Pandemic preparation is nothing new for employers. A pandemic was declared in 2009 due to the H1N1 flu, in 2014 for the Zika virus outbreak, and then for the Ebola outbreak in 2014-2016.
However, the recent closure of schools, churches, professional and college sports, along with multiple activities and establishments, due to COVID-19 is unprecedented. The stated goal for these closures is to contain the spread of COVID-19.
But what does this mean for employers? Unfortunately, there is not a one-size-fits-all answer. The employer’s response is generally dependent on the goods or services it provides and the makeup of its workforce. However, the key is frequent communication with your employees.
Communication does not necessarily mean implementing new policies and standards. Instead, employers should simply provide frequent updates to their employees. Important points to discuss with your employees include:
- Inform your employees that the company is actively evaluating all business-related risks.
- If no company personnel have been infected with the COVID-19 virus, then share that with your workforce to alleviate any possible unstated fears or concerns.
- Explain how COVID-19 spreads (CDC has issued a variety of communications that you can use).
- Share the CDC’s recommendation to minimize risk of spreading the virus.
- Discuss the steps that the company has implemented to disinfect and clean the premises.
- Request that employees stay home when they are sick.
- When necessary, inform the workforce that the employer will make sure that individuals who have been potentially exposed remain away from the workplace for at least 14 days.
In addition, the employer may want to address travel issues for both business and personal use.
The employer may want to set up a place in which all of these communications can later be viewed, for example on the company’s intranet site or bulletin board. Most importantly, the company needs to ensure that employees have a designated person or persons to whom they can direct their questions or inquiries.
To protect the workforce and avoid the spread of COVID-19, some employers have banned visitor entry. While this may not be practical for all employers, companies can request certain information be disclosed by potential visitors before entry is permitted. Inquiries could include:
- Have you experienced any cold or flu symptoms in the past 14 days (including fever, cough, sore throat, respiratory illness, difficulty breathing)?
- Have you visited any of the CDC – Alert Level 2 or 3 countries or regions within the last 14 days?
- Have you been in close contact with someone diagnosed with COVID-19 in the past 14 days?
- Have you been in close contact with anyone who has traveled within the last 14 days to one of the countries listed?
One of the most frequently asked questions is whether the employer has the right to send an employee home. The answer is yes. OSHA provides that employers are responsible for the health and safety of their employees.
This then raises the question of whether you have to pay the employee for this time off. This answer is dependent upon a variety of factors, including:
- whether there is a collective bargaining agreement in place;
- the employee’s classification of exempt or non-exempt;
- the company’s paid leave policies (sick leave, paid time off, or vacation time);
- the required 40 hours of paid leave under Michigan’s Paid Medical Leave Act;
- the employee’s previous use of any paid time off; and
- the possible application for short-term disability (depending on the reason and length of the illness).
In some circumstances, the employee’s absence may qualify as a serious medical condition under the Family Medical Leave. For example, there may be a period of incapacity lasting more than three consecutive full calendar days, where the employee sought treatment by a health care provider and was provided a continuing regimen of treatment (e.g. prescription medication). Although time off under the FMLA is generally unpaid, unless used concurrently with paid leave or STD/LTD, covered employers should provide this option to eligible employees.
Last week, Gov. Gretchen Whitmer ordered the closure of all schools until April 6. This triggered the application of a provision under Michigan’s Paid Medical Leave, which offers paid leave under a variety of circumstances, including for an eligible employee’s need to care for a child whose school or place of care has been closed by order of a public official due to a public health emergency.
Therefore, if not previously used, an eligible employee working for a covered employer may be entitled to 40 hours of paid leave. Also, at the time of this publication, the federal government is considering the passage of the Families First Coronavirus Response Act (H.R. 6201), which would provide paid sick leave and up to three months of paid leave for certain coronavirus-related circumstances. The bill will be taken up by the Senate this week, and if approved, will move to the president for his approval before becoming effective.
For the latest information on COVID-19, visit C-Span.
Rebecca S. Davies is a labor and employment attorney with Butzel Long in the firm’s Bloomfield Hills office. She has represented both the public and private sectors for nearly 25 years including companies with two to 20,000 employees.