EMPLOYERS AND CORONAVIRUS
Provided By Dover Dixon Horne PLLC Attorneys at Law
Five Steps an employer can take right now to prevent the spread of covid-19
- Communicate to all employees the need for washing hands and avoiding touching eyes, nose, mouth
- Take care to regularly disinfect common areas like break rooms, kitchens, and bathrooms
- Place hand sanitizers with at least 60% alcohol in reception areas and conference rooms
- Check in with employees and take time to notice whether anyone may be displaying signs of illness
- Encourage people to go home if they are sick
Coronavirus – an Overview
Coronavirus Disease 2019 (“COVID-19” or “Coronavirus”) is a respiratory illness that can spread from person to person. The virus that causes COVID-19 is a new coronavirus first identified during an investigation into an outbreak in Wuhan, China. 
Common signs of COVID-19 infection include respiratory symptoms, fever, cough, shortness of breath, and breathing difficulties. In more severe cases, infection can cause pneumonia, severe acute respiratory syndrome, kidney failure, and even death.
There is currently no vaccine to prevent COVID-19. COVID-19 is thought to spread mainly from person-to-person between people in close contact with one another (within about 6 feet). COVID-19 spreads through respiratory droplets that are released into the air when an infected person coughs or sneezes. The CDC recommends standard precautions to avoid the spread of respiratory viruses such as washing hands with soap and water for at least 20 seconds, avoiding close contact with people who are sick, staying at home when you are sick, and disinfecting frequently touched objects and surfaces. Additionally, the CDC always recommends everyday preventive actions to help prevent the spread of respiratory diseases, including:
- Avoid close contact with people who are sick.
- Avoid touching your eyes, nose, and mouth.
- Stay home when you are sick.
- Cover your cough or sneeze with a tissue, then throw the tissue in the trash.
- Clean and disinfect frequently touched objects and surfaces using a regular household cleaning spray or wipe.
- Follow CDC’s recommendations for using a face mask.
- CDC does not recommend that people who are well wear a face mask to protect themselves from respiratory diseases, including COVID-19.
- Face masks should be used by people who show symptoms of COVID-19 to help prevent the spread of the disease to others. The use of face masks is also crucial for health workers and people who are taking care of someone in close settings (at home or in a health care facility).
- Wash your hands often with soap and water for at least 20 seconds, especially after going to the bathroom; before eating; and after blowing your nose, coughing, or sneezing.
- If soap and water are not readily available, use an alcohol-based hand sanitizer with at least 60% alcohol. Always wash hands with soap and water if hands are visibly dirty.
Currently, there is no specific antiviral treatment recommended for COVID-19. People with COVID-19 should receive supportive care to help relieve symptoms. For severe cases, treatment should include care to support vital organ functions. People who think they may have been exposed to COVID-19 should contact their healthcare provider immediately.
WHAT EMPLOYERS CAN DO TO PREPARE
The CDC has provided interim guidance for businesses and employers to plan and respond to COVID-19. The CDC will update the interim guidance as needed so employers should periodically check the CDC website for new information.
Sick employees should be actively encouraged to stay home. Employees who have symptoms of acute respiratory illness are recommended to stay home and not come to work until they are free of fever (100.4° F or greater using an oral thermometer), signs of a fever, and any other symptoms for at least 24 hours, without the use of fever-reducing or other symptom-altering medicines. Employees should notify their supervisor and stay home if they are sick.
Employers may ask employees about the countries to which they have recently traveled and if they may have been exposed to COVID-19. Employers can ask if employees have had close contact with others who have recently traveled to at-risk countries. However, employers can only administer medical tests for employees when there is an established job-related necessity. Any testing without an established job-related necessity may violate the Americans with Disabilities Act and rights to privacy.
FAMILY MEDICAL LEAVE ACT CONCERNS
When an employer concludes that an employee may pose a health threat to other employees, the employer can request that the employee stay home for the COVID-19 incubation period, which is currently thought to be fourteen (14) days. Employees who become sick or must care for sick family may be eligible for protected leave under the federal Family Medical Leave Act (“FMLA”) and corresponding state laws. For an employee to invoke their 12 weeks of unpaid FMLA leave, the employee must have a serious health condition and otherwise satisfy FMLA eligibility criteria (works for an employer with 50 or more employees, employed for at least 12 months, at least 1,250 hours of service during the 12-month period immediately preceding leave). While an employee with COVID-19 or caring for a qualifying family member with COVID-19 may qualify for FMLA leave, employees who refuse to come to work out of fear of catching COVID-19 do not typically qualify for FMLA leave.
The CDC recommends that employees who appear to have acute respiratory illness symptoms (e.g. cough, shortness of breath) upon arrival to work or become sick during the day should be separated from other employees and be sent home immediately. Sick employees should cover their noses and mouths with a tissue when coughing or sneezing (or an elbow or shoulder if no tissue is available).
Employers should make sure sick leave policies are flexible and consistent with public health guidance and that employees are aware of these policies. Employers should not require a healthcare provider’s note for employees who are sick with acute respiratory illness to validate their illness or to return to work, as healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely way. Employers should maintain flexible policies that permit employees to stay home to care for a sick family member. Employers should be aware that more employees may need to stay at home to care for sick children or other sick family members than is usual.
Employees who contract COVID-19 in the course of employment may be entitled to workers’ compensation benefits. If the employees’ work required them to be exposed to persons infected with COVID-19, then employers may be responsible for covering the costs of reasonable and necessary medical care, temporary total disability benefits, and permanent disability (if any). If an employee incidentally contracts COVID-19 from a co-worker, there likely will be no workers’ compensation liability.
AMERICANS WITH DISABILITIES ACT
Employers should note that the Americans with Disabilities Act (“ADA”) prohibits discrimination against perceived disabilities or association with those with actual or perceived disabilities. To avoid implicating the ADA, it is best to continue to apply leave policies and other workplace polices in a uniform, equitable, and neutral fashion. Pursuant to Section 1630.2(r) of the ADA, an employer may require that an employee undergo a medical evaluation if the employee’s condition could pose a “direct threat” to the workforce due to the employee’s medical condition. A “direct threat” is defined as “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” When an employer is determining whether an individual is a direct threat to the workforce, the employer must make a context-specific inquiry and look to “(1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.”
The Equal Employment Opportunity Commission has issued guidance to distribute to the workforce in the event of global health emergency. The guidance states, “if the CDC or state or local public health authorities determine that the illness is like seasonal influenza or the 2009 spring/summer H1N1 influenza, it would not pose a direct threat or justify disability-related inquiries and medical examinations. By contrast, if the CDC or state or local health authorities determine that pandemic influenza is significantly more severe, it could pose a direct threat. The assessment by the CDC or public health authorities would provide the objective evidence needed for a disability-related inquiry or medical examination.”
WHAT CAN AN EMPLOYER DO TO BE PROACTIVE?
To combat misplaced employee fears about a COVID-19 outbreak, employers may consider taking proactive measures. Employers may consider performing routine cleaning of all frequently touched surfaces with disinfect cleaning agents. An employer could place posters that encourage staying home when sick, cough and sneeze etiquette, and hand washing hygiene. Employers can regularly update employees on the relative risk of an outbreak in the employer’s area. Educating employees on what symptoms to look for and providing links to the World Health Organization and CDC websites may be helpful.
Employers should review their leave policies to ensure sick leave, paid time off, and other policies are flexible and consistent with federal, state, and local laws. Now is a good time to send out updates and reminders to employees about the importance of remaining home when sick, the workplace resources available to employees, and points of contact in the event an exposure occurs. It may also be advisable to permit employees to stay home to care for sick family members.
Employers should review their remote work or telecommuting policies in preparation for the possibility of workforce reductions due to illness. To minimize the impact an outbreak may have, employers may want to ensure seamless transitions to remote working in the event the outbreak leads to voluntary or mandatory periods of quarantine.
Employers should be prepared to be flexible with the application of their leave policies in order to accommodate any changes in CDC recommendations and public health guidelines. Employers are encouraged to work with legal counsel when navigating the complex issues presented by a potential pandemic. Please feel free to contact Carl F. “Trey” Cooper, III at Dover Dixon Horne PLLC with any questions, concerns or comments regarding how your company should prepare for COVID-19.
Dover Dixon Horne, PLLC
425 West Capitol Ave., Suite 3700
Little Rock, AR 72201