Most everyone has seen the classic 1939 movie, The Wizard of Oz. In one scene along the yellow brick road in the dark forest, Dorothy, the Tin Man, and the Scarecrow talk of the scariest things they might encounter, repeating their greatest fears with the line “Lions and Tigers and Bears, Oh My!” as they scurry through the forest. If Dorothy and her sidekicks were here today, they might be heard to say Lions and Tigers and Bears, and COVID-19, Oh My!
For sure the COVID-19 virus, also known as Coronavirus, has, since its arrival from China, struck fear in the hearts of all Americans. For business owners, it brings uncertainty, disruption, and the potential loss of significant revenue.
With no vaccine to prevent it, or any known cure, we have been bombarded over the last several weeks with recommendations by our Centers for Disease Control (CDC), advising us to wash our hands very well, disinfect surfaces, and to stay away from each other. (Social distancing they call it.) All this hand washing and cleaning does not, however, help business owners navigate through the myriad issues involving their employees, and customer and supplier relations. Indeed, for business owners, particularly those in the construction industry, the uncertainties created by the COVID-19 virus are many and, seemingly, infinite.
Clearly, business owners cannot possibly predict all potential ramifications of the presence of COVID-19, but, armed with proper information, business owners can take informed steps to protect their workplace, enact policies, and introduce contractual terms that will help get their businesses through this latest threat.
All around the country, employers are asking many of the same questions. What must I do for my employees? What can I do to limit potential liability, exposure and impact to my business?
First, all employers must know that there is a general requirement to provide a safe workplace. In fact, the OSHA Act includes a section which states that each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees. Clearly, with the number of deaths already experienced, the aforesaid statutory requirement under OSHA would include keeping the workplace free of known and suspected carriers of the COVID-19 virus. The CDC has issued interim guidance for businesses and employers which advises employers to, among other things, encourage sick employees to stay home, even without a doctor’s note, separate sick employees, send employees home if they appear to have acute respiratory illness symptoms, to advise employees to review CDC Traveler’s Health Notices before traveling, and to check themselves for symptoms of acute respiratory illness upon return. In addition, employers should identify possible work-related exposure and health risks to employees, coordinate existing policies, including leave and sick policies, accommodations and flexible working arrangements. Employers should further establish flexible working arrangements, including remote work. Employers should identify essential business functions and critical supply chains required to maintain business operations and plan for potential interruptions.
Managers should not play ersatz doctors engaging in testing and diagnosing employees who display symptoms, appear to be sick, or express concerns that they may have contracted the virus. Instead, they should encourage such employees to seek emergency assistance and contact their state health departments.
Implications of FMLA and ADA for Employees Forced to Work Remotely or Under Self-Imposed Quarantine Due to Coronavirus
If not done so already, all employers should provide updated information to employees about the symptoms of COVID-19. Employers should also readdress all leave and accommodation policies which will be applied to any employee who was asked to work remotely or has self-quarantined due to Coronavirus. Under the Family Medical Leave Act (FMLA), an employee must have a “serious health condition” and otherwise satisfy FMLA eligibility criteria before the employee may invoke their 12 weeks of unpaid FMLA leave. The question is do the symptoms of COVID-19 rise to the level of serious health condition? Though such symptoms have been described as flu-like, they may still be considered a serious health condition depending on the circumstances. As such, an employee with COVID-19, or an employee who is taking care of a family member with COVID-19, may be permitted to take protected FMLA leave.
Generally speaking, a condition that is temporary and non-chronic, such as Coronavirus, does not qualify as a “disability” under the ADA. However, the ADA also prohibits discriminating against employees with perceived disabilities or employees who associate with those with actual or perceived disabilities. Employers may not discriminate against an employee with a disability or employees with perceived disabilities. Rather, employers are required under the ADA to provide reasonable accommodations to such employees. One such accommodation might be to permit the employee to work remotely. Employees who are provided with this accommodation must still live up to the same productivity standards required by the employer. Employers are not required to accept under the ADA, low-quality or low-productivity as a reasonable accommodation. If certain employees who have been exposed to the Coronavirus are permitted to work remotely and this accommodation does not result in expected levels of contributions, the employer could provide a leave of absence as the next best reasonable accommodation.
Thomas O. Williams, Esquire