More and more employers are encouraging employees to stay at home if they are sick or if they have symptoms that may correspond with an acute respiratory illness. In the interest of efficiency, some employers are simply circulating (or cutting and pasting from) the recommendations as set forth in this: https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html
While employers need to move quickly, that is not mutually exclusive from thinking through with celerity legal and practical, such as:
1. The CDC guidance does not specifically list in one place the symptoms that may indicate acute respiratory illness. Employers may wish to spell them out. Ideally, an employer should check with a medical professional before doing so. Without my providing medical advice, it is my understanding that the following are three (3) of the more common symptoms of an acute respiratory condition:
a. (100.4° F [37.8° C] or greater)
b. Coughing
c. Shortness of breath
2. The CDC language speaks to “employees who have symptoms of acute respiratory illness.” However, the above symptoms do not necessarily mean the employee has an acute respiratory illness, let alone the coronavirus. Employers need to be careful not to create panic. Employers may be better off speaking of symptoms that may indicate an accurate respiratory illness. Employees with such symptoms should be encouraged to check with their health care professional. Health care professionals may be unavailable so that, now more than ever, employers may wish to explore contracting with a telemedicine organization.
3. Some of the symptoms, such as coughing or shortness of breath, may be consistent with conditions that are not contagious, such as asthma. The CDC’s broad language may create ADA issues for employers by keeping out of work employees who pose no risk to others. In balancing competing risks, employers may wish to state that the encouragement (or requirement) that employees stay at home does not apply if an employee is coughing and/or experiencing shortness of breath and such symptoms relate to a previously-identified, non-contagious condition, such as asthma, and have not increased in severity.
4. An employer may wish to send an employee home who is experiencing symptoms that may be consistent with an acute respiratory condition. However, the employer may want to give the employee an opportunity to provide an explanation; see prior paragraph. Further, to mitigate the potential for conscious or implicit bias, an employer would be well served, whenever possible, to require approval by a second designated individual.
5. If an employer has a policy or practice relative to requiring employees to stay at home and/or sending them home if they have certain symptoms, employers need to consider whether to impose the same requirements on independent contractors and visitors as well as on employees employed by a temporary agency or contractor. Of course, with regard to temporary and agency employees, imposing the requirements on their employees, directly or indirectly, may be one factor in determining joint-employer status. But an employer needs to balance the joint employer risk against the health and business continuity risks of not imposing the requirements.
These are but some of the issues that an employer may wish to consider when dealing with an employee who has “only” possible symptoms of COVID-19 or another respiratory illness.
Now, wash your hands with soap and water for at least 20 seconds. Think of someone you love and the time will go quickly!
This blog is not legal or medical advice, should not be construed as applying to specific factual situations or as establishing an attorney-client relationship.
Follow me on Twitter at: @Jonathan_HR_Law.
Jonathan A. Segal is a partner at Duane Morris LLP in the Employment, Labor, Benefits and Immigration Practice Group . He is also the managing principal of the Duane Morris Institute . The Duane Morris Institute provides training for human resource professionals, in house counsel, benefits administrators and managers at Duane Morris, at client sites and by way of webinar on myriad employment, labor, benefits and immigration matters. Read Jonathan's blog at the Duane Morris Institute or follow him on Twitter @Jonathan_HR_Law .
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