Presented by Brent I. Clark, partner and co-chair of Seyfarth Shaw LLP's Workplace Safety & Environmental group; James L. Curtis, partner in Seyfarth Shaw LLP, labor and employment, with a specialty in all types of occupational safety and health issues; and Ellen McLaughlin, partner in Seyfarth Shaw LLP, labor and employment, with particular emphasis on federal and state court and administrative agency employment litigation.
Not their first rodeo: The labor and employment practice at the global law firm Seyfarth Shaw LLP has extensive experience with such disease outbreaks as the SARS virus in 2001, H1N1 influenza A in 2009, and the Ebola virus, which mostly affected west Africa, but set off concerns in the U.S. between 2014 and 2016.
Why that matters: “There are a lot of similarities from a legal perspective,” Brent I. Clark said of the past outbreaks and the COVID-19 pandemic.
But it is, um, a pandemic. And that makes a difference, James L. Curtis said: “From the safety side of the world, this is an exceedingly fluid situation. We’re dealing with an issue we don’t have answers to — because we don’t usually go through pandemics.”
You asked, what about facemasks? One of the most common questions Seyfarth Shaw is getting these days is about employees who want to wear a facemask at work. First, the Centers for Disease Control (CDC) discourages the practice, except for actual sick people. They don’t really protect a healthy person from infection, and they are needed for health professionals.
James L. Curtis said it: “A lot of employers are getting questions about facemasks. You have to educate the workforce.” And there’s this safety/legal caveat: “You can’t let an employee wear a mask, even a dust mask you might get at Home Depot, without following OSHA regulations.”
One doleful statistic for an aging workforce (like America’s): Fatalities from COVID-19 increase incrementally in decades from 60 to 70 to 80. The average age of COVID-19 cases in Italy who have perished is 81 years old.
FAQs on COVID-19 and FMLA, answered by Ellen McLaughlin:
Do you have the following symptoms? You can get a list of CDC symptoms to ask about.
More permissible actions: Asking if an employee has traveled recently to a level 2 or 3 country. Asking if they’ve had contact with someone with COVID-19 and when.
Can you get heat for taking an employee’s temperature? Ordinarily, yes. But now that it’s been declared a pandemic, it may be permissible.
Taking an employee’s temperature is generally prohibited as a medical test. But now that COVID-19 has been declared a pandemic, there’s another answer: If there’s a declaration it’s wide-spread in the community as defined by local state health authorities or CDC, you can take temperatures. Be aware: If your workplace is unionized, taking temperatures could trigger a “duty to bargain” over the process.
You asked: Can an employer check employees for symptoms on a daily basis? With a pandemic, yes. Educate managers on symptoms, and if you or they see something, you can send them home.
Fear factor. You asked about employees who are just afraid to come to work. Ellen McLaughlin: “The last thing we should be doing is disciplining an employee who isn’t coming to work out of fear.” But on the other hand: It’s your workplace and you can insist an employee show up.
Show me the money. Here’s a couple of handy rules. For the most part, hourly employees are not paid if they are sent home for something like COVID-19. But if an exempt employee is sent home when he or she has done work in a week, they must be paid for the full week. If sent home they cannot do any work — such as sending emails. If an employee is furloughed because of COVID-19, they could be eligible for unemployment compensation.
OSHA and COVID-19. OSHA has offered guidance on dealing with COVID-19 in the workplace that mostly mirrors guidance from the CDC. It recommends companies develop an infection disease preparedness and response plan, but has not issued any specific regulation. You’ll be on the right side of OSHA if you follow the guidance of the CDC and local and state health authorities.
BTW on PPE: There’s no recommendation that workplaces provide any personal protection equipment (PPE) such as masks or gloves.
Your last question: What if an employee with known health problems refuses to work from home? It’s your workplace and you’re entitled to lay down the law on this. Just use the OSHA shield: “I can’t allow you to work and endanger other employees in this workplace.” You frankly have an obligation to protect your workplace.
Want to contact these expert attorneys for follow-up? (But, please, no handshakes!)
Seyfarth Shaw has produced a Coronavirus Information and FAQs document to provide members of America's Newspapers with general information about the 2019 novel coronavirus disease (COVID-19), including how it is transmitted and how you can prevent infection. It does not constitute legal advice on this topic.
This document is not intended to be exhaustive and Seyfarth Shaw encourages you to supplement your knowledge by visiting the Centers for Disease Control website at www.cdc.gov.
You also can subscribe — at no cost — to Seyfarth Shaw's COVID-19 updates at this link.
Download the PDF with Coronavirus Information and FAQs