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Employers Must Balance Risk, Compliance as Coronavirus Spreads

March 3, 2020, 10:30 AM

Employers in U.S. states without sick-leave laws likely will be responsible for determining the best course of action to prevent the spread of coronavirus in the workplace, and their options don’t necessarily have to include providing pay or job protections during periods of absence.

As confirmed and suspected infections mount and strain public health resources, employers will face increased pressure to safeguard their employees. Companies will have to navigate compliance with federal and state laws surrounding leave, and exercise an abundance of caution to reduce the risk of spreading disease in the workplace—even if that means requiring workers to stay home without having to pay them for it.

The federal Family and Medical Leave Act guarantees unpaid, job-protected leave for workers at businesses with at least 50 employees who have a serious health condition or must care for a family member with a serious health condition. Someone who tests positive for the COVID-19 coronavirus probably would qualify as having a serious health condition due to the medical care, or even inpatient care, that would be necessary, lawyers and public health officials told Bloomberg Law. But a situation involving quarantine, especially if the individual does not have a confirmed diagnosis, presents a far murkier area of interpretation.

“Employers are grappling with these questions in real time, right now. The situation is evolving, seemingly, by the minute or second,” said Jeff Nowak, a management-side attorney with Littler Mendelson who specializes in FMLA litigation. “The FMLA requires employers to provide employees leave when they’re incapacitated from working,” and anyone receiving inpatient care for the virus would be deemed eligible, he said. For a “simple” quarantine, when the worker is waiting to see if symptoms develop after possible exposure, “it’s not as clear.”

Employers face a different set of requirements in several states and municipalities where workers have access to paid sick-leave benefits or job-protected leave. Ten states and the District of Columbia have mandates in place that require employers to provide workers with paid time off for illness. Some states, including South Carolina, Texas, and Minnesota, have laws that protect employees in quarantine, while other jurisdictions, including Arizona, Michigan, and New Jersey, provide job protection for short periods of time when a worker or a family member has been deemed a risk to public health.

Many businesses are looking to state public health officials and the national Centers for Disease Control and Prevention for guidance. According to the CDC, employers should encourage workers suffering from respiratory illness or discomfort to stay home until they have been free of fever and other symptoms for 24 hours. Symptoms of COVID-19 include fever, cough, and shortness of breath, and can appear within two to 14 days after exposure, according to the agency. The CDC also suggests employers offer flexible and “non-punitive” policies for sick leave.

Even in cases where FMLA protection might not apply, such as with businesses that do not meet the 50-employee threshold, most employers would probably want to respect a worker’s need to quarantine at home for two weeks without penalizing them, said Myra Creighton, an employment law attorney at Fisher & Phillips LLP in Atlanta.

“If there’s some kind of government agency telling them to isolate themselves—seriously, am I going to hold that against them, as an employer?” she said.

Medical leave laws are only one part of the broader compliance considerations facing employers, Creighton added, noting that sending a worker home for two weeks of unpaid leave because of a cough could raise concerns under the Americans with Disabilities Act.

“Your obligations under the ADA aren’t suspended simply because there’s a new virus out there,” she said.

The U.S. Equal Employment Opportunity Commission reinforced that point by reissuing guidance for employers on how to deal with an infectious disease outbreak while following the CDC’s guidelines but not running afoul of ADA requirements.

Varying State Approaches

Florida, which has two confirmed cases of coronavirus as of Monday evening, is an example of the many states that don’t require employers to provide paid sick leave. State law also blocks cities and counties from imposing local sick-leave requirements.

The state is home to a civilian workforce of 10.5 million people, including nearly 1.3 million individuals in the leisure and hospitality industries, where interactions with the public are routine, according to the latest data from the Labor Department’s Bureau of Labor Statistics. The governor ordered a declaration of public health emergency on March 1, but there’s no indication the order could bring new employment protections for workers who need time off.

The situation for workers in Florida is comparable to a hurricane evacuation—when state officials recognize a threat to the public but don’t require employers to give workers paid time off or to protect them from being fired for missing work, said Lindsey Wagner, an employment lawyer at Scott Wagner and Associates P.A., which has offices in Florida and California.

“There’s not any protection in that scenario,” Wagner said.

Alternately, Washington state, one of the states most heavily affected by the virus at the moment, has programs in place for paid sick leave and paid family and medical leave.

“We are very much in the infancy of our paid family and medical leave program, but we are trying to do the analysis now and working in coordination with the governor’s office and agencies about how these tools can help the current outbreak,” said Nick Demerice, public affairs director of the state’s Employment Security Department.

Quarantine may fall between the two leave benefits, he said. Such situations could require more time off for care than the employee has accrued in paid sick leave—workers get one hour of sick leave for every 40 hours worked—but also not qualify them for the paid family and medical leave available for longer absences.

“We want to be able to utilize the tools we have to make sure that individuals are financially sound while simultaneously caring for themselves and their families,” Demerice said, noting officials are analyzing circumstances under which a quarantine would qualify for workplace protections.

Low Wage, High Risk

Across the U.S., public health officials will likely struggle with the reality that the lowest wage earners are also generally those who have the least access to paid time off for illness.

“Asking someone to stay home from work and quarantine themselves, where only maybe a fraction of that time is paid, is asking them to make really difficult decisions,” said Alex Baptiste, policy counsel for workplace programs at the National Partnership for Women & Families. “Those are real-life consequences.”

Additionally, in some cases the workers most likely to interact with the public are the same workers who lack paid sick-leave benefits. For example, 52% of food and hospitality workers lack access to paid sick leave, according to data from the Bureau of Labor Statistics.

“We’ve seen contagions spread that way before, and there’s nothing to say that couldn’t potentially happen again,” Baptiste said, referring to illnesses that are spread in the workplace because infected workers who lack paid leave continue to work.

Employers should make plans to let people work from home when possible, Wagner said, acknowledging that this is not an option for many companies. “That way, people don’t have to necessarily use sick time, especially in Florida where there’s no mandate for paid sick leave,” she said.

To contact the reporters on this story: Genevieve Douglas in Washington at gdouglas@bloomberglaw.com; Chris Marr in Atlanta at cmarr@bloomberglaw.com

To contact the editors responsible for this story: John Lauinger at jlauinger@bloomberglaw.com; Karl Hardy at khardy@bloomberglaw.com

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