare workers who are otherwise in contact with patients; medium, which includes other workers who interact with the general population in sectors like education, high-volume retail, and other high-density environments; and lower risk, everyone else.

What if an Employee Tests Positive for Covid-19?

Send the infected employee home as soon as you get a list of co-workers he or she interacted with closely (defined as within six feet, for at least 10 minutes) during the previous 48 hours, and also send home anyone on that close-contact list. Do not name the infected employee, for confidentiality reasons. Inform building management, if you work in a shared space. Ensure that those quarantining stay home for at least 14 days after their last exposure, and at least seven days after symptom appear, maintaining a social distance from others and self-monitoring for symptoms like cough, fever, or breathing difficulties. They should not return until they are fever free for at least three days without medication and respiratory symptoms like cough or shortness of breath have at least markedly improved, if not disappeared. While they are out, the business should disinfect all shared spaces and equipment—after waiting at least 24 hours, and ideally opening outside doors and windows to increase air circulation. Upon the employee’s first return to the workplace, they should have their temperature checked and symptoms assessed. Employers are not responsible to report COVID-19 cases to the federal government—that responsibility falls to the healthcare provider who runs the test.

Can a Business Require an Employee Exhibiting Symptoms to Stay Home?

Yes – the federal Centers for Disease Control and Prevention says anyone with influenza-like symptoms should leave and stay away from the workplace, and employers can ask workers to seek medical attention and get a COVID-19 test. The Equal Employment Opportunity Commission has affirmed that these circumstances would not be considered disability-related. Tell other employees that someone in close proximity to them is potentially infected but this is not yet confirmed.

Can a Business Take an Employee’s Temperature at Work, and How Should This Proceed Safely?

Yes – although this normally might constitute a violation of the Americans With Disabilities Act, the EEOC has deferred to the guidance of the CDC as well as state and local health authorities under the present circumstances. Given the sometimes-asymptomatic nature of coronavirus, temperature checks might or might not be helpful. Those taking the temperature checks should be provided personal protective equipment such as face shields and gowns to eliminate or minimize hazards like exposure to bodily fluids or an unfortunately timed sneeze or cough.

Can You Require Employees to Notify You About Exposure, Symptoms or a Positive Test?

Yes, employees should be required to notify their supervisor, get tested if they have not already, and stay at home for at least 24 hours after symptoms end. Those who meet any of these criteria and are outside the workplace at the time should contact their employer via phone or email, and should not come to work.

How can You Tell the Difference Between an Unconfirmed COVID-19 Case and Another Illness?

Err on the side of caution but don’t panic. Among the clues are whether anyone in the employee’s household has had a confirmed or suspected case, whether the person travelled to a part of the country with rising caseloads, or whether the employee was exposed to someone who traveled to such an area. While the symptoms of COVID-19 overlap significantly with those of seasonal influenza, and even the common cold, high fever and dry cough are the most common coronavirus symptoms. For more information, use this chart developed by the CDC and the World Health Organization.

What if You’ve Hired Someone but are now Concerned They Might be Positive?

Employers are entitled to screen anyone, including temperature checks, as long as they are consistent for entering employees based on job type. They are allowed to delay an applicant’s start date, or even withdraw an offer if it’s very time-sensitive, according to the EEOC.

What if an Employee Refuses to Report to Work out of Fear of Infection?

Employees only have this right if they can establish, per the Occupational Safety and Health Act, that they face “imminent danger,” defined as “threat of death or serious physical harm.” This might include caring for patients without protective equipment, or being required to travel to China, but most U.S.-based employees would not meet this standard. This is in part because “imminent” also means that the harm could occur before OSHA would have a chance to investigate the problem. If an employee asks for a mask or respirator, most employers are not required to provide them, although it’s probably a good idea. The CDC has recommended at least wearing cloth facing coverings in areas in close proximity to co-workers or customers, especially in geographic settings with high rates of transmission.

What if an Employee Suspected of Having COVID-19 Refuses to Leave Work?

It’s best to treat this gently, at least at first, pointing out that they are potentially putting co-workers at risk, and mentioning any benefits like paid sick leave or vacation time that might ameliorate their resistance. If absolutely necessary, an employer could threaten to either call law enforcement to report them as trespassing or terminate them for insubordination. But these actions, especially in light of current circumstances, could lead to backlash.

Other Healthcare-Related Issues
How Should Businesses Handle Employee-Related Health Information?

Employers must still comply with Health Insurance Portability and Accountability Act (HIPAA) provisions when it comes to COVID-19-related information. However, these only apply to medical providers, employer-sponsored group health plans, or other “covered” entities, and only to individual health information. Otherwise, disclosures can be made as long as you’ve vetted the requesting party and make sure you’ve properly identified them. This can include approaches by government entities seeking to find, identify, or notify family members or others about a person’s location, condition, or death. Gain the person’s written permission if possible but if the person’s health and safety are seriously and imminently in danger, it’s not absolutely necessary. Just limit these disclosures to the minimum that’s absolutely necessary to prevent or control the disease.

How Will Group Health Plans Work for Employees not Currently Working?

Check with your group health plan to see how long an employee on leave can remain covered if they’re not working. Unless you’re self-funded, at a certain point you would need to move from a furlough to an official termination and then offer the employee COBRA coverage. If the employee can’t afford premiums due to being furloughed, it’s possible that you could convince the insurer to continue coverage anyway, or the business could pay the employee’s share temporarily, on a case-by-case basis.

How can I Tell Whether Our Plan Covers COVID-19, and What Other Benefits Should We be Thinking About Right now?

The Families First Coronavirus Recovery Act requires group health plans to cover FDA-approved coronavirus testing and other services without any cost sharing like deductibles or co-payments for as long as the pandemic lasts. Employers also can think about adding offerings, or promoting them if they’re already in existence, such as telemedicine, employee assistance programs, wellness programs, disease management programs, and free or discounted preventive care.

Business Operations
What Policies Should Businesses Have in Place Regarding Remote Work?

Telework is a valid infection control strategy and those with disabilities that put them at high risk for complications can request to do so, according to the EEOC. If your company hasn’t done this much in the past, don’t make spur-of-the-moment decisions but the current moment could be a good time to formalize existing protocols. Triage who can and can’t do their jobs remotely and think about whether your technological infrastructure can handle this scenario, especially in terms of security and privacy; part of that discussion should include firming up or reviewing your bring-your-own-device (BYOD) policy. Make sure employees have the equipment they would need and know what they are and are not allowed to take from the workplace. Make sure they understand whether they need to be available during all normal work hours. Think about how meetings will work – will they be online, and if so, will they be on camera? Try to agree on a single platform, such as Zoom or Skype. What about physical meetings: Can employees meet with one another or with third parties, and if so, should you limit headcount? To ensure that employees do not feel disconnected, distribute agendas beforehand and minutes afterward whenever you have meetings, schedule virtual lunches and other digital social get-togethers, and form mentorships between those who have done remote work in the past and those who are new to it.

How Should Businesses Handle Wage and Hour Issues Like Furloughs and Vacation Time Balances?

Employers do not have to pay wages to those who are not working, with the possible exception of “exempt” employees who perform at least some work during a given work week or employees who must be paid pursuant to obligations under a contract or collective bargaining agreement. Of course, not paying employees could present a public relations issue. As for whether vacation time balance must be used to cover furloughed time – this is mostly up to the employer, again unless a contract or collective bargaining agreement says anything about it. Employees might be able to take Family and Medical Leave depending on their situation and employers can choose to grant this even if the employee technically does not meet the requirements.

What Sick Leave Obligations do Employers Have Under the Families First Coronavirus Response Act?

Employers must provide emergency paid sick leave for employees who cannot work, even from home, because they: are subject to a government quarantine or isolation order; have been advised by healthcare provider to quarantine; have experienced symptoms and plan to get a medical diagnosis; are caring for someone either subject to a government order or healthcare provider’s advice to quarantine; or are caring for a child whose school or daycare has closed due to COVID-19 precautions. Full-time employees can take up to 80 hours of leave, while part-timers can take the average number of hours they work in a two-week period, no matter how long they have worked at their current employer. The employer must pay full wages to those whose own health is in question, up to $511 per day and $5,110 total; and two-thirds of their regular pay rate for those caring for someone else, up to $200 per day and $2,000 total. The Act covers those with fewer than 500 employees and lasts through December 31, 2020.

What Family Leave Obligations do Employers Have Under the Families First Coronavirus Response Act?

For those who have been with their current employer for at least 30 days, the employer must provide up to 12 weeks of leave, 10 of them paid, if their children’s school or daycare is closed due to an emergency government order regarding COVID-19. The first two weeks of leave can be unpaid, but the rest must be compensated for at least two-thirds of the normal rate of pay for the number of hours the employee typically would be scheduled to work, up to $200 per day and $10,000 total. And employers are required to offer the same or an equivalent position upon their return, with certain exceptions among those with fewer than 25 employees; otherwise the Act applies to all employers with fewer than 500 workers.

Can Employees Claim Workers Compensation if They Believe They Caught COVID-19 at Work?

Probably so, if they are a healthcare worker or first responder, otherwise they would have a higher burden of proof. Employees do not need to prove negligence on an employer’s part due to the no-fault workers’ comp system, but they do need to show that they caught COVID-19 during the course of their employment, and due to particular conditions of their work that makes it more likely that they would have caught the disease than someone in the general public. This can include instances of COVID-19 being contracted while on a business trip, although some states require that the employee contracted the virus while performing work-related duties, as opposed to at a restaurant or in their hotel. They would need to provide medical evidence to support their claim, and employers would have the ability to counter with other possible sources of exposure or attempt to show that the medical evidence is more speculative than conclusive. Compensation costs should be limited to lost time due to disease recovery.