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Keeping You Informed.


Posted by Stephen B. Rotter | Mar 27, 2020

1. Can employers send or keep a sick employee home?

Yes, employers can send or keep a sick employee at home. Employers should be cautious as to not discriminate against any specific group, but base decisions on a good faith belief and probable cause to determine if an individual is sick, including an employee's own disclosure or reasonable observation. Inaction by not sending sick employees home may lead to an OSHA violation, among other regulations, which requires employers to keep their workplaces free from potential hazards, such as C19ˢᵐ.

2. How long may employers require employees to stay home and not come to the workplace?

Employers may require sick employees to stay home until they have been symptom-free for at least 24 hours, although 48 hours is a safer choice and is reasonable. In some states, employers can require employees to provide doctors notes to return back to the workplace. However, following the CDC's advice, requiring doctor's notes is not recommended for return to work (due to medical personnel being extremely busy during this time), so employers should focus on each employee's individual symptoms.

*Some states, like Colorado, enacted emergency rules for sick leave, requiring employers in certain industries to provide up to four days of paid sick leave to employees exhibiting C19ˢᵐ symptoms and waiting to be tested. These industries include: Leisure and hospitality, food service, child care, education (and related work), home health care (if working with elderly, disabled, ill, or high-risk individuals), nursing home, and community-living facilities – and in Colorado are in effect for at least the next 30 days (until mid-April 2020).

3. Can employers require employees to test negative for C19ˢᵐ or obtain a doctor's note reflecting the same before allowing back in the workplace?

Generally speaking, no. Requiring employees to submit medical test results could be considered an ADA violation unless permissible by local, state, or federal governments. Employers may also ask an employee if they are experiencing any C19ˢᵐ symptoms (e.g., fever, cough, upper respiratory illness). Employers may recommend employees with such symptoms get tested for C19ˢᵐ before returning to the workplace.

4. What should employers do if an employee tests positive for C19ˢᵐ, or are exposed to someone who has?

• If an employee tested positive for C19ˢᵐ, employers may require them to stay at home for at least 14 days, and we recommend they provide sick leave during this time period - but be open to additional days if they require additional time off.

• If employees are confirmed to have been exposed to someone who tested positive for COVID- 19, we recommend the employer mandates a 14-day quarantine period and provides sick leave during this time period.

• If employees are unable or uncomfortable to work (because of the current climate), employers should allow them to stay at home and use regular PTO options.

• Note: until testing is widely available, employers may not be able to mandate the “quarantine” options because they won't have the ability to confirm positive testing for C19ˢᵐ. Until testing is widely available, employers will have to rely on good faith beliefs, reasonable caution, and probable cause assessments to make the best decisions for their workforce, and for their communities to the extent their employees have direct interaction with the public.

• Note: some employees may claim they were exposed to someone who was exposed to someone who tested positive for C19ˢᵐ (or make similar claims raising concerns but not providing confirmation of direct exposure). In these cases, be mindful of the balance between panic and reasonable steps to take based on a good faith belief or actual evidence. Thus, speak with the employee to confirm the degrees of separation and timing, request the employee monitor their own health and symptoms, encourage them to stay home if they become ill, and let them know if they test positive for C19ˢᵐ, or are exposed to someone who has, they will be quarantined for 14-days (or more in some cases) - and we recommend providing paid leave. Further, see above for emergency sick leave rules which states are enacting.

5. What strategies should I have in place?

First, employers should put someone in charge of regularly monitoring the CDC and your state's emergency health websites. For example, the CDC provides business-response guidance:

Second, employers should implement C19ˢᵐ policies and apply them consistently across their workforce, ensure frequent environmental cleaning of workplaces, remind employees of anti- discrimination, harassment, and retaliation policies, and actively encourage employees to stay home if feeling sick - or taking care of sick family members.

Third, because of the ‘work from home' climate, employers should ensure they have the technology in place to service its workforce population should all employees need or chose to work from home.

6. Should I restrict work travel?

Employers may limit or stop business travel. It is important for employers to frequently consult the CDC's website for current travel notices in order to stay informed and up-to-date on current travel suggestions.

7. Can I stop employees from personal travel?

No, but companies may deny time-off requests, if the basis of the denial is a legitimate business- driven reason, such as travel to known high risk areas as designated by the CDC. Employers should let their employees know that personal travel to high-risk areas may result in self-isolation (i.e. quarantine) potentially for a long period of time. Colorado, and other states, have lawful off- duty conduct statutes, which prohibit employers to discriminate against employees who participate in lawful activities while not at work, such as personal travel.

8. Can I require employees to travel if needed for the business?

Employers are allowed to require employees to travel if it is necessary to the business, although not if it violates any current laws, regulations, or mandates (such as travel to high-risk areas, whether it's C19ˢᵐ or under another advisory). As always, it is important to apply travel policies consistently to avoid actual, or the appearance of, discrimination (or favoritism).

9. Should I cancel upcoming conferences/conference attendance, regardless of location?

Cancelling upcoming conferences and events regardless of location is not yet required in the United States. However employers should use a great deal of consideration, and consult the CDC's guidelines for large group gatherings. If employers choose to hold conferences they should encourage healthy practices, such as limiting handshakes at the event.

10. How do I keep my workforce on top of Coronavirus information and company decisions?

In order to keep your workforce on top of C19ˢᵐ info and company decisions, consider sending out newsletter-style updates on the situation via emails with links to the CDC's website. Keep employees up-to-date on preventative measures that your company is taking, resources that are available around the workplace, and direct them to websites like the WHO and CDC for more detailed information about the outbreaks.

Questions, concerns, or additional guidance?

Stephen Rotter or Jennifer Gokenbach

The Workplace Counsel


[email protected]

[email protected]

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