COVID-19: FAQs
A. May an employer send home an employee involuntarily who has or is exhibiting symptoms of COVID-19?
Yes. In response to the current COVID-19 outbreak, the Equal Employment Opportunity Commission has cited its 2009 pandemic H1N1 flu guidance, which states that advising workers with symptoms to go home either (a) is not a disability-related action if the illness is akin to seasonal influenza or (b) is permitted under the Americans with Disabilities Act (ADA) if the illness is serious enough to pose a direct threat to the employee or coworkers.
Further, the Centers for Disease Control and Prevention’s (CDC)’s Interim Guidance for Business and Employers advises that employees with symptoms of acute respiratory illness and a fever (greater than 100.4 degrees Fahrenheit) should stay home. Of course, employers should apply this type of policy uniformly and in a manner that does not discriminate based on any protected characteristic (e.g., national origin, gender, race, etc.).
B. May an employer require a return-to-work doctor’s note for an employee to return to work after exhibiting COVID-19 symptoms?
A doctor’s note should not be a prerequisite for returning to work, according to the CDC. This is in part because this requirement would place a high burden on the already burdened healthcare system. If an employee’s situation meets the ADA’s “direct threat” standards, however, an employer may require a return-to-work doctor’s note.
C. May an employee refuse to come to work due to a fear of becoming infected with COVID-19?
Potentially. Employees may be protected from retaliation under the Occupational Safety and Health Act (OSHA) in certain circumstances when they refuse to perform work as directed. Specifically, an employee may refuse an assignment that involves “a risk of death or serious physical harm” if all of the following conditions apply: (1) the employee has “asked the employer to eliminate the danger and the employer failed to do so”; (2) the employee “refused to work in ‘good faith’” (a genuine belief that “an imminent danger exists”); (3) “[a] reasonable person would agree that there is real danger of death or serious injury”; and (4) “[t]here isn’t enough time, due to the urgency of the hazard, to get it corrected the hazard through regular enforcement channels, such as requesting an OSHA inspection.”
D. May an employer refuse an employee’s request to wear self-provided respiratory protection and/or gloves?
Yes, if such measures are not otherwise required by the CDC’s guidance or OSHA’s standards, or if the employer determines that the employee’s use of respiratory protection or gloves in and of themselves presents a hazard to the employee (e.g., if they interfere with the employee’s ability to work safely).
The CDC and U.S. Surgeon General state that respirators are not required and are not protective for the general public working in non-healthcare settings. Given that, employers in non-healthcare settings with no infected employees have no need to require respirators.
E. Are there any OSHA requirements that must be followed when an employee is diagnosed with COVID-19?
Yes, in some cases. First, employers must ensure that the infected employee stays away from the workplace. OSHA may cite an employer under the general duty clause if the employer allows or directs a known infected employee to come to work and expose other employees to the risk of infection.
If an employee in the workplace is suspected of having COVID-19 (i.e., someone displaying symptoms of COVID-19), that employee must be quarantined immediately. Second, employers are required under OSHA’s recordkeeping regulation to record illnesses that are “work related” and meet one of the recording criteria, which include days away from work, job transfer, and medical treatment.
OSHA’s recordkeeping regulation exempts the “common cold and flu” from the recordkeeping requirements. COVID-19, however, is not a common cold or flu. OSHA’s current guidance states that “COVID-19 is a recordable illness when a worker is infected on the job.”
If you have any questions regarding your employment or termination, please contact us at mschley@schleylaw.com or at 732-325-0318.