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20 May 2020
With rapid developments in local, state and federal guidance and law, the appropriate approach for each employer in relation to COVID-19 will vary depending on the nature of their work, the industries served and their location and size, among other considerations. This article outlines the practical considerations linked to working from home and privacy that employers need to know.(1)
Can employers require documentation from healthcare providers for employees who are sick with acute respiratory illness? If so, should they?
The answer to this question will differ based on jurisdiction (particularly in jurisdictions that maintain state or local paid sick leave laws) and circumstance.
Federal law generally permits employers to require reasonable documentation from healthcare providers to support the existence of an illness requiring time out of the business or to certify an employee's fitness to return to the workplace.
The Americans with Disabilities Act (ADA) allows employers to ask employees to provide documentation from their healthcare provider to evaluate the extent of an impairment where an employee has requested an accommodation or the employer has an objective basis to believe that the employee cannot perform essential job functions because of an impairment.
If an employee is requesting paid leave under the Families First Coronavirus Response Act (FFCRA), the employer must require the employee to provide certain information (eg, the employee's name, date for which the employee is requesting leave, the reason for leave and a statement that the employee is unable to work or telework because of that reason). The employee's FFCRA reason for leave will dictate the type of information that the employer must collect from the employee and maintain to support the employer's claim for tax reimbursement. For example, if the employee requests leave to self-quarantine based on the advice of a healthcare provider, the employee should also provide the name of the healthcare provider who gave the advice.
In some jurisdictions, state or local law may further address whether an employer may require medical documentation from an employee who requires a short-term absence for their own illness or the illness of a family member, and whether the employer may request diagnosis information with such documentation. In some cases, documentation should not be required, particularly where the employee is using paid sick leave.
If an employee must stay home due to COVID-19 concerns and has no PTO or paid sick leave, must the employer compensate them for their time away from work?
First, if an employee who is at home feels well enough to work and is capable of teleworking, the employer can allow them to do so and should compensate them as if they are performing work in the workplace.
If the employee cannot work or telework, the employer may be legally obligated to provide that employee with paid leave under the FFCRA. Employees of covered employers who have COVID-19 or are suspected of having COVID-19 and cannot work or telework are generally eligible to receive two weeks (up to 80 hours) of paid sick leave at their regular rate of pay (capped at $511 per day). Employers cannot require employees to exhaust their paid leave options (eg, accrued paid time off (PTO) or state or local paid sick leave) before using FFCRA leave.
Employers that are not already familiar with the FFCRA should thoroughly review it and all covered employers must adjust their policies to comply, including communicating the specifics of the new policies to their employees and posting the notice. Employers should consult with legal counsel regarding any questions about the FFCRA's provisions and their application.
Some states and localities have also implemented paid sick leave obligations for larger employers that are not covered by the FFCRA (eg, California, San Francisco, San Jose and Los Angeles have each implemented COVID-19-related paid sick leave requirements for larger employers).
Although employers that fall outside the FFCRA's and other state and local paid leave laws' ambit may have no legal obligation at this time to provide compensation to such employees during their time away from work, these employers might consider implementing temporary policies to incentivise employees to remain home while ill (eg, one-time front-loading of additional PTO or paid sick leave time). Employers should consult with legal counsel regarding whether such additional time would be subject to laws regulating holiday and paid sick leave in their jurisdiction, such as carry over, caps and pay out on termination, and to develop a written policy accordingly.
State and local jurisdictions have enacted additional leave obligations on employers. Some examples include San Francisco, New York City and Los Angeles, among others. Employers should consult with counsel regarding their specific jurisdictions of operation to confirm whether new laws have been enacted to impose additional leave obligations and, if a covered employer under the FFCRA, how such leave interacts with federal obligations.
If employees are working remotely, must their employer provide them with additional equipment or can they use their own (eg, a personal computer, mobile phone and printer)?
Employers may generally require their employees to use their own personal devices for work-related matters. Depending on the jurisdiction, employers may be required to reimburse employees for costs associated with the use of their personal devices for work purposes.
Employers that permit employees to use their personal devices to conduct company business should consider whether this may affect the company's ability to protect the security of company data. For instance, employers may consider implementing security measures on those personal devices to protect company data and confidentiality.
Employers should also ensure that they have written policies in place that define and communicate an employee's expectation of privacy on their personal devices (or lack thereof), if used for work purposes.
If non-exempt employees are given remote access to perform work (eg, access to work emails on a mobile phone), employers should set out the expectation that work will be performed only during working hours and when the employee is 'on the clock'.
Employers also should keep in mind that their ADA responsibilities to individuals with disabilities continue during a pandemic. The Equal Employment Opportunity Commission (EEOC) has stated that if an employee with a disability needs the same reasonable accommodation at a telework site that the employee had at the workplace (eg, a screen reader on an office computer for an employee with impaired vision), the employer should provide that accommodation, unless it would result in undue hardship. If a requested accommodation would cause undue hardship, the EEOC advises that the employer and employee should work together to identify an alternative reasonable accommodation. Although the EEOC has acknowledged that the extraordinary circumstances caused by the COVID-19 pandemic may result in delays in addressing accommodation requests and providing accommodations where warranted, employers should continue to address such requests as soon as possible. Employers should make every effort to use interim solutions to allow employees to keep working as much as possible.
If an employee must obtain a fitness-for-duty certification before returning to work, must their employer pay for their out-of-pocket expenses?
Depending on the circumstances, testing and a fitness-for-duty certification may be necessary, particularly for employees who:
In its 17 March 2020 guidance, the EEOC provided that employers may require return-to-work certification relating to the COVID-19 pandemic. However, because doctors and other healthcare professionals are extremely busy during and immediately after a pandemic outbreak, alternative approaches may be necessary (eg, reliance on local clinics to provide a form, a stamp or an email to certify that an individual may return to work).
If an employer requires an employee to obtain a medical certification or test, state law may require the employer to reimburse the employee for these costs. Employers may also have to compensate non-exempt employees for their time spent obtaining the certification. For certain workplace exposures (eg, bloodborne pathogen exposure), the employer would be required to pay for the cost of testing under Occupational Safety and Health Administration (OSHA) regulations. Employers should contact counsel to discuss their particular situation and jurisdiction.
In scenarios where the employer sends an employee for laboratory testing under state and federal legal authorities, the laboratory conducting the test may reveal the results directly to the employer in accordance with the Health Insurance Portability and Accountability Act (HIPAA).
Do employers have a duty to report potential COVID-19 cases? Is there any record-keeping requirement?
Absent additional state legislation, existing state reporting requirements for infectious diseases apply to healthcare providers only and not to employers.
State health agencies and media outlets may seek voluntary information from larger employers about the number of employees infected. With the exception of employer-sponsored self-insured health benefit plans, the HIPAA regulations that protect individually identifiable health information do not apply to employers. However, employers should still exercise diligence in sharing information about specific employee cases, both internally and externally. Affected employers that wish to disclose information may consider providing aggregate counts in response to requests from state agencies or media outlets (eg, "14 of our employees have been infected with COVID-19").
Employers also may be subject to COVID-19 record-keeping requirements under OSHA. Employers that are already covered by OSHA record-keeping requirements (which is based on the North American Industry Classification System code applicable to each employer's industry) must record certain work-related injuries and illnesses on their OSHA 300 log, whose information must be submitted to OSHA on an annual basis and posted for employees to review in the beginning of each calendar year (covering the prior year's incidents). COVID-19 may constitute a recordable illness if an employee is infected as a result of performing work-related duties. However, the recording requirement is triggered only if:
On 10 April 2020 OSHA issued guidance stating that employers (except for healthcare, first-responder and correctional industries) in geographic areas experiencing community transmission need not determine whether an employee's COVID-19 infection was work related unless:
OSHA has acknowledged the inherent difficulty in determining whether a particular case of COVID-19 was truly a work-related illness. As such, where an employee has tested positive for COVID-19, the employer must evaluate whether the illness was in fact work related and involves one of the recording criteria delineated under the regulations. While the latter is likely to be met in a confirmed case (as the employee will likely have been instructed to stay away from work and may potentially receive treatment beyond first aid), determining whether the illness was work related can involve a more nuanced, individualised analysis. Employers should contact counsel for assistance.
What can an employer do if an employee has no symptoms of illness and its workplace has been symptom free, but the employee has refused to come to work because of concerns relating to COVID-19 and being in large groups generally?
Employers should listen to employee concerns and, if they are genuine, explore alternative working arrangements with them. To the extent possible, employers should encourage flexible or remote work options, particularly for exempt employees. Where remote working is not an option, employees may be given the option to use their PTO or take unpaid non-medical leave from the workplace.
Employers should keep in mind that accommodations made for one employee may set a precedent regarding how other employees should be managed in similar situations. Employers should also keep in mind that if employees come together to protest or refuse to come to work – or even if only one employee comes forward on behalf of their colleagues – their concerted efforts could be protected under the National Labour Relations Act. Employers should consult with counsel in this event.
Can employers prohibit employees from travelling to heavily affected areas?
No – as a general rule, employers cannot control an employee's lawful, off-duty conduct, including elective travel. However, given the current circumstances, it would be reasonable to introduce a policy requiring employees to disclose what their travel plans are once travel becomes more regular.
If an employee has booked travel to a known affected area and still intends to travel, employers might consider reminding the employee of the risks involved and the employer's obligation to protect the health and safety of its employees. Employers may want to specifically remind the employee of the possibility of a mandatory quarantine period on return from travel. Employers should ask the employee to keep the appropriate company contact (eg, human resources) informed of any health concerns. Employers should also ensure that employees understand the policy in relation to pay if they must go into quarantine on their return from travel and whether remote work is available for employees.
Does an employer's response to COVID-19 implicate any privacy laws or regulations?
Maybe – privacy rights are complicated matters for employers and a privacy lawyer should be consulted regarding those issues.
For further information on this topic please contact Lindsay Ditlow or Carole Spink at McDermott Will & Emery by telephone (+1 312 372 2000) or email (firstname.lastname@example.org or email@example.com). The McDermott Will & Emery website can be accessed at www.mwe.com.
(1) For further information please see here.
Michelle Strowhiro, partner, assisted in the preparation of this article.
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