by Lorena E. Ahumada

While our region has not seen an outbreak of the coronavirus disease of 2019 (COVID-19) like what we are seeing in Washington State and abroad, employers in the Delaware Valley should consider reviewing their policies and practices to prepare in the event of a virus outbreak in our area.

Last month, the Centers for Disease Control and Prevention (CDC) issued an Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19), which it continues to update as more information is gleaned about the virus and its spread. To help prevent workplace exposures to COVID-19, the CDC recommends that employees:

  • Stay home if they have respiratory symptoms (coughing, sneezing, shortness of breath) and/or a temperature above 100.4 F;
  • Leave work if they develop COVID-19 symptoms while at the workplace and to self-quarantine;
  • Shield coughs and sneezes with a tissue, elbow, or shoulder (not bare hands); and
  • Wash hands often with soap and water for at least 20 seconds or use an alcohol-based hand sanitizer.

The CDC further recommends that employers:

  • Encourage sick employees to stay home;
  • Separate and send employees home who appear sick;
  • Routinely clean frequently touched surfaces in the workplace; and
  • Monitor and curtail business travel outside of the U.S. and in U.S. regions facing known outbreaks.

While employees should be encouraged to self-report COVID-19 symptoms, to leave work as needed and to stay home when sick; often times the fear of being penalized and being able to afford taking sick leave discourages these actions.  Given the potential spread of this virus, employers should consider amending their sick leave policies to give their employees confidence that they will not be penalized or suffer financial loss by calling out sick or leaving work early.  These amendments may include:

  • Providing paid sick leave.  While Philadelphia has already implemented paid sick leave for employees in the City, businesses with employees outside of Philadelphia should consider implementing paid sick leave for all employees in the event of an outbreak.  This may be especially useful for part-time employees who often times do not have a paid leave benefit.
  • Amending or creating work-from-home policies.  If feasible, such policies can reduce the spread of this communicable disease, and also help allay employee concerns about contracting COVID-19 at work or during their commute in to work.
  • Implementing flexible workplace policies. While many employees require employees who remain out due to illness to provide a doctor’s note to confirm and excuse the absence, the CDC is recommending that employers not require such documentation from those suffering from acute respiratory illness in the wake of COVID-19 because medical providers are likely to be inundated with requests if the virus spreads.

FMLA and Other Considerations

Generally, illnesses like a cold or flu are not deemed “serious health conditions” for purposes of the FMLA. However, such illnesses may be a serious health condition for FMLA purposes, if the employee (or his immediate family member) is incapacitated for more than three consecutive calendar days and receives continuing treatment by a health care provider, as defined in the regulations. An employee who contracts COVID-19 or who cares for family member with COVID-19, therefore, may be eligible for FMLA leave provided that he/she is an otherwise covered employee employed by a covered employer. The CDC recommendation that individuals not seek immediate medical treatment, however, may impact an employee’s rights under the FMLA.

Along with questions about COVID-19 and FMLA, employers may have questions about the following:

  • Return-to-work rules for employees who test positive for the virus
  • Curtailing business meetings, employer-sponsored events and business travel
  • Requiring employees to report personal travel to impacted areas
  • Pay and wage concerns for employees who are instructed to leave work due to virus symptoms
  • How to handle an employee who unreasonably refuses to come to work or leave work
  • How to manage a malingering employee who uses this public health matter to avoid work
  • Effect of government-mandated quarantine of your employees
  • How to respond to employee questions about financial impact to 401K plans

Employers are currently grappling with how to respond to COVID-19. Kleinbard attorneys are here to provide additional guidance and to draft communicable disease policies and procedures that protect your workforce and business.