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Preparing Your Organization For A COVID-19 Coronavirus Outbreak
Presented by: Zac Kester & Lynn Fitzgibbons MD
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Download the slides from the presentation (PDF)
Legal/HR FAQ by Zac Kester
Health FAQ by Lynn Fitzgibbons MD
Legal/HR FAQ
Disclaimer: The information you obtain at this site is not, nor is it intended to be, legal or medical advice. You should consult an attorney for advice regarding your individual situation.
Provided By Zac Kester
Executive Director and Managing Attorney, Charitable Allies.
(Indianapolis, IN)
Updated: 3-18-20
1.) If an employee with symptoms is unable to get a test due to general unavailability, how should employers handle this?
State law may vary but you may generally have the employee go through the CDC risk assessment(s) for exposure or illness in travel or the community with their medical provider (or the medical provider of the employer’s choosing at the employer’s expense). The note from the provider is sufficient evidence of the general risk profile of that employee in the workplace.
2.) What obligation is there to notify other employees of potential exposure? Are we obligated to let employees know a person is on self-quarantine if there are no confirmed COVID-19 results available?
The employer has an obligation to keep employees safe so if there is risk of illness and exposure, the employer should tell potentially affected employees that they have come into contact with a person who was exposed to COVID-19, and those employees should take the risk assessment and potentially enter self-quarantine.The specific identity of the individual should be kept confidential.
3.) What if an employees states they don’t feel comfortable coming to work. Legally what can the employer do?
The employer can “force the issue” through an OSHA, ADA and FMLA-compliant policy, the main elements of which are answered in response to #1, above. Employees do not have the right to refuse to come to work unless they reasonably believe they are in imminent danger. (See OSHA for Worker’s Right To Refuse Dangerous Work)
4.) If an employee tests positive for COVID-19, should we require a doctor’s note to return to work? What if they report that they have symptoms?
The CDC standard for a return to work following a Covid-19 infection are: (1) At least 3 days (72 hours) have passed since recovery, which is defined as (a) resolution of fever without the use of fever-reducing medications and (b) improvement in respiratory symptoms (e.g., cough, shortness of breath); and, (2) at least 7 days have passed since symptoms first appeared. If so, medical offices may be overwhelmed and this could be difficult to obtain. How should we proceed? Have the employee attest they meet these requirements.
5.) Can you ask your employees to submit to having their temperature taken prior to allowing them in the workplace?
No, employers are not healthcare professionals. See the answers to #1 and #4 above as well as the accompanying webinar which explains the process to have an employee go to a medical clinic for definitive clearance.
6.) Can employees ask for COVID-19 test results prior to coming back into the office? Tests are generally unavailable, so this would put the employee in an impossible situation. But see the answer(s) to #4 and #5, above.
7.) Can we require employees to use their PTO/sick/vacation during this period? Generally, yes. You will want to carefully follow your policies and state law in how you implement this and your short-term disability policy; however, implementation in a manner that is favorable to employees should be consistently applied to avoid potential issues.
8.) Are there laws that protect employees that would require the employer to pay them rather than use benefit time?
Things are changing very fast; Congress is currently considering extended-time paid-leave. In addition, the federal WARN Act (100 employees or more) and the sixteen states with mini-WARN laws (usually 50 employees or more), have obligations to give 60 or 90 days advance notice to employees before layoffs. However, strategies such as reduced hours can help mitigate.
9.) Can an employer ask an employee for a copy of test results showing they have tested positive or have not tested positive?
Yes, generally. A medical examination, including testing (and forced disclosure of the results) is permitted if an employer can show the exam is to assess whether the employee may pose a “direct threat” to the workplace.
10.) If an employee has a sick child at home and we ask them to stay home to err on the side of caution and they don’t have paid time off left are we obligated to pay them?
This is very fact-dependent and more information would need to be gathered, including: Do you have a short-term disability policy? How many employees do you have? What state are you in? Is the child ill with Covid-19, or some other illness? Is the employee (or the child) under a quarantine order? Ultimately, however, you may still assess the employee’s risk to the workplace. See also the answers to #1 and #9 above.
11.) How does FMLA and/or ADA work with someone on mandatory quarantine or isolation?
This is complicated. Under FMLA, an employee (or family member) has a covered serious health condition if inpatient care and/or monitoring is required. Additionally, if an employee is in quarantine for Covid-19, they are likely “regarded as” having a disability under the ADA that rises to the level warranting protection for which employers have to offer reasonable accommodations. Is an employer legally required to pay an employee who decided to self isolate because of a presumptive positive test result? If FMLA, ADA or WARN require it, or if the employer’s employee manual (i.e., PTO/sick/short-term disability policies) require such then yes.
12.) Can an employer require employees, customers, or visitors to sign waivers relieving the employer of any liability for illness or complications related to COVID-19 that may be contracted directly through exposure at the employer’s workplace?
This would likely be ineffective, especially if you also didn’t take adequate precautionary measures.
13.) Can an employer reduce exempt salaried employees and hours to reduce payroll burden on the company. How can it be done?
The answer depends on whether WARN applies (see answer to #8 above) and on the applicability of the Fair Labor Standards Act. Reducing an exempt employee’s salary in times where they work fewer hours terminates the exempt status of that employee. The short answer is that it cannot be easily done.
14.) Do employers have to pay to those who cannot work from home?
Unless WARN or a union collective bargaining agreement applies, generally no.
15.) Are employers required to pay an hourly employee if you have asked them to self-quarantine?
Generally no, except that some employees will be able to use employer-provided leaves as determined by the specific policies of that employer.
Further questions?
Please contact Zac Kester directly at zkester@charitableallies.org or visit his web site.
Health FAQ
Disclaimer: The information you obtain at this site is not, nor is it intended to be, legal or medical advice. You should consult an attorney for advice regarding your individual situation.
Provided By Lynn Fitzgibbons MD,
Infectious Disease
Cottage Hospital
(Santa Barbara, CA)
Updated: 3-18-20
What is the mode of transmission for corona virus?
Coronavirus as a family is generally thought to be transmitted primarily by droplet and direct contact with an infected person or surface.
Is Corona Virus transmitted through the air?
The vast majority of infections are thought to be transmitted by droplet (within 3-6 feet of an infected individual) or direct contact with an infected person or contaminated surface. During certain medical procedures or activities when respiratory droplets become aerosolized, it is likely that small infectious particles do become airborne. The significance of this is not yet perfectly clear.
If you test negative one day, could you likely need to be tested again at a later date?
Hypotheticals are difficult to answer well, but I could certainly envision a scenario where we would have a negative result but consider re-testing for a variety of reasons.
How long can the virus live on your clothing? I’m not sure anyone knows the true answer, but we can probably extrapolate from the New England Journal of Medicine article and infectivity on plastic persisting for up to 3 days.
What about other surfaces?
We also know from data published that the virus remains infectious (remember a virus is not technically alive, but rather has a certain period of time when it remains infectious) for variable time periods on variable surfaces. It appears to remain infectious on copper for several hours, on cardboard for 24 hours and on stainless steel and plastic for up to 3 days.
How are our medical professionals be protected if they test positive? If that workforce is hit then what will be doing?
Great point and great question. We are working hard to protect our healthcare workers as best we can. We have learned lessons from Asia and Europe regarding this aspect of the crisis and taking whatever measures possible to decrease the risk of this. Nevertheless, this remains a substantial concern.
What are your thoughts on receiving delivery food?
Remember that we are trying to minimize contact between people, therefore delivery food is far preferred than everyone scattering to a variety of individual restaurants. For employees to bring their own food and reduce daily exposure to delivery personnel may be even better.
Hand sanitizer? Do they really make a difference?
SARS-CoV2 is an enveloped virus and is thought to be effectively inactivated by many hand-sanitizers.
If a person has a doctor’s appointment, should they use mask going to the hospital?
The general recommendation would be that patients who have symptoms of an infectious viral infection should use a face mask when in public, including in a clinic or hospital setting. It is not generally recommended for general use in the absence of symptoms.
There are also many rumors indicating that Advil, Motrin and other over the counter medicines are responsible for the people that died. Is it true, that taking any of those pills can make the virus deadly stronger and kill you?
There have been some reports this week regarding experience in France whereby patients who used ibuprofen have had worse outcomes. I’m yet to see robust evidence to support this, but agree this is an important question that needs to be answered.