Employer Responsibilities During a Pandemic

On Behalf of Griswold LaSalle Cobb Dowd & Gin LLP

Photo credit: bbc.com

Several Federal and State agencies have used existing laws or issued guidance to assist employers during the worldwide Covid-19 pandemic. Below are some frequently asked questions related to employer responsibilities during a pandemic;

What preventative measures can be taken?

Employers should encourage employees to practice social distancing and illness prevention practices. Preventative measures should include but are not limited to washing hands, avoid touching one’s face, disinfecting work spaces, and utilize telephonic or internet based communication with clients or employees.[1]

Also, the Department of Health and Human Services (HHS) and the Centers for Disease Control and Prevention (CDC) recommends Employers use the Business Pandemic Influenza Planning Checklist to plan and prepare for any impacts to business due to a pandemic.[2]

What workplace safety guidance should be followed?

The Occupational Safety and Health Administration (OSHA) recently published “Guidance on Preparing Workplaces for COVID-19.” Within the Guidance, OSHA classified workplaces into four risk zones depending on the industry type, need for contact, and likelihood of exposure. Using the four risk zones, very high, high, medium, and lower risk, employers will be able determine their applicable workplace zone and the appropriate practices for their respective zone.

What should an employer do if an employee tests positive for Covid-19 or shows symptoms?

The CDC states employees that show symptoms or actually get influenza-like symptoms should leave the workplace. Employers are permitted to send home employees with Covid-19 or symptoms associated with it.[3] Currently known symptoms include chills, cough, fever, shortness of breath or shortness of breath. Both employee and employer should consult with a medical professional before returning back to work.

Can an employer take their employee’s temperatures?

Yes, because a pandemic has been declared the CDC has allowed employers to measure employee’s body temperatures. Normally, measuring an employee’s temperature is a medical examination and would not be permissible under the American’s with Disabilities Act. However, temperatures may be taken by employers since pandemic or influenza symptoms have become more severe. Employers should be aware that in some cases employees may be Covid-19 positive but do not have a fever.

Any information about an employee’s body temperature medical information must be kept confidential with several exceptions.[4] For example, supervisors and managers may be given confidential information in order to allow for reasonable accommodations and cleaning of contaminated areas.

Can an employee use California Paid Sick Leave due to Covid-19 illness?

Yes, the employer must provide paid sick leave if an employee has paid sick leave available.[5] Paid leave can be used for diagnosis, care, or treatment of an existing health condition. Also, paid sick leave can be used for preventative care for the employee or the employee’s family member. Paid leave preventative care may include self-quarantine where the employee has been exposed to Covid-19.

What should an employer do if an employee’s family member tests positive for Covid-19?

Employee’s requesting leave could be protected under the Family and Medical Leave Act (FMLA). Employee’s requesting leave for family will be protected under the Families First Coronavirus Response Act (FFCRA).

Under FMLA employees are eligible to take leave they work for a covered employer and 1) have worked for 12 months, 2) have at least 1,250 hours of service over the last 12 months, and 3) work at a location where 50 employees are employed by the employer within 75 miles.[6] FMLA protects eligible employees who are incapacitated by a serious health condition like Covid-19 Also, FLMA protects eligible employees who are needed to care for covered family members who are incapacitated by a serious health condition like Covid-19.

Under FFCRA employers must provide employees two weeks, 80 hours, of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because of quarantine.[7] Also, employers must provide employees two weeks, 80 hours, of paid sick leave at two thirds of the employee’s regular rate of pay where the employee is caring for an individual who is unable to work because of quarantine.

What information does the employer need to gather in order to receive reimbursement under FFCRA?

The employee should document the positive test results and provide this information to the employer.[8] The employer should keep the following employee information for record keeping purposes; employee’s name, date which leave was requested, reason for leave, and a statement why the employee is unable to work because of Covid-19. The employer should keep the following employee’s child information for record keeping purposes; child’s name, name of school or child care provider who is closed, and a statement that no other person is available to care for the child.

[1] https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fprepare%2Fprevention.html

[2] /wp-content/uploads/sites/1603419/2020/06/businesschecklist.pdf

[3] https://www.eeoc.gov/facts/pandemic_flu.html

[4] https://www.eeoc.gov/policy/docs/ada_manual.html

[5] https://www.dir.ca.gov/dlse/paid_sick_leave.htm

[6] https://www.dol.gov/agencies/whd/fmla/pandemic

[7] https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave

[8] https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

This web site is designed for general information only. The information presented in this blog should not be construed to be formal legal advice or the formation of a lawyer/client relationship. You should not rely on this information as a substitute for actual legal advice, or a guarantee of any outcome in your specific case.

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