Employers are working overtime to determine how to respond to the Coronavirus outbreak, which has quickly turned into an international crisis. Employers rightfully are concerned about the safety of their employees and what they should be doing when one of their employees (or employees’ family members) have traveled through China.
Naturally, a number of my clients have asked me about how they should treat employees returning from China, whether they can force recent travelers to stay away from work, and whether this time away from work would be considered FMLA leave.
I hit these questions head on below:
What Should an Employer Do if It Suspects an Employee Was Exposed to the Coronavirus?
I couldn’t say it any better than my Littler colleagues Alka Ramchandani-Raj and Melissa Peters, who suggest the following approach in this informative alert about action steps for employers:
If an employee has traveled to China in the last 14 days and is exhibiting signs and symptoms of the virus (i.e., feels sick and exhibits symptoms such as fever, cough, or difficulty breathing) the employer should:
- Advise the employee that they must not come to work until the symptoms disappear and/or a doctor has confirmed that they are not contagious.
- Advise the employee to seek medical care right away.
- Contact a medical and security service company so it can connect the employer with the right medical professionals to assist the employee.
- Avoid contact with others.
If an employee becomes ill and/or the employer suspects the employee has been exposed to someone with the virus, there are several things that an employer can do:
- Instruct the employee to work from home for up to 14 days to ensure the employee does not show symptoms of the virus.
- Instruct the employee to obtain a fitness-for-duty/return-to-work notice from their physician.
- Provide leave to employees until the incubation period is exhausted or they return with a fitness-for-duty notice. These leaves of absence should be administered consistent with the employer’s normal leave of absence policies, and may be paid or unpaid.
If the employee has contracted the condition:
- Contact the CDC and local health department immediately.
- Contact a hazmat company to clean and disinfect the workplace.
- Inform other employees of potential signs and symptoms and offer to allow employees to expense their medical test.
- File any workers’ compensation claims necessary if the condition was contracted at work or in relation to a work-related activity (business travel).
- Offer the employee the ability to work from home, or place the employee on administrative leave as necessary. As noted above, the leave should be administered pursuant to normal company policies, and may be paid or unpaid.
Should an Employer Designate FMLA Leave When an Employee is Forced Off Work?
The FMLA provides job-protected leave for specific medical and family reasons. Specifically, employers must provide leave if the employee is incapacitated from working because of their own serious health condition or when they need to care for a family member with a serious health condition.
Clearly, employees with the coronavirus and employees with a child, spouse, or parent infected by the coronavirus are entitled to FMLA leave (if otherwise FMLA-eligible).
But what if the employee demonstrates no symptoms? As an initial matter, employers may be inclined to ask employees suspected of coronavirus exposure to work from home or take a leave of absence, and follow up with the appropriate FMLA notices and certification to be completed. No concerns here with this approach, as my colleagues explain more fully above.
If the employee demonstrates no symptoms of coronavirus, however, the employer should not count any of this leave against the employee’s FMLA allotment, as there is no evidence (yet) of a serious health condition rendering the employee unable to work. Ideally, these employees should work from home with your permission, as they likely are healthy enough to continue working. Employees working from home should be instructed to “self-monitor” for symptoms of the virus, which include fever, coughing, shortness of breath or difficulty breathing. If symptoms develop, the employee should immediately inform the company and should not return to work prior to completing a return to work or fitness for duty evaluation with their physician.
In the meantime, keep these action items in mind when dealing real time with the current outbreak.
Jeff Nowak is a Partner at the law firm of Littler Mendelson and has been named as one of Illinois’ top “40 Attorneys Under 40” to watch in 2012. Jeff is widely recognized as one of the nation’s foremost FMLA and ADA experts, regularly counseling clients on compliance with FMLA and ADA regulations, conducting FMLA/ADA audits and training, and successfully litigating FMLA and ADA lawsuits. Jeff is the author of the highly regarded FMLA Insights blog, which has been selected for four consecutive years by the ABA Journal as one of the top 100 legal blogs (2011-2017) and was also voted the No. 2 Labor and Employment blog by LexisNexis.
The above article first appeared in FMLA Insights and is reprinted with Jeff’s permission.
