COVID-19 Employer FAQs
In an effort to keep our clients as informed as possible, below are frequently asked questions regarding employers and COVID-19.
Is an employer required to report suspected Covid-19 cases to the CDC?
No. Any positive test results will be reported to the proper authorities by the healthcare location.
Can an employer require an employee to be tested for Covid-19?
No. At this time, only the healthcare provider can determine if testing of an individual is warranted.
Can an employer ask its employees if they are susceptible to Covid-19?
Employers cannot ask employees if they are susceptible due to employee’s health condition(s) because it may require the employee to reveal a disability, which is a violation of the Americans with Disabilities Act (ADA); however, an employer can ask an employee to disclose whether the employee has recently traveled to any locations with high levels of Covid-19 exposure even if the travel was for personal reasons.
Can an employee refuse to travel for work due to Covid-19 concerns?
It depends. The Occupational Safety and Health Administration (OSHA) allows an employee to refuse to work if the work poses a realistic and present threat. Travel to locations with no confirmed cases is not likely a realistic or present threat. However, an employee could justifiably refuse to travel to a location with high levels of Covid-19 exposure.
Are there any OSHA safety requirements for Covid-19?
No. There are not any specific requirements for Covid-19, but there are OSHA standards that cover an employer’s obligations to prevent occupational exposure to diseases such as Covid-19. Specifically, employers are required to provide its employees a place of employment that is free from recognized hazards that are causing or likely to cause death or serious physical harm. Click here to read the latest OSHA updates. **REMINDER: Employers are prohibited from retaliating against employees for raising concerns about safety and health concerns.
Can an employee refuse to work due to Covid-19 concerns?
Unlikely for most areas. OSHA requires four elements to be present in order for an employee to justifiably refuse to work: (1) employee asked employer to eliminate danger (i.e., provide face mask) and employer refused; (2) employee refused to work based on good faith belief of danger; (3) reasonable person would agree that the employee is in real danger of death or severe harm; and (4) danger is imminent (i.e., not sufficient time for OSHA to handle).
Can an employer ask an employee to stay home if the employee is exhibiting symptoms of Covid-19?
Yes, but the employer should have an objective basis for determining that the employee should stay home to avoid any claims of discrimination based on age or nationality. Also, the employer should require the employee to seek immediate medical attention.
Is an employer required to pay an employee that does not have Covid-19 , but is staying at home and not working due to Covid-19 concerns?
It depends. Setting aside any paid time off policies of the employer, hourly non-exempt employees are not required to be paid for hours not worked. However, employers must be careful about deducting from salaried employees for time off from work. If an employee works any part of a week, the employer should not deduct for time not worked to avoid any violations of the Fair Labor Standards Act (FLSA). The deductions could affect the employee’s classification as an exempt employee under the FLSA. However, if the decision to stay home is the employee’s decision, then the employer can deduct for the time off. **REMINDER: If an employee is not actively working, the employee may no longer be eligible under the employer’s health benefits. Employers should notify their insurance brokers to determine eligibility.
If an employer experiences a decline in business, can the employer require salaried employees to stop working and stop paying them until normal business levels resume?
No. If a salaried employee is ready, willing, and able to work, an employer is not permitted to deduct from the employee’s salary when work is not available.
Can an employee elect to take protected leave under the Family Medical Leave Act (FMLA) if the employee does not have Covid-19, but wants to take FMLA due to concerns?
No. The FMLA does not apply to employees wanting to stay at home to avoid getting Covid-19 or any other illness.
If an employee does have Covid-19, can the employee take FMLA?
Possibly. Generally, contraction of a virus (i.e., flu) does not trigger the ADA and benefits such as FMLA because it is a transitory condition; however, if the employee’s major life activities are limited as a result of Covid-19, then the ADA does apply and FMLA may be an option.
If an employee does contract Covid-19 at work, can the employee file a claim for workers’ compensation?
Unlikely. Contraction of a virus is not by itself an injury, but an employee could claim that it is an “occupational disease” and, therefore, a covered claim for workers’ compensation. An “occupational disease” must arise out of and was in the course of employment and be caused by conditions peculiar to the work and creates a risk of contracting the disease in a greater degree and in a different manner than in the general public. For example, Texas Health and Safety Code under section 81.050(j) has specific employee requirements to make a workers’ comp claim for communicable diseases. **REMINDER: To make a claim for workers’ compensation, the employee must provide medical evidence to support the claim. But check with your state regarding your workers’ compensation laws.