Guidance & FAQs for Employers Regarding the COVID-19 Coronavirus

Editor’s Note: SBCA Legal Counsel Kent Pagel drafted the guidance and FAQs below to assist employers in dealing with the COVID-19 coronavirus. Watch Kent's webinars: COVID-19: SBCA Legal Counsel Overview and SBCA Legal Counsel Gives COVID-19 Follow-Up.

The guidance that follows addresses the many employment-related issues facing truss manufacturers with regard to their employees with respect to the COVID-19 coronavirus. This article will be updated as necessary as developments change.

Background.

COVID-19 is not a flu but a respiratory disease caused by a virus. COVID-19 is one of seven known coronaviruses. On March 11, 2020, the World Health Organization declared the current coronavirus outbreak as a pandemic. This designation occurs when a new virus emerges for which there is little or no immunity in the human population, begins to cause serious illness, and then spreads easily person-to-person worldwide. There have only been four influenza pandemics since 1900.

It will be important for truss manufacturers to monitor the Centers for Disease Control’s (CDC’s) pandemic severity assessment, as the severity level greatly affects the actions that an employer may take during a pandemic. 

What are the symptoms of COVID-19?

Symptoms typically include fever, cough and shortness of breath. Illness can range from mild to severe, and in some cases, can be fatal. Symptoms may appear in as few as two days or as long as 14 days after exposure.

How does COVID-19 spread?

Infected people spread the virus to other people. The virus spreads between people in close contact (within about 6 feet), through respiratory droplets (i.e., through a cough or sneeze), or by touching a surface or object that has the virus on it and then by touching your own mouth, nose or eyes. 

Most of the “experts” agree that the virus is spread mainly by people who are already showing symptoms, such as fever, cough or difficulty breathing. But it appears that a Massachusetts coronavirus cluster with at least 82 cases was started by people who were not yet showing symptoms, and more than half a dozen studies have shown that people without symptoms are causing substantial amounts of infection.  

What steps can an employer take to reduce employee exposure to the virus that causes COVID-19?

Develop an Infectious Disease Preparedness and Response Plan. Think developing a new policy for your existing employee handbook.

According to OSHA’s recently published Guidance on Preparing Workplaces for COVID-19, truss manufacturer employees fall into what OSHA would characterize as Low Exposure Risk and contrasted to Very High Exposure Risk, High Exposure Risk or Medium Exposure.

What if an employee appears sick?

If any employee either has a a fever or difficulty in breathing, keep in mind these symptoms are not always associated with influenza and the likelihood of an employee having the COVID-19 coronavirus is extremely low. Retrain your supervisors on the importance of not overreacting to not create a panic among the workforce.

Can we ask an employee to stay home or leave work if they are showing symptoms of COVID-19?

Yes. Employees who exhibit symptoms of influenza-like illness at work during a pandemic should not be at the workplace. Tell your employees who show symptoms to not show up for work and instead get medical attention and get tested for COVID-19. 

During a pandemic, the Equal Employment Opportunity Commission (EEOC) has stated that advising workers to go home is not disability-related if the symptoms present are akin to the seasonal influenza or the H1N1 virus. Therefore, an employer may require workers to go home if they exhibit symptoms of the COVID-19 coronavirus or the flu.

Can I take an employee’s temperature at work to determine whether they might be infected?

Given the classification of the COVID-19 coronavirus as being a pandemic, employers may take an employee’s temperature at work. While taking an employee’s temperature is considered to be a “medical examination” under the Americans with Disabilities Act (ADA), the EEOC’s position during a pandemic is that employers should rely on the latest CDC and state or local public health assessments to determine whether the pandemic rises to the level of a “direct threat.”

If an employee refuses, they can be sent home. Consider, however, a policy of taking an employee’s temperature as voluntary but reserving the right to send the employee home if they refuse. 

What should we do if an employee informs us that they have COVID-19 or that they have tested positive for COVID-19?

An employee with COVID-19 should not be working at the company’s workplace. Also, the CDC and other organizations are advising a company to send home all employees who worked closely with the infected employee for a 14-day period of time to ensure the infection does not spread among other employees.

Ask the infected employee to identify all individuals who worked in close proximity (six feet) with them in the previous 14 days to ensure you have a full list of those who should be sent home. When sending the employees home, do not identify by name the infected employee or you could risk a violation of confidentiality laws.

You should consider asking a cleaning company to undertake a deep cleaning of your affected workspaces.

What if an employee informs us they have come into contact with someone with COVID-19?

Take the same precautions as noted above. Treat the situation as if the suspected case is a confirmed case for purposes of sending home potentially infected employees. Communicate with your affected workers to let them know that the employee is asymptomatic for the virus but you are acting out of an abundance of caution.

If we learn or suspect that one of our employees has COVID-19, do we have a responsibility to report this information to the CDC?

There is no obligation to report a suspected or confirmed case of COVID-19 to the CDC. The healthcare provider that receives the confirmation of a positive test result is a mandatory reporter.

What steps can we take now to minimize risk of transmission?

The best way to prevent infection is to avoid exposure. The messages you should be giving to your employees are:

• First and foremost, tell your employees to stay home if they are sick.
• Wash your hands often with soap and water for at least 20 seconds. If soap and water are not available, use an alcohol-based hand sanitizer.
• Avoid touching your eyes, nose, and mouth with unwashed hands.
• Avoid close contact with others, especially those who are sick.
• Refrain from shaking hands with others.
• Clean and disinfect frequently touched objects and surfaces.

As an employer, you should be doing the following:

• Provide employees with facilities to wash their hands, including tepid water and soap, and accelerate cleaning/custodial schedules.
• Evaluate your remote work capacities and policies.
• Consider staggering employee starting and departing times, along with lunch and break periods, to minimize overcrowding in common areas such as break rooms.
• Create a communication tree within your organization. Have a single point of contact for employees for all concerns that arise relating to health and safety.

Can an employee refuse to come to work because of fear of infection?

Employees are only entitled to refuse to work if they believe they are in imminent danger. This means the threat must be immediate or imminent, which means that an employee must believe that death or serious physical harm could occur within a short time. Most work conditions in the United States do not meet the elements required for an employee to refuse to work.

Can employers in the United States refuse an employee’s request to wear a medical mask or respirator?

Yes, under most circumstances.

Can an employee refuse to work without a mask?

Given the consensus that face masks are only necessary when treating someone who is infected with the COVID-19 coronavirus or influenza, masks are not necessary to protect the health of most employees. Therefore, most employers do not have to provide, or allow employees to wear, a surgical mask or respirator to protect against the spread of the COVID-19 coronavirus.

Can we prohibit an employee from traveling to a non-restricted area on their personal time?

You generally cannot prohibit otherwise legal activity, such as travel abroad by an employee.

What should I do if an employee has recently traveled to an affected area or otherwise may have been exposed to the COVID-19 coronavirus?

If the CDC or state or local public health officials recommend that people who visit specified locations remain at home after traveling, an employer may ask an employee what locations they have traveled to, even if the travel was for personal reasons. During a pandemic, an employer does not have to wait until an employee develops symptoms to ask questions about exposure. 

Can employees refuse to travel as part of their job duties?

Under OSHA law, employees can only refuse to work when a realistic threat is present.

If schools close or daycare facilities are closed and employees cannot work as they need the time to care for their children, what should I do?

Under these circumstances such employees would more than likely be entitled to utilize existing paid sick or personal leave policies. An employee can take FMLA leave for medical purposes only. Therefore, leave taken by an employee for the purpose of avoiding exposure to the coronavirus would not an be protected under FMLA.

Furthermore, no federal law requires an employer to provide non-government employees who take off from work to care for healthy children, and employers are not required by federal law to provide leave to employees caring for dependents who have been dismissed from school or child care. 

Should we institute a temporary remote work policy in light of the COVID-19 coronavirus outbreak?

For some employers for some employee job descriptions, a remote work policy may work and make sense. For manufacturing companies, this of course is not feasible.

Whether or not to institute a remote work policy for some employees may be dependent on whether your company currently utilizes a remote work policy, as you may not want to introduce a new system in place if you have had not yet had time to test and develop your remote work capabilities.

How should we treat employee medical information?

We recommend you treat all medical information as confidential and afford it the same protections as those granted by HIPAA in connection with your group health plan.

Must we keep paying employees who are not working?

The Fair Labor Standards Act (“FLSA”) Questions and Answers provide guidance on the following topics:

• Pay to Non-Exempt Employees During Business Closures. Under the FLSA, employers are obligated to pay non-exempt employees only for the hours worked, not hours the employee otherwise would have worked if the employer’s business had not closed. 

If telecommuting or working from home is provided as a reasonable accommodation, the employer must pay non-exempt workers the minimum wage, and at least time and one half the regular rate of pay for overtime hours, for hours telecommuting or working from home.

• Pay to Exempt, Salaried Employees. Under the FLSA, employers are generally obligated to pay exempt, salaried employees their full salary in any week in which they perform any work, with limited exceptions.

Does contraction of COVID-19 coronavirus implicate the ADA?

Generally, no, because in most cases the COVID-19 coronavirus is a transitory condition.

Does sending an employee home who exhibit potential symptoms of COVID-19 violate the ADA?

Sending an employee home who displays symptoms of contagious illnesses would not violate the ADA’s restrictions on disability-related actions.

My employee alleges that they contracted the coronavirus while at work. Will this result in a compensable workers’ compensation claim?

It depends. A compensable workers’ compensation claim is possible, but the analysis would be very fact-specific.