Understanding and responding to the business and legal impacts of COVID-19

Coronavirus Disease – Information and Insight for Employers

Coronavirus Disease 2019 (COVID-19)

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Where should employers start?
FAQs
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Questions for Employers Related to COVID-19

(March 16, 2020) Because everything about your business comes down to people — your employees, customers, guest, vendors — McDonald Carano will provide information and materials designed to keep employers up to date and informed about the evolving landscape concerning COVID-19 and related matters. If you have specific questions, please reach out to your McDonald Carano attorney or any member of the Employment Law Group.

Background

CDC is responding to an outbreak of respiratory disease caused by a novel (new) coronavirus that was first detected in China and which has now been detected in more than 100 locations internationally, including in the United States. The virus has been named “SARS-CoV-2” and the disease it causes has been named “coronavirus disease 2019” (abbreviated “COVID-19”).

On January 30, 2020, the International Health Regulations Emergency Committee of the World Health Organization (WHO) declared the outbreak a “public health emergency of international concern (PHEIC). On January 31, Health and Human Services Secretary Alex M. Azar II declared a public health emergency (PHE) for the United States to aid the nation’s healthcare community in responding to COVID-19. On March 11, WHO publicly characterized COVID-19 as a pandemic. On March 13, the President of the United States declared the COVID-19 outbreak a national emergency.

 

 

Where should employers start?

It is important to communicate with your employees and, depending on your business, your clients and guests, to let them know you are mindful of the seriousness of the current atmosphere and you are taking every precaution to limit risk and maintain safety to the extent possible under these circumstances.

Based on our work with local, regional, and national employers, we understand that you may have questions and may face questions from your employees that you have never had to answer before.  In an effort to respond to questions that you may have, McDonald Carano’s employment attorneys set forth the following responses to frequently asked questions.

 

FAQs

Can I temporarily modify or adjust policies and procedures currently in place?

Generally, yes.  Assuming a specific contract or collective bargaining agreement does not prevent temporary or permanent modification of the company’s policies and procedures, an employer can change or implement temporary policies to address the impact of COVID-19.

What are some example modifications or revisions to policies and procedures that employers can consider making?

  • In an effort to encourage employees to stay home who are sick or experiencing symptoms:

    • As of January 1, 2020, employers with 50 or more employees and otherwise subject to NRS 608.0197 are required to provide paid time off at the accrual rate of .01923 hours, up to 40 hours of paid leave per benefit year.

      • Employers subject to this new law can offer to frontload paid leave in order to make leave available to employees now.

    • Any employer can offer to provide paid leave for employees who may be diagnosed with COVID-19 or are required to care for someone with COVID-19.

  • Employers can offer to pay employees that may self-quarantine or be subjected to a mandatory quarantine.

  • Flexible work schedules, including opportunities to work remotely.

 

Does COVID-19 trigger FMLA considerations for employers?

Depending on the circumstances presented, it is possible that eligible employees requesting leave could be protected by the Family and Medical Leave Act (FMLA).  Further, employers should review their policies and procedures to determine whether extended leave would also be available.  Employers are also not prohibited, and can consider, extending leave available to employees given the unprecedented nature of COVID-19, even if no legal obligation exists.

Although employees would not be able to, under the FMLA stay at home in an effort to avoid contracting COVID-19, because this is such a new development, employers should consult with their retained counsel to discuss specific information so that their employees are afforded all available leave and resources available to them.

Why is it not a good idea for employers to take employees’ temperature before they enter the workplace? Is it a prohibited medical examination under the Americans with Disabilities Act?

Yes, a blanket policy requiring employees to submit to a temperature test could be considered a medical exam prohibited by the ADA.  It could also be considered an invasion of privacy that could subject an employer to liability under various state laws.  There are certain exceptions available if a pandemic is declared as discussed below.  Also, the EEOC has reiterated that “the ADA and Rehabilitation Act rules continue to apply, but they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC about steps employers should take regarding the Coronavirus.”  https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm

Is taking the temperature of employees before they enter work illegal under the Americans with Disabilities Act or allowed if a pandemic is declared by the CDC or in a locality that has declared a pandemic such that employees may pose a direct threat to the health of others?

This should be assessed on a case by case basis as the facts develop.  The EEOC has issued guidance with respect to a global health emergency, and the WHO has declared a pandemic with respect to COVID-19.  The EEOC’s guidance provides that in the event the CDC or the locality has declared that a pandemic is more severe than seasonal flu or the H1N1 influence from 2009, then it may pose a direct threat so as to justify medical examinations.  So whether it makes sense to take the temperature of all employees before they enter the work will necessarily depend upon guidance from the health authorities.  In addition, an employer will want to make sure that it has a reasonable belief that an employee will pose a direct before requiring an employee to submit to a medical exam such as taking the employee’s temperature.

Any response should be tailored to the facts and guessing at a blanket approach without relevant factual information could put an employer at risk from a legal liability standpoint.  If the CDC or a local health authority declares a pandemic or otherwise declares that employees may post a direct threat to the health of others, it may also be appropriate for an employer to consider temporarily closing the workplace, depending upon the industry type and chance for exposure for the public and among employees.  An employer may also consider requiring a revised fitness for duty firm for employees returning from work after quarantine, after absence related to illness, or even a blanket requirement in the event of a pandemic, which may or may not include a certification that the employee does not have a fever.

However, the CDC also recommends that employees not be required to obtain a doctor’s note in order to return to work because medical providers should be focused on treating ill individuals and any attempt to get a note could be delayed. An employer may also consider putting in place a policy that directs employees to stay home consistent with CDC recommendations.  Currently, the CDC recommends that employees have symptoms of acute respiratory illness are recommended to stay home and not come to work until they are free of fever (100.4 degrees Fahrenheit or great), signs of a fever, and any other symptoms for at least 24 hours without the use of fever-reducing or symptom-altering medicines.  Any employees who appear to become sick during the day should be isolated and sent home immediately.

Should employers impose a quarantine on someone who has traveled to a country designated as a level one, two or three travel health notice by the CDC and, if so, how long should the quarantine last—14 days, longer than 14 days? Any recommendations on how the quarantine is implemented? Or should they only do this if the person is sick?

Depending upon the industry and the factual situation, it may make sense for an employee to ask employees who are not experiencing symptoms but who have recently returned from a level 3 or 4 country to stay home and self-monitor for a period for 14 days, consistent with CDC self-monitoring guidelines and recommendations for social distancing.  The CDC states that social distancing for a period of 14 days is recommended and it means remaining out of workplaces unless the person works in an office space that allows distancing from others.  Again, employer responses should be based on the facts and guidance from the health authorities, not fears, suspicions, and certainly not based on an individual’s national origin, race, ancestry, or ethnicity.

Should employers allow quarantined employees to work while they are ordered off the premises? What considerations are relevant if they’re exempt versus nonexempt?

If an employee is able to work from home, telecommuting could be an ideal way to reasonably accommodate that employee and/or respond to the coronavirus outbreak.  For non-exempt employees, it is of course important for the employer to make sure it has a way to accurately record all hours that the employee works, to prohibit off-the-clock work, and to make sure that employee still takes all required breaks.  If an employer does not already have a telecommuting policy in place, now would be a great time to implement one to make sure everyone shares the same expectations with respect to remote work.  Regarding exempt employees, an employer should keep in mind they are entitled to their full salaries if they work at all during the week, whether at home or not at home.

Can I prohibit my employees from embarking on any non-business-related travel, domestic or international?

On March 11, 2020, President Trump restricted all travel from Europe for the next 30 days.  This will necessarily impact U.S.-based employees from traveling to Europe, as they may not be permitted to return to the U.S. during the travel ban.  However, there are many other areas that remain unaffected by the European travel restriction.  An employer can suggest that employees limit non-business related travel, but cannot direct employees not to travel for personal reasons.  However, businesses can and should implement policies that will encourage employees to report if they have traveled to certain regions identified by the State Department, WHO, and/or CDC as having widespread sustained (ongoing) spread (with or without restrictions on entry to the United States) and areas that have been designated sustained (ongoing) community spread; are living with someone who has recently traveled to those areas; or has had known contact with a person who has tested positive for COVID-19.

Employers should be cautious, however, about prohibiting employees’ personal travel altogether.  At least once, the EEOC has argued that an employer taking action on the possibility of a future health condition could be deemed as “regarding” an employee as disabled if the condition otherwise qualifies as a disability under the law.  On the other hand, decisions in the Seventh, Eighth, and Eleventh Circuits have held that the disability discrimination protections of the ADA do not apply where an employer takes an employment action based on the potential for an employee to become ill and disabled in the future.  While courts have tended to take this view, it is worth noting the EEOC’s position.

Can I ask my employee to present a doctor’s note before returning to work?

It depends. The CDC currently recommends that you do not require a doctor’s note for return to work because our healthcare providers and medical facilities are busy.  Employers can consider temporarily relaxing policies with respect to requiring doctor’s notes if individuals have been out for illness for a certain number of days, but if you do, the policy should be relaxed for all employees.  In Nevada, if you have 50 or more employees, Nevada’s new paid leave law provides that the employee does not have to tell you why they are taking leave.

What if my company does not have a remote or tele-commuting policy, can we implement one now?

Yes, if work can be performed at home, consider asking or allowing employees to do so. Any policy should state the company’s expectations for recording hours, breaks, usage of equipment, right to privacy with respect to equipment, and confidentiality concerns.  For example, hourly employees should record all time.  Under the FLSA, salaried, non-exempt employees are entitled to payment for the entire week if they do any work that week.  If you don’t want to make a telecommuting arrangement permanent, you can issue a memo for temporary telecommuting arrangements based on the COVID-19 pandemic.

If an employee is self-quarantining or required to quarantine, what message can we provide?

If an employee has returned from travel to a high-risk area or has another reason to quarantine, you should not reveal the name of the employee to due confidentiality requirements.  However, if an employee tests positive for COVID-19, employers should inform fellow employees of the possible workplace exposure to COVID-19.

Where can I find additional information?

– The CDC Interim Guidance for Business and Employers
CDC
The World Health Organization
EEOC
OSHA Guidance on Preparing Workplaces for COVID-19
Nevada Department of Health and Human Services
Southern Nevada Health District


About McDonald Carano

McDonald Carano has helped to shape the Nevada business and legal landscape for 70 years. With more than 60 lawyers and government affairs professionals in our offices in Las Vegas and Reno, we are Nevada's law firm for business. We proudly represent Fortune 500 companies, financial and governmental institutions, fast-growth and mid-market companies, entrepreneurs, start-up ventures, non-profit organizations and individuals. Our attorneys deliver cross-discipline, one-stop, commercial law and government affairs counsel. Our dedication to clients, innovative thinking and practical solutions based in sound business and legal judgments are at the heart of our practice. For more information, visit mcdonaldcarano.com, call 775.788.2000 (Reno office), or 702.873.4100 (Las Vegas office) or reach us by email at info@mcdonaldcarano.com.

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