By now, you are certainly aware of what is occurring in our community and state, the country, and even the world in relation to the outbreak of the coronavirus (COVID-19). In addition to questions you may have about your personal health risks, you may also be concerned about risks to your business. It’s important that you communicate safety policies, and any changes in your daily operations, to your employees. Such changes may encompass the move to working from home for those employees whose positions allow for that, granting sick leave to employees who have or may have been exposed, postponing meetings or using an online meeting room, and reducing or eliminating work-related travel.
If you believe your company will be unable to fulfill contractual obligations due to the effects of the outbreak, please give me a call to discuss. The Force Majeure section of your contract may protect you from liability. Generally, Force Majeure events listed in a commercial contract include natural disasters (fire, storms, floods), governmental or societal actions (war, invasion, civil unrest, labor strikes), infrastructure failures (transportation, energy), acts of God, and other events beyond the control of the affected party. Under certain circumstances, this may apply now and, if so, will grant you temporary relief from having to hold up your end of the deal within the time frame specified in the contract.
Regarding any actions you take related to your workforce, please be aware that an employee’s state and federal law protections still apply:
Americans with Disabilities Act (ADA) protects applicants and employees from disability discrimination. It is relevant to COVID-19 because it prohibits employee disability-related inquiries or medical examinations unless:
- They are job related and consistent with business necessity; or
- The employer has a reasonable belief that the employee poses a direct threat to the health or safety of him or herself or others.
Sending an employee home when displaying mild symptoms of the virus would not violate the ADA’s restrictions because that would be unlikely to be considered a disability-related action. On the other hand, if the illness were serious enough, the action would be permitted under the ADA as the illness would pose a “direct threat” to your other employees. In either case, an employer may send employees home, or allow employees to work from home, if they are displaying symptoms of contagious illness. Be mindful to treat employees equally to avoid any appearance of discrimination and, in all cases, avoid asking any illegal health-related questions.
You have the right to require clearance from a doctor before permitting an employee exposed to the virus to return to work. With our medical professionals facing an increasing workload, however, consider permitting employees to return following an appropriate quarantine period, and requiring that they be symptom-free for 72 hours. The ADA requires that information about the medical condition of an employee be collected and maintained on separate forms and in separate medical files and treated as a confidential medical record. You should refrain from announcing to employees that a coworker is at risk of or actually has a disease. Instead, focus on educating employees on best practices for illness prevention.
Family and Medical Leave Act (FMLA) and Arizona’s Fair Wages and Healthy Families Act may apply at this time. An employee who is experiencing a serious health condition or who requires time to care for a family member may be entitled to take leave for continuing medical treatment or exams. If your company employs 50 or more people, FMLA may apply. In Arizona, all companies are subject to our Earned Paid Sick Time laws.
Some employees may wish to stay home from work out of fear of becoming ill. You may allow the employee to use any PTO or vacation time available, and of course, can allow unpaid leave at your discretion. Exempt employees must be paid if they work for part of a workweek, but do not have to be paid if they are off work for the entire week. Before disciplining an employee for violating any company policies related to extended unauthorized absences, however, consider each situation individually. If you have any questions about this, please contact me.
Employees may be entitled to workers’ compensation benefits if they contract the disease during the course of their employment. For example, employees in the healthcare industry may contract the disease from a patient who is ill. Whether an employee is eligible for other benefits, such as short-term disability benefits, will depend on the terms of the policy and the severity of the employee’s illness.
Occupational Safety and Health Act (OSH Act) requires that an employer provide a safe workplace conditions that are “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” Workers also have the right to receive information and training about workplace hazards, and to exercise their rights as employees without retaliation. There is no specific guidance covering COVID-19. However, some OSHA requirements may apply to preventing occupational exposure to COVID-19, such as in the healthcare industry. Please contact me if you have concerns specific to your business.
I am here, as always, to be a resource to you. Please let me know if I can help.
NOTE: THIS ARTICLE IS FOR GENERAL INFORMATIONAL PURPOSES. IT DOES NOT CONSTITUTE LEGAL ADVICE, NOR DOES IT CREATE AN ATTORNEY-CLIENT RELATIONSHIP. EACH SITUATION IS DIFFERENT. YOU SHOULD CONSULT WITH AN ATTORNEY TO DETERMINE YOUR LEGAL RIGHTS, REMEDIES, AND DUTIES.
By Wendy M. Anderson, Esq.
Law Office of Wendy Anderson, PLLC
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