March Update on How Employers Can Respond to COVID-19 with FAQs

Since publishing our previous post last month, there have been a number of significant developments related to the 2019 Novel Coronavirus – now officially called “COVID-19.”  Notably, during the week of February 23, 2020, the U.S. Centers for Disease Control and Prevention (“CDC”) reported community spread of the virus that causes COVID-19 in California, Oregon, and Washington.  Community spread in Washington resulted in the first death in the U.S. from COVID-19, as well as the first reported case of COVID-19 in a health care worker, and the first potential outbreak in a long-term care facility.

Recent Developments and Federal Guidance

• CDC has published an Interim Guidance for Businesses and Employers, cautioning employers to use the guidance to determine the risk of the Coronavirus, and not to use race or country of origin to make a determination. The guidance covers recommended strategies for employers to use, including: (1) actively encouraging sick employees to stay home; (2) separating sick employees; (3) emphasizing staying home when sick, respiratory etiquette and hand hygiene by all employees; (4) performing routine environmental cleaning; and (5) advising employees before traveling to consult CDC’s Traveler’s Health Notices and other CDC guidance.  Additionally, the guidance states that if an employee is confirmed to have COVID-19, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace, but maintain confidentiality as required by the Americans with Disabilities Act (“ADA”).

• OSHA has developed a comprehensive Safety and Health Topics webpage dedicated to COVID-19, including materials on hazard recognition, medical information, standards and regulations, control and prevention, and additional resources. There, OSHA informs that workers with increased exposure risk include those involved in healthcare, deathcare, airline operations, waste management, and travel to areas, including parts of China, where the virus is spreading, and that OSHA standards, including those for personal protective equipment (PPE, 29 CFR 1910.132) and respiratory protection (29 CFR 1910.134), require employers to assess the hazards to which their workers may be exposed and how such assessments should be made.  In addition to PPE and respirator protection requirements, OSHA lists the General Duty Clause as another relevant standard that may apply, and directs employers that, although common cold and flu are exempted under OSHA’s recordkeeping requirements (29 CFR Part 104), COVID-19 is a recordable illness when a worker is infected on the job.  According to OSHA’s Deputy Director of the Directorate of Enforcement Programs at the ABA OSH Law Conference being held this week, OSHA is currently working on additional safety guidance.
• CDC has updated/issued the following travel guidance related to COVID-19:
  • China — Level 3, Avoid Nonessential Travel (updated February 22);
  • Hong Kong — Level 1, Practice Usual Precautions (issued February 19);
  • Iran — Level 3, Avoid Nonessential Travel (updated February 28);
  • Italy — Level 3, Avoid Nonessential Travel (updated February 28);
  • Japan — Level 2, Practice Enhanced Precautions (updated February 22);
  • South Korea — Level 3, Avoid Nonessential Travel (updated February 24).
• On March 3, 2020, the CDC reported 60 total U.S. cases of COVID-19 in 12 states, six of which were deadly. Just the following day, on March 4, 2020, the CDC reported 80 total cases in 13 states, nine of which were deadly.  The numbers alone demonstrate the rapidly developing nature of this virus.  As of March 4, 2020, California and Washington have the largest number of reported cases (between 20 to 30).
• State and local governments have also been responding to the crisis. On February 25, 2020, San Francisco Mayor London Breed declared a local emergency to prepare for Coronavirus (although there are still zero confirmed cases of COVID-19 in San Francisco residents).

Frequently Asked Questions for Employers

Many employers are being asked questions from customers, vendors, and employees about how they are preparing and responding to COVID-19.  Below are some of the FAQs that are most common with the guidance from the CDC.

Can I encourage my employees to stay home if they are sick?

• Yes, in accordance with the CDC’s guidelines, employees who have symptoms of acute respiratory illness are recommended to stay home and not come to work until they are free of fever (100.4° F or greater using an oral thermometer), signs of a fever, and any other symptoms for at least 24 hours, without the use of fever-reducing or other symptom-altering medicines (e.g. cough suppressants). Employees should notify their supervisor and stay home if they are sick.

Can I mandate my employees to report their illnesses to supervisors?

• Yes, if an employee is unable to report to work due to illness, you can require that the employee notify his or her immediate manager before the scheduled start of the shift. However, employers should not require its employees to disclose the nature of the illness at the time of the absence for privacy issues.  The ADA does not permit such an inquiry in the absence of objective evidence that symptoms will cause a direct threat. Such evidence is completely absent before a pandemic occurs and/or is declared by the CDC, which it has not as of this date.
• However, if a pandemic has been declared by the CDC and an employer has a reasonable belief that an employee has been exposed to, or has contracted, COVID-19, or is experiencing flu-like symptoms, such as a fever or chills and a cough or sore throat, the employer can send that employee home to protect the rest of the workforce, ask the employee to disclose certain health information and may require the employee to undergo medical testing before returning to work.

Can I require my employees to seek medical attention when they are ill?

• Depending on the nature of the illness, employers should encourage their employees to seek medical care if their symptoms necessitate it, otherwise, to address their symptoms at home. And, if an employer reasonably believes, on an individualized assessment, that an employee might have been exposed to COVID-19, the employer can ask the employee to disclose certain health information and may require the employee to undergo medical testing before returning to work.

Can I require my employees to provide medical documentation of being cleared to return to work if they have been sick with a fever?

• Yes, an employer may require that an employee provide a medical note supporting clearance to return to work after three (3) days of being absent for work due to illness. However, as a practical matter, the CDC’s guidelines are that companies should not require a healthcare provider’s note for employees who are sick with acute respiratory illness to validate their illness or to return to work, as healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely way.

If I have an employee who has been traveling for work or personal, can I require him or her to disclose if they traveled in areas where they may come in contact with COVID-19?

• If the CDC or state or local public health officials recommend that people who visit specified locations remain at home for several days until it is clear they do not have pandemic influenza symptoms, employers may ask whether employees are returning from these locations, even if the travel was personal.

Do I have to provide a respirator or face mask if an employee requests one?

• No, not if the employer has determined that respiratory protection is not required to address a health hazard (i.e., there is no foreseeable exposure to a toxic chemical or an airborne illness in the workplace). In such circumstances, the employer is permitted to refuse requests from employees to voluntarily use respirators.  However, if employers are inclined to permit voluntary use of N-95 filtering face-piece masks, or more substantial masks, it is important to understand that OSHA considers those to be respirators, covered by OSHA’s respiratory protection standard.  Surgical masks are not covered by the standard.  Employers must confirm that use of the masks does not create a health hazard before permitting voluntary use of the masks, and then must provide a copy of or the contents of Appendix D of OSHA’s respirator standard to any employee permitted to use the masks.  If more substantial respirators (e.g., tight-fitting full face respirators) are permitted for voluntary use, the employer must also fit test the employee and ensure a medical evaluation is completed to confirm the employee can safely use the respirator.  Notably, OSHA has stated that surgical masks are not considered respirators; thus, to the extent employers are permitting the use of surgical masks or employees are asking to wear surgical masks, Appendix D and other requirements would not apply.

As this situation continues to evolve in the United States, our firm has developed a task force of labor, employment and OSHA attorneys to timely advise companies on the federal and state and local guidance and requirements.