Common Employment Issues in Responding to COVID-19

1. What are disclosure practices for employees diagnosed or exposed to COVID-19?

These employees should be directed to disclose their exposure or diagnosis to a designated person, preferably in Human Resources, so that the company can take appropriate steps. While there may be temptation to do so for benevolent reasons, the employer should not disclose the identity of the employee to other employees such as the manager or colleagues with whom the employee works. The employer can ask the diagnosed or exposed employee whether he or she consents to disclosure of his or her name, but such a request must be voluntary and the employee must not be subject to retaliation if he or she declines. Barring voluntary consent to disclose his or her identity, per CDC guidelines, employers should inform fellow employees of their possible exposure to COVID-19 because of their recent contact with an unidentified employee, and that they should monitor for symptoms. Employers should also check with local health authorities to see if disclosure of diagnosis or exposure is required.

2. Can an Employer mandate the employee stay away from work and quarantine?

As appropriate, employers may send home sick or symptomatic employees or prevent them from reporting to work. Under federal law, an employer can require an employee to leave work where the employee poses a direct threat to the health or safety of others. Employers should consult CDC guidelines, HR, and/or legal counsel in evaluating what constitutes a direct threat.

Employers should assess whether work-from-home is appropriate for an employee not permitted to remain at the worksite under the above circumstances. If not, employees must be able to use applicable PTO consistent with law and company policy. Employers should also consider whether to pay these employees, irrespective of PTO, as an incentive to self-report exposure, symptoms, or diagnosis so as to minimize risk to colleagues and others who are on-site.

Employers cannot require employees to quarantine. However, if an employee’s health care provider requires him or her to quarantine, the employer needs to consider whether the employee can work from home or needs to take whatever leave may be available under policy and applicable law.

3. Can an employer mandate an employee to be tested for COVID-19 or disclose a diagnosis or exposure?

Most likely not, unless otherwise directed by health authorities. Under federal law, an employer must have a reasonable belief, based on objective evidence, that the employee poses a direct threat to the health or safety of others in the workplace or his or her essential job functions will be impaired. This is a complicated, fact-specific analysis and it is recommended employers confer with legal counsel prior to making this determination. Federal law does permit voluntary disclosure.

4. Can an employer prohibit employee personal travel or require business travel?

Generally, an employer cannot control an employee’s travel decisions outside of the workplace. Employers can discourage risky travel and can put in place reasonable restrictions consistent with CDC and WHO guidelines regarding return to work if an employee engages in such travel.

With respect to requiring travel, employers should follow CDC guidance. As the situation is rapidly evolving by the day, employers should seriously consider alternatives to travel where feasible, such as teleconferencing or postponement of inessential business travel.

5. Can an employee take time off of work to care for a family member with COVID-19?

Yes, to the extent that the employee is otherwise eligible for family leave under applicable law or employer policy. Also, employers should note that the federal government is currently considering a significant expansion in sick and family leave rights for certain employers and follow these developments closely to remain in compliance.

With respect to return to work from such a leave, the employer can require medical clearance for the employee before return, assuming the employer has a policy requiring employees on caregiver family leave to provide a fitness-for-duty certification upon return from leave, or if the employee poses a “direct threat to the health or safety of himself/herself or others.”

*For updated information regarding the DOL, please click here.*

The Coronavirus Task Force at Klehr Harrison stands ready to assist you in your business and legal needs. We will continue to provide additional information and guidance as the COVID-19 situation develops.

Author Jonathan Krause is a partner in the Litigation Department at Klehr Harrison.