How to Handle Employee Issues Regarding COVID-19

For the most part, I think employers know the basics

1. To the extent possible, allow your employees to work remotely
2. If that is not possible, and you have an employee that has been diagnosed or exposed to someone with COVID-19, get a list of all people the employee came in contact with, and send them home for a 14 day quarantine.

But its the nuanced situations that seem to be the most difficult. Here are some answers to questions that I have been receiving:

First, remain transparent and open with your employees. Help them understand the symptoms of COVID-19, and what circumstances to avoid.

Second, remain flexible. Allow employees to use sick time, vacation or other PTO time, or even unearned time if necessary.

Ok, but this doesnt answer the questions I have.

Q: What if your employee says they feel sick, or they look sick. Can I send them home? Can I ask for a doctor's note or medical clearance? Yes, you can send them home, ask them to get tested, or get in touch with their doctor, and ask them to please communicate with you if they test positive. You can also tell them to stay home if they continue to exhibit symptoms or until a doctor confirms a negative test.

Q. Can my employee refuse to come to work? Generally, employees are not permitted to refuse to work. Employees are only entitled to refuse to work if they believe they are in imminent danger. Section 13(a) of the Occupational Safety and Health Act defines “imminent danger” to include “any conditions or practices in any place of employment which are such that a danger exists which can reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.” OSHA discusses imminent danger as where there is “threat of death or serious physical harm,” or “a reasonable expectation that toxic substances or other health hazards are present, and exposure to them will shorten life or cause substantial reduction in physical or mental efficiency.”

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, for example, before OSHA could investigate the problem. 

If your employee refuses to work and the employee is non-exempt, the employee will not be paid for those hours. I know that many government leaders are championing keeping workers employed, and attempting to not require, but an employee's fear must be legitimate and imminent.  

Q: My employee is traveling on vacation. Can I ask my employee about where they are traveling or restrict that travel? If your employee does not tell you they will be traveling on their pre-planned vacation, you may ask them if they are traveling to an area that the CDC has identified as a Level 3 risk. An employer may inquire if an employee has traveled to any locations identified by the CDC as a Level 3 risk area. Although this information is changing rapidly, Level 3 risk areas as of March 18 are: China; Iran; South Korea; Europe (Schengen Area): Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, Switzerland, Monaco, San Marino, Vatican City; United Kingdom and Ireland: England, Scotland, Wales, Northern Ireland, Republic of Ireland. The CDC is regularly updating its website, so employers should check periodically for updates at https://www.cdc.gov/coronavirus/2019-ncov/travelers/index.html.

Employers may also ask if the employee is traveling to an area where state or local public health officials recommend that visitors self-quarantine after visiting.

There have been no prohibitions to travel within the United States, although employees should be mindful of close contact, large crowds and risk of exposure.

Q: Can I ask that employee that has traveled to self quarantine upon return? As of today, you cannot require an employee who has traveled to self-quarantine subject to the following exceptions:

1. If the employee has traveled to a Level 3 restricted area. 
2. State or Local Prohibitions. Employers can require self-quarantine if state or local public health officials recommend that visitors self-quarantine after visiting. If so, an employer can insist an employee self-quarantine upon return.  (Virginia is considering calling the National Guard in to assist, NJ has issued a curfew)
3. Symptoms or Exposure. If the employee is experiencing symptoms, were exposed or tested positive they could be required to self-quarantine. Employees should be mindful of close contact, large crowds and risk of exposure.

So while you cannot require the employee quarantines as of today, you must advise the employee that there is no guarantee that they will not be required to quarantine upon their return. Information may change, so employees should be forewarned that they may be required to self-quarantine and that you will evaluate again at the time of expected return.

Q: Can employees use their leave time? Yes, employees can use sick time, and PTO time. Be mindful of city ordinances of paid sick leave, like Philadelphia and Pittsburgh sick leave laws, and new changes to the FMLA -- the Family First Coronavirus Response Act, which is currently pending.

Christina M. Reger is the Founding Partner of the Law Offices of Christina Reger, LLC. She is licensed in Pennsylvania and New Jersey. Christina works with businesses and corporations to prevent litigation from employees and applicants by ensuring that the employer has the proper policies and procedures in place, providing training and educating staff, and generally reviewing the operation to ensure compliance with the morass of employment laws. Christina offers a unique fee structure that provides predictability and accessibility to the legal services her clients need.

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