COVID-19 Information Center

Commentary: Working in a coronavirus world
March 18, 2020 (published)
Raphael Moore, J.D., LL.M.
VIN General Counsel

First published in the Davis Enterprise

How employers and employees handle the coronavirus and its implications will be highly dependent on the nature of your business. As you consider confronting and navigating widespread uncertainty, you should be aware of some of the basic legal ramifications. The following includes both Federal and California specific guidelines, so make sure to check your own jurisdictional variations.

Can I tell my employee not to travel on vacation?

As a basic premise, you cannot prohibit legal activity outside of work. This means you cannot tell your employee not to go on vacation – whether it is for a family trip to Italy, or spring break in New Orleans. You can of course educate them on the risks, including not being allowed back into the U.S. when returning from a foreign trip.

How do I handle an employee returning from a trip?

You can establish guidelines for employees returning from travel — whether personal or business related. These rules can range from mandatory quarantines, to self-monitoring, and should be based on travel from or to CDC declared hazard zones, coupled with whether employees are symptomatic.

You can also ask employees what countries they visited to determine exposure risks – such questions would not constitute the more regulated “disability-related” inquiries. Employees returning from zones that are not restricted by the CDC should not be targeted. Instead, employers should follow the same guidelines as they would for anyone else: if an employee appears sick at work, of course you can require them to go home.

Can an employee refuse to come to work because of general concerns over infection?

Generally, no. Federal law states that an employee can refuse to work only if they believe they are in “imminent danger”, which is defined pretty narrowly (e.g., exposure at work to toxic substances that would result in death or serious physical harm). At present, the general virus outbreak does not appear to qualify. Of course, consider the level of employee anxiety and evaluate on a case-by-case basis.

What if an employee wants to wear a mask in the workplace?

It is mostly up to the employer whether or not to allow an employee to wear a mask. Per the CDC, only those who are infected should wear a mask – but then they shouldn’t be at work anyway.

The local schools or day care closed — do employees have a right to stay home?

Consider your leave policies and whether they can be used for such eventuality (e.g., sick leave, or PTO). If a worksite has 25 or more employees, Labor Code 230.8 may also provide up to 40 hours of leave per year for “school-related emergencies” which include closure by civil authorities. This would constitute unpaid leave, unless the employer policies provide otherwise.

Note that the employer can require that paid time off be used before unpaid leave is used — although they can’t require sick leave to be used.

An employee appears sick. What do I do?

You should do what you would normally do with any other employee who appears sick – send them home to get better. Sending an employee home when they exhibit contagious illness symptoms does not violate laws restricting disability-related actions. But that doesn’t mean you can ask broad medical questions of the employee. You also cannot demand to check the employee’s temperature.

The Americans with Disability Act (ADA) restricts the type of inquiries you can make into an employee’s medical condition unless you can show that the questions are job related and have a business necessity, or you believe the employee poses a “direct threat” to the health or safety of others that cannot otherwise be reasonably eliminated.

Do I need to pay an employee who I send home mid-day because of illness?

Generally, if a non-exempt employee reports to a scheduled shift and is sent home before the shift is over, they must be paid “reporting time pay.” Note that reporting time pay does not apply if business cannot be run because of a recommendation by civil authorities to cease operations (e.g., a specifically worded “state of emergency” declaration).

Exempt employees who perform any work during a week must be paid their full weekly salary.

What if an employee is quarantined — do I need to pay them?

Where quarantine is recommended by local government authorities, paid sick leave must be provided if available to compensate for quarantine and other preventative care. But the employee cannot be forced to use such leave. If sick leave has been exhausted, or if other available leave — like PTO — is available, an employee can choose the leave they want as long as the leave policy allows for that.

If an employee is required to be quarantined, consider whether any work can be done remotely, or if time off work is the only solution. Telecommuting– where it makes sense from a work standpoint — has been held to be an effective infection control strategy and can be used as an appropriate accommodation where warranted.

While coronavirus is generally temporary, and therefore it normally wouldn’t trigger a disability discussion under the ADA, during the influenza epidemic years ago it was held that employees who are in fact disabled and would be placed at high risk of complications because of the virus outbreak could request telecommuting as a reasonable accommodation.

If no work can be done at all, the earlier stated rules regarding exempt and non-exempt employee pay will be applicable. In any event, the time you require an employee to be away should be reasonable, so basing your policies on CDC guidelines and declarations will provide you some level of protection.

Does Paid Family Leave (PFL). Family Medical Leave Act (FMLA), or the California Family Rights Act (CFRA) apply in any way?

If an employee can’t work because they are taking care of a quarantined or ill family member, they can file a PFL claim with the state. This can provide up to 6 weeks of benefit payment where there is a total or partial loss of wages (usually 60-70% of wages).

Depending on the employer size, FMLA and CFRA may also be applicable — while it does not provide wage replacement, it protects the employees job while they take care of themselves or a family member with a “serious health condition”. Note however that this does not give an employee the right to stay home simply to avoid getting sick.

How about Disability Insurance (DI)?

Disability insurance — a state provided safety net — can provide partial wage replacement (also about 60-70% of wage) as a short term benefit to employees who are certified by a medical professional to have been exposed to the virus and who are unable to work because of such exposure.

When does Unemployment Insurance (UI) kick in?

If an employee’s hours are reduced or an employer has to close operations, UI can likewise provide partial wage replacement. This is true even if the reduction or shut down is temporary, and folks are expected to return to work.

Can I require older employees to stay home — for their protection?

No. Employers need to be careful not to discriminate against their employees. Whether due to age, medical condition, national origin, or any protected class — you cannot institute policies that target one group versus another.

It is critical to educate your work force, including supervisors, as to impermissible conduct (e.g., they can’t ask an employee as to the origin of family visitors who are staying with them at their home).

What are privacy concerns I need to think about?

If there is exposure in the workplace, notify all potentially impacted employees (e.g., all those who worked closely with the individual during the prior 14 days), as well as relevant clients/vendors, while maintaining the identity of the infected employee private (unless you have permission otherwise).

If any employee is working from home — whether as a preventative step, due to their own illness, or to care for a family member — do not publicize the reason why the employee is out of the office. Remember that medical information is protected — keep all relevant documents separate from the employee’s personnel file.

How do we get through this?

The bottom line is not to panic. Employers and employees need each other now, and will need each other in the future. Legalities side, steps should be taken to reduce spread of any contagion. To the extent remote work is possible, that should be implemented, encouraged, and even incentivized.

Employers should consider furloughs and pay reductions before permanent layoffs, and provide assistance with unemployment and disability claims. If your physical workspace allows for it, consider changes in layout to provide for more separation.

Leave policies should be reviewed and flexibility added to help ride out this period of uncertainty  — consider relaxing vacation vesting requirements, providing additional vacation and sick leave, providing unpaid leave, and not requiring “doctor’s note” to justify absences. Resist the urge to go with impulsive reactions and instead take things day by day.

If you need specific advice as to your own circumstances, research the law or speak with a trusted attorney.