As most employers know, on March 10, 2020, the World Health Organization (WHO) declared coronavirus disease 19 (COVID-19) a pandemic. While COVID-19 will impact employers in multiple ways, healthcare providers, including local government ambulance, EMT, firefighters, and similar workers, are those most affected by having to be at work during a pandemic. Accordingly, the factors healthcare employers must consider when dealing with absences due to virus symptoms, quarantines, and family care responsibilities are different from considerations relevant to employers in other industries. The following federal agency guidance may be useful for healthcare employers.
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Centers for Disease Control (CDC) Guidance: The CDC continues to put out guidance specifically for providers and health workers. The CDC healthcare workers page is available at: https://www.cdc.gov/coronavirus/2019-ncov/hcp/index.html. The CDC also has a webpage resource called Clinician Outreach and Communication Activity (COCA), which provides guidance on issues such as strategies for optimizing the use of respirators, screening updates, personal protective equipment, and other issues unique to the healthcare setting. Here is an example, https://emergency.cdc.gov/coca/calls/2020/callinfo_030520.asp. (click on the additional resources tab for links to guidance on various issues).
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Equal Employment Opportunity Commission (EEOC) Guidance: Generally, once a pandemic is declared, and depending on the severity of risk, the EEOC guidance permits employers to take more action to reduce the risk of direct threat in the workplace. EEOC guidance is available at https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm, and https://www.eeoc.gov/facts/pandemic_flu.html. However, the advice for healthcare workers may not be the same as the advice for other types of employers. For example, while an employer generally should not take customer or employee temperatures, this may be different for healthcare employers. Additionally, although the guidance states that employers are not in the business of quarantining people, this is different for healthcare employers. Further, the EEOC’s advice that regular employers need to think long and hard about terminating employees who refuse to come in for fear of exposure to the virus may not apply to healthcare employers since they have different decisions to make given nature of job and staffing concerns, especially during a pandemic.
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OSHA Guidance: OSHA has provided specific guidance regarding COVID-19 for healthcare employers, https://www.osha.gov/SLTC/covid-19/controlprevention.html#health. OSHA also has a detailed guidance on pandemic preparedness and response that addresses issued related to healthcare employers, https://www.osha.gov/Publications/3328-05-2007-English.html#OccupationalMedicineServices. Generally, the primary differences resulting from the WHO’s designation of the outbreak as a pandemic are: employers may insist that people with observable symptoms have a fitness for duty clearance before returning to work; and employers now may send employees with COVID-19 symptoms home from work. However, it is important to be aware that many states are being inundated with at-risk population issues, and the ability to get a doctor’s note or to be tested is almost non-existent. Healthcare employers with access to larger numbers of tests must determine whether to routinely use those tests for workers with no or minor symptoms or whether the tests should be saved for patients. OSHA also requires different reporting by healthcare employers regarding exposure.
As schools close and, in some situations, elderly people return home because their families do not want them to be exposed in a nursing home or hospital setting, employers need to decide whether they will pay employees who stay home either because they are symptomatic or because they must care for non-symptomatic but at-risk relatives. This determination may be governed, at least in part, by state or local law, so employers should consult with counsel or check state and local laws before making decisions related to sick pay. Generally, where paid leave is not required by state or local law, whether to pay employees who stay home due to COVID-19 is a business decision. Most employers with whom we have spoken in the past week are paying employees for a certain period of time, typically three days, if those employees identify as having symptoms and their work cannot be performed from home. However, employers generally do not pay those who are staying home because of school closures. Employers are taking a wait-and-see approach to determine whether employees abuse this leave. On the other hand, healthcare employers have the ability to screen workers more readily so they are likely to be able to determine if an employee is infected. That too depends on whether the employer has enough kits to screen employees.
In planning your pandemic response you may want to use the series of employee questions provided on the EEOC’s pandemic page to help determine ahead of time whether you will experience staffing issues. The employee does not need to answer each question individually, but would answer yes or no to the series as a whole, which does not distinguish disability-related inquiries from the other reasons for inability to work during a widespread outbreak.
Finally, many unionized employers have negotiated management rights regarding safety issues in their collective bargaining agreements and should review those as well as ensuring compliance with state and local laws and federal agency guidelines.
Employers’ Bottom Line: The bottom line, especially for healthcare employers, is that the situation is very fluid. The FordHarrison Coronavirus Task Force continues to post content on our website and will continue to provide guidance as the situation develops. If you have additional questions or need more specific assistance, feel free to contact any member of our Coronavirus Task Force or the author of this Alert, Tracey Jaensch, partner in our Tampa office at tjaensch@fordharrison.com. Of course, you can always contact the FordHarrison attorney with whom you usually work.