*Updated March 24, 2020, to reflect changes with the passing of the Families First Coronavirus Act and the Wisconsin Safer at Home order.
Developments occur rapidly with COVID-19. The information in our blogs is current as of the publication date or noted update.*
As the novel coronavirus (COVID-19) continues to spread in the U.S. and outcomes remain uncertain, many organizations are concerned about the potential business implications and the actions they can or should take to reduce the risk of spreading the illness.
The current tactic recommended by the Centers for Disease Control and Prevention (CDC), expert epidemiologists and local healthcare providers is to practice social distancing. It includes avoiding crowds, standing several feet from other people, not shaking hands and staying home if you feel sick.
Social distancing is why you are seeing canceled or postponed community activities and school closures. In Wisconsin, Gov. Tony Evers has announced a Safer at Home order that takes effect March 25 limiting residents to essential travel only. Businesses that are non-essential are required to temporarily close to customers, while those considered essential will remain operational. This order will remain in effect until April 24.
Business owners are asking how they can keep employees, clients and communities safe while continuing business operations. Consensus is to require employees who are sick to stay home, but what about remote work or staggering office hours? There is no one-size-fits-all answer and decisions need to be made in response to new developments in the evolving situation.
Below you will find a collection of answers to employee-specific questions. We have published a full compilation of the most frequently asked questions from the business community.
If you would like to discuss how these recommendations and mandates affect your unique business, please don’t hesitate to contact the team at McClone. We have put our own business continuity plan in effect to ensure we remain available to guide our clients and community.
Can we ask employees to stay home or leave work if they exhibit symptoms of COVID-19 without violating the Americans with Disabilities Act?
Yes, you are allowed to ask employees to seek medical attention and get tested for COVID-19 if you have reason to believe an employee exhibits any of the warning signs.
Sending employees home with symptoms of contagious illnesses would not violate the ADA restrictions.
Are there any Equal Employment Opportunity concerns related to COVID-19?
Just like in any other circumstances, employers cannot select employees for different treatment based on race, color, religion, sex, national origin, age, disability or any other prohibited factor.
Is COVID-19 testing covered by our group health plan?
Yes. COVID-19 testing is a provision included in the Families First Coronavirus Response Act. The legislation requires private health plans (including fully insured, self-funded and grandfathered plans) to provide coverage for COVID-19 diagnostic testing and related services to employees and their covered dependents with no cost sharing (e.g., deductible, copayment or coinsurance).
Related services include in-person and telehealth provider consultations and facility costs related to COVID-19 diagnosis and treatment. In addition, health plans cannot require prior authorization for COVID-19 testing or services.
This regulation will be in effect April 2, 2020, until the end of the national emergency period.
What should we do if any employee has tested positive for COVID-19?
You should send home all employees who worked closely with the infected employee for a 14-day period of time to ensure the infection does not spread.
When sending the employees home, don’t identify by name the infected employee or you could risk a violation of confidentiality laws. You should then deep clean all areas affected. If you share a building or office space, you should also inform building management so they can take whatever precautions are necessary.
What if one of our employees is suspected, but not confirmed, to have COVID-19?
All suspected cases should be treated as if the employee was confirmed to have contracted COVID-19.
What if one of our employees reports contact with someone who has tested positive for COVID-19?
Treat the situation as if the exposed employee has a confirmed case of COVID-19, sending home any potentially infected employees with whom that person may have come in contact.
If we have an employee with a confirmed case of COVID-19, must we report the information to the CDC?
There is no obligation for employers to report suspected or confirmed cases of COVID-19. The healthcare provider is the one who must report all confirmed positive cases of COVID-19.
My employee alleges he contracted the virus at work. Will this result in a workers’ compensation claim?
It depends. If the employee is a healthcare worker or first responder, the answer is likely yes. For other categories of employment, a compensable workers’ compensation claim is possible but further analysis would be necessary.
What are the benefits an employee will receive if the workers’ compensation claim is determined to be compensable?
The good news is that in most situations the virus does not pose any significant long-term healthcare problems. You would be exposed to medical costs associated with the treatment, and compensation costs associated with any recovery time including quarantines required by employer, local, state or federal government agencies.
Can we charge time missed to vacation and leave balances?
The Fair Labor Standards Act (FLSA) does not regulate the accumulation and use of vacation or other leave. Under the Emergency Family and Medical Leave (FMLA) Expansion Act, however, employers cannot require the employee to substitute paid time off (e.g., accrued PTO or vacation days) for unpaid time.
Can an employee refuse to come to work because of fear of infection?
Employees are only allowed to refuse to work if they believe they are in imminent danger. The Occupational Safety and Health Administration (OSHA) describes imminent danger as “threat of death or serious physical harm.”
Most work conditions in the U.S. don’t meet the elements required for an employee to refuse to work. This is general guidance and each employer must determine whether it is permissible for employees to refuse work. An example to consider would be requiring a medical professional to work in a setting without proper protective equipment.
Can employees refuse to travel as part of their job requirements?
If an employee objects to travel, you will want to proceed with caution and consult an attorney before taking any steps. Under the federal OSH Act, an employee can refuse to work when a realistic threat is present.
Can we prohibit employees from traveling to a non-restricted area on their personal time?
You cannot prohibit otherwise legal activity, such as travel abroad by an employee. You could risk legal exposure, reduce employee morale, and create negative publicity if you try to terminate an employee who refuses to cancel personal travel at your request.
Should we institute a temporary remote work policy?
The CDC currently recommends social distancing as a way to reduce the spread of the virus, but there is no current federal mandate for remote work. The decision should be evaluated on a company basis depending on local laws. Wisconsin has issued a Safer at Home order effective March 25 – April 24.
Organizations providing “essential care or services” will remain open and workers, including healthcare workers, family caregivers, grocery store employees, etc., are allowed to continue to travel to and from work. For a list of essential businesses or to inquire if your business is considered essential, visit the Wisconsin Economic Development Corporation website. Non-essential businesses that have their workers or contractors performing remote work exclusively at home are allowed to continue to operate during the Safer at Home order
If we have a unionized workforce, can we make changes to union employees’ work schedules or duties in response to COVID-19?
The first authority for determining your rights and obligations is your own collective bargaining agreement. Many agreements will have certain provisions to allow for employer flexibility in situations like this.
Do HIPAA privacy rules apply during the COVID-19 pandemic? What if we are contacted by officials asking emergency medical or personal health information about an employee?
Yes, HIPAA applies. Make sure you continue to protect the privacy of any infected employees. Information should only be disclosed to authorized personnel after you have properly identified them. Medical information should be treated as confidential and afforded the same protection as any HIPAA protected information.
Can employees remain on the health plan even if they are not actively working? (e.g., due to a business shut down or caring for children when schools close)
It depends, continuation of benefits is usually outlined in the Summary Plan Description (SPD) or combination of the employer application and the insurance certificate. Some insurance carriers have announced some flexible provisions in light of the pandemic, but those provisions vary, and they don’t last forever.
Your risk advisor or account manager will be able to help you understand your options, but generally there are three ways employees can stay on a group health plan:
No. 1 Reduced Hours and PTO/Sick Days
No. 2 Emergency Family and Medical Leave Act (FMLA) Expansion Act
No. 3 Consolidated Omnibus Budget Reconciliation Act (COBRA)
Does traditional federal FMLA apply to the COVID-19 pandemic?
It could, FMLA entitles eligible employees to take unpaid, job-protected leave for specified family and medical reasons which may include contagious illnesses if complications arise that create a “serious health condition” as defined by the FMLA.
Additional Guidance
We continue to monitor the evolving situation and we will update our guidance as more information becomes available. In the meantime, we encourage you to reach out to the knowledgeable team at McClone with your questions and concerns. We are here to help you navigate this difficult and challenging time.