Guidance for Employers in Light of COVID-19
With the coronavirus (COVID-19) now declared a pandemic by the World Health Organization and confirmed cases in the United States, including Iowa, employers must develop policies and strategies to keep their workplaces safe. Below we provide guidance and resources for employers as they react to this evolving issue.
General Policy Guidance:General Policy Guidance:
1. Encourage sick employees to stay home. The Centers for Disease Control (CDC) recommends that employees with symptoms of respiratory illness stay home until they are fever-free for 24 hours without the use of fever-reducing medicines. See the CDC's Guidance for Employers here: CDC GUIDANCE - SICK EMPLOYEESSee also the general business guidance provided by Iowa Dept. of Public Health: IOWA DEPTARTMENT OF HEALTH GUIDANCE
2. If an employee is confirmed to have COVID-19, these employees should remain home in line with physician's recommendations until the risk of secondary transmission is low. The CDC recommends that employers notify coworkers of their exposure while maintaining confidentiality as required by the ADA. Employees who have been exposed to COVID-19 should be directed to CDC guidance on how to conduct a risk assessment of their potential exposure. See: CDC EXPOSURE ASSESSMENT . At this time, neither the CDC nor IDPH recommend that employers require a doctor's note to validate an employee's illness or return to work as healthcare providers may not be in a position to provide such documentation timely.
3. Employees who are well but living with a family member with a confirmed case of COVID-19 should notify Human Resources and be directed to CDC guidance on how to conduct a risk assessment of their potential exposure. Employers can consider requesting that these employees remain home until the risk of secondary transmission is low.
4. Perform routine cleaning of your workplace and provide reminders to all employees about respiratory etiquette and hand hygiene. See the CDC guidance here: CDC RESPIRATORY ETIQUETTE AND HAND HYGIENE. OSHA also has guidance on how to protect employees from potential exposures: OSHA COVID-19 GUIDANCE
5. Consider temporarily restricting/cancelling travel as well as large work-related meetings or gatherings. Employers should monitor the CDC's travel guidance here: CDC TRAVEL GUIDANCE. Many other countries have restricted and limited inbound travel and may limit the employee's ability both to enter the country and leave if the employee were to fall ill while abroad. For employees returning from high-risk areas, consider implementing a 14 day at home self-quarantine for those employees prior to their return to work.
6. Review/develop emergency response plans. Both the CDC and the Iowa Dept. of Public Health recommend that employers review their emergency response plans, or develop plans if such plans do not exist. See the following resources for guidance: IOWA.GOV BUSINESS GUIDANCE and CDC BUSINESS RESPONSE GUIDANCE These plans should be flexible given that the severity of the illness or how many people will become ill is unknown. Planning recommendations include (i) identify possible work-related exposure and health risks to employees; (ii) prepare for increased numbers of employee absences due to illness and possible school closures; (iii) identify essential business functions and the possibility of cross-training other workers on those functions; (iv) explore whether flexible work sites such as teleworking (and ensure there is infrastructure in place for this) and staggered work shifts are possible; (v) identify critical suppliers and be prepared to change business practices if needed to maintain business operations; and (vi) review company policies to ensure they are consistent with the guidance and resources discussed above and below.
7. Maintain the confidentiality of employees' health information. The FMLA and ADA require that employers maintain the confidentiality of employees' health information. In addition, if the employer learns of the employee's health information through the health plan, HIPAA's privacy regulations may also apply.
Wage and Hour Guidance:
1. Non-exempt employees do not have to be paid for any time they are not working. For non-exempt employees who are ill or who are caring for an ill member of their immediate family, leave under the Family Medical Leave Act (FMLA) may be an option. The US DOL recently issued guidance on common FMLA issues and COVID-19: FMLA & PANDEMIC Unpaid leave may also be a reasonable accommodation under the ADA. The EEOC recently issued guidance on EEO (e.g. ADA) issues and COVID-19: EEOC & CORONAVIRUS
For employees who are not ill and/or who do not qualify for FMLA, employers can consider offering the use of accrued paid time off or giving the employee an "advance" on PTO to use during the time they are not working.
2. Exempt employees must generally receive their full salaries in any week they perform any work, subject to very limited exceptions. The US DOL recently issued guidance on common wage and hour issues related to COVID-19. That can be accessed here: WAGE & HOUR PANDEMIC
3. Look beyond the immediate legal requirements of leave associated with COVID-19 in determining whether or not to compensate employees forced to stay home. While an employer may not be legally required to pay an employee during a time that he/she cannot or should not work, not doing so could encourage employees to return to work before it is safe or not to report possible exposure to COVID-19. This could be harmful to other staff, customers, and potentially expose the company to legal liability from third parties due to increased infections. This is an ever-evolving situation and there will likely be other business areas impacted by COVID-19. Additional questions can be directed to any member of the Firm's Labor and Employment Practice Group here.