Alabama reported no known COVID-19 cases as of this weekend, however, it is becoming apparent that the time for preparation for a pandemic is starting to end, and the time for action items is beginning. To that end, it seems that many law firms are starting to compile answers to some frequently asked questions.
With Spring Break Plans On the Immediate Horizon, Can I Prohibit Employees from Traveling?
No. But employers can ask where the employee has traveled, and if the employee has traveled to an area designed Level 3 by the CDC, ask the employee to self-isolate upon return. This guidance, however, now has to be tempered by the fact that new cases are popping up every day in the United States and this will continue to multiply exponentially. So, while this guidance sounds good today, ask again in a week or two or three.
If I Think An Employee May Have COVID-19, What Can I Do?
You can do a few things. For example, you can ask if the employee has symptoms such as fever or a dry cough. You can also direct those employees who have virus-like symptoms or who are at high risk for infection (they live in a house where someone else has it) to go home.
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 work. If they can work from home, you can allow it. You can also tell other employees that they may have been exposed to COVID-19 though you should still try to keep confidential the identity of the person. Employers may also wish to inform co-workers in close contact with the sick worker that they should stay home for 14 days of self-isolation too to minimize the risk of further spread in the workplace. Ask the sick worker about all of the close contacts he or she has had so you can do contact tracing.
Can I Tell Employees to Just Stay Home if They Are Sick or Have a Fever?
Yes. The situation arises regarding whether the employee will be paid during that time, whether that time off is attributed to vacation or other paid time off. Companies are struggling with a response here; Trader Joe’s just offered more flexibility for employees in such cases. Each employer will have to find the right answer for itself. The CDC advises that you can require an employee to be fever and symptom free for 24 hours. Consider a temporary suspension on your illness policy; yes, there may be an employee who will abuse this but a generous policy can potentially stop a serious outbreak within your company.
If the Situation in the United States Worsens, Do Some Rules Change with a Pandemic?
Probably. The EEOC has advised, for example, that taking the temperature of all employees may violate the ADA under some circumstances, 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 March 8, 2020, a pandemic has not been “declared” though several states such as New York have already declared states of emergency. Employers should be cautious for now but this has the potential to change very quickly.
Can I Require Employees to Implement Infection Control Procedures, Like Mandatory Hand-Washing?
Yes. As I’ve also noted before, employers do have the obligation to provide a reasonably safe workplace. So, you should be encouraging employees to take such measures too. Here are ten songs you can encourage employees to sing too. https://ew.com/music/coronavirus-covid-19-hand-wash-songs/
Are There Any Alabama Resources To Be Aware Of?
Yes, the Alabama Department of Public Health has launched a website here: https://www.alabamapublichealth.gov/. For the latest on COVID-19, visit https://www.cdc.gov/coronavirus/2019-ncov/index.html. The Alabama Department of Public Health can now test for coronavirus at the state laboratory. The ADPH Bureau of Clinical Laboratories began testing for COVID-19, the illness caused by coronavirus, on March 5. Physicians have also been provided guidance for specific testing criteria. To contact the ADPH: https://www.alabamapublichealth.gov/about/contact.html. Every indication is that the COVID-19 outbreak will get considerably worse before it gets better. One need only look to Italy for such an example. Employers need to be ready now to act.
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(NOTE: A special thanks to Daniel Schwartz with the Connecticut Employment Law Blog.)
Bernard D. Nomberg has been a lawyer for more than 20 years. Bernard has earned an AV rating from Martindale-Hubbell’s peer-review rating. In 2019, Bernard was named a Super Lawyer for the 7th year in a row.