Health-care employers face unique concerns about protecting their workers and themselves during the new coronavirus pandemic, including refusals to work, concerns over employee fevers, and wages for sick employees.
Employers also must stay in compliance with regulations and maintain good communication with employees during this unprecedented time.
How Do We Manage Refusals to Work?
Employees who believe their workplace is safe are less likely to refuse to report to work. Health-care providers should consider implementing the measures recommended by the Centers for Disease Control and Prevention and Occupational Safety and Health Administration as a means of providing a safe workplace as required by OSHA’s general duty requirement.
OSHA recently issued guidance on preparing workplaces for Covid-19, as well as interim guidance for U.S. workers and employers of workers with potential occupational disclosure to Covid-19. This guidance included a specific supplement for health-care workers.
An employee who refuses to report or to perform the work requested may be protected under OSHA when the employee acts in good faith and has an objectively reasonable, supported belief that they are confronted with “a real danger of death or serious injury,” including a serious illness. The employee should be educated to first alert the employer so that corrective measures may be implemented before refusing to work.
The National Labor Relations Act may also provide protection to employees who refuse to work. The NLRA protects workers in both union and non-union settings from discipline when engaging in protected “concerted activity”—that is activity that involves more than a single employee’s concerns.
In the event an employee refuses to report to work or perform an assignment, the employer should communicate with the employee to understand the basis for the refusal and educate the employee as to the safeguards in place. If the employee continues to refuse, consult with legal counsel before disciplining or terminating the employee to avoid legal liability.
Can Providers Take Employee Temperatures?
The EEOC’s position has historically been that measuring an employee’s body temperature constitutes an improper medical examination under the Americans with Disabilities Act. a. With the pandemic, the EEOC has clarified that employers may measure body temperature because the CDC and state and local health authorities have acknowledged community spread of Covid-19 and have issued attendant precautions.
Employers concerned about privacy implications or potential ADA violations may consider the alternative of requiring their employees to take their own temperatures and stay home if they determine they have a fever (100.4 degrees or higher).
Employers who decide to take employee temperatures should develop a plan to minimize legal risk including privacy implications and record maintenance. To avoid future wage and hour claims, employers should be prepared to track time spent waiting for and being screened, and to pay employees for this time.
Finally, employers should be prepared to handle objections from employees. Staff who object on religious or disability grounds may require reasonable accommodation under Title VII or the ADA, and groups of employees who refuse to participate in screening may be engaging in protected concerted activity under the National Labor Relations Act (NLRA).
Should Sick Employees Be Paid?
Exempt employees must be paid their regular salaries any time they work any portion of a workweek. However, non-exempt employees need be paid only for the time they work and for times deemed compensable under such employers’ policies and procedures.
Non-exempt employees who are out sick or to care for a relative may be entitled to use paid sick time or other paid time off (PTO), such as vacation, personal days, etc.
In addition, the Families First Coronavirus Response Act (FFCRA), requires private employers with fewer than 500 employees to provide up to 80 hours of emergency paid sick leave for certain reasons related to the coronavirus pandemic, including when an employee is experiencing symptoms of coronavirus and seeking a medical diagnosis, or the employee has been advised by a health-care provider to self-quarantine.
Notably, the FFCRA permits employers of health-care providers to exclude them from coverage. The Department of Labor issued a temporary rule April 1 interpreting the FFCRA in which it defines “health care provider” broadly to include “anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, Employer, or entity.”
Additionally, in order to minimize the spread of Covid-19, the DOL encourages employers to be judicious when using this definition to exempt health-care providers from the benefits granted by the FFCRA.
Additional measures employers may take to compensate non-exempt employees who cannot work and do not have available PTO, include providing discretionary paid administrative leave, allowing coworkers to share or donate PTO with others, and advancing future PTO.
Additionally, for those non-exempt employees who have some work duties that can be done remotely, employers may extend telework options, provided they have a way to track and record remote work time.
Eight Steps Health-Care Employers Should Take
- Communicate regularly with staff. Educate staff on preparing for potential Covid-19 cases, including training staff on how Covid-19 spreads, clinical management of infected individuals and best practices for infection prevention.
- Designate coronavirus-ready staff. Designate staff members responsible for treating suspected or known coronavirus patients, and make these employees aware of recommended work restrictions and monitoring for potential staff exposure.
- Require sick employees to stay home. Monitor employees and ensure maintenance of staff operations by making employees aware of sick leave policies. Require employees to stay home if they are ill and send them home if they exhibit symptoms of Covid-19 while in the workplace.
- Develop a plan for screening employees for Covid-19 symptoms. Now that community spread has become a reality in many areas, CDC and EEOC guidelines permit employers to screen staff for fever or respiratory systems.
- Create contingency plans for potential staffing shortages. Health-care providers increasingly utilize telehealth in lieu of in-person visits, but many health-care facilities cannot rely on telework or telehealth. As the Covid-19 outbreak may increase absenteeism, health-care facilities should create a contingency plan to ensure appropriate staffing levels, which might include extending hours, cross-training current employees, or hiring temporary workers.
- Train employees to properly don and doff personal protective equipment. A particularly important preparation step is ensuring that employees are aware of the appropriate personal protective equipment to use while treating patients that have or are suspected to have Covid-19 and proper technical for donning and doffing. Additionally, providers that are not already experiencing shortages of PPE should begin formulating contingency plans as PPE becomes more difficult to obtain. Finally, employers should communicate directly with employees about proper PPE and address any concerns they may have with respect thereto.
- Encourage good personal hygiene. Remind employees of the need to frequently wash their hands with soap and water for at least 20 seconds; avoid touching their eyes, nose, or mouth with unwashed hands; and avoid close contact with people, unless treatment of the patient requires it.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Denise Dadika is a member of the firm in the Employment, Labor & Workforce Management practice at Epstein Becker Green. She serves on the practice’s national Steering Committee and is co-chair of the firm’s Health Employment and Labor (HEAL) strategic industry group. Dadika also manages the firm’s Newark, N.J., office.
Anjali N.C. Downs is a member of the firm in the Health Care and Life Sciences practice, in the Washington, D.C., office of Epstein Becker Green. Her practice focuses on fraud and abuse and federal and state regulatory compliance within the health-care industry.
Nathaniel M. Glasser is a member of the firm in the Employment, Labor & Workforce Management practice of Epstein Becker Green. His practice focuses on the representation of employers in employee relations and human resources compliance, as well as litigating claims of harassment, discrimination, whistleblowing, and wage-hour violations.
Anjana D. Patel is a member of the firm in the Health Care and Life Sciences practice, in the Newark and New York offices of Epstein Becker Green. Her practice focuses on health-care transactions and regulatory compliance counseling.