By Catherine F. Burgett and Robert A. Harris
Law You Can Use
With new COVID-19 cases diagnosed daily, you should know how this new coronavirus could impact your workplace. From travel policies to being sent home if you are sick, here are the basics of labor and employment law relating to the new coronavirus.
Your Employer Should…
Your employer should provide you with plenty of hand washing and other cleaning supplies. For now, the Centers for Disease Control and Prevention (CDC) only recommends protective equipment (like face masks) for healthcare professionals.
It is also your employer’s right to ask you to leave if you are sick and return when you are symptom-free. Your employer may also ask whether you are exhibiting symptoms of COVID-19 or request to take your temperature. Depending on their existing policies, your employer can also require you to use sick time or vacation time when not working.
Note that the U.S. House of Representatives passed a bill called the Family First Coronavirus Response Act (FFCRA) that, among other things, extends paid sick leave to employees and family members affected by COVID-19, and expands Family Medical Leave Act (FMLA) protections and benefits for absences related to the pandemic. The Senate is expected to consider that bill shortly, and it already has the President’s support.
Outside of the FFCRA, if you are a non-exempt employee, your employer only has to pay you for the hours you work (including hours worked from home) or if you are using paid leave. If you are an exempt employee and do any work in a week, you should be paid for the whole workweek. If you don’t know whether you are exempt/non-exempt, a good rule of thumb is to check if you get overtime pay. Hourly employees who get overtime pay are generally non-exempt, while exempt employees typically earn a set salary regardless of the number of hours worked.
If you are diagnosed with COVID-19, you should tell your employers so they can take steps to protect your coworkers. Under medical privacy laws, your employer cannot share your confidential information.
FMLA and ADA
It is very likely that COVID-19 would be considered a serious health condition under the FMLA, even outside of the provisions of the FFCRA. If you can’t get in to see a doctor in time to complete FMLA paperwork that proves you have a serious health condition, you should know that your employer can conditionally certify your FMLA request. Check with your employer and the U.S. Department of Labor’s website to learn more details about COVID-19 and FMLA.
Since it is not a permanent disease, COVID-19 is most likely not considered a disability under the Americans with Disabilities Act (ADA). But, since COVID-19 could impact or worsen an existing disability, employers should still consider providing reasonable accommodations where appropriate. For example, if you have a condition that makes you more vulnerable to COVID-19, you could request to work from home if that is reasonable for your workplace.
Employees who are laid off or required to self-quarantine as a result of COVID-19 may be eligible for unemployment compensation. Ohio Department of Jobs and Family Services has released guidance available on their website.
In most cases, your employer can still require you to travel for work. If you are worried about traveling for personal health reasons, you can submit a reasonable accommodation request under the ADA.
Employers can’t prohibit, but they can discourage, personal travel to high-risk areas. They can require you to tell them where you, and the people you live with, have travelled. They can also tell you that travelling to high-risk areas could mean you have to stay in quarantine for a period of time when you return.
A medical exam can only be required if it is directly job-related – meaning if you could pose a direct threat to the health or safety of your workplace. Your employer may ask you to submit to a medical exam after returning from travel or after being quarantined. According to the CDC, there has been evidence of community spread, and the World Health Organization declared COVID-19 a pandemic, which likely makes medical examinations, including temperature readings, permissible.
Stay up to date on what you should know about COVID-19 on the CDC website. The Ohio Department of Health has a coronavirus-specific website where you can learn about Governor Mike DeWine’s latest directives including closures and travel information, prevention techniques and best practices for responding to a diagnosis.
About the Authors
Catherine F. Burgett is an attorney with Frost, Brown Todd LLC in Columbus. She focuses her practice on the representation of both public and private employers in a broad range of labor and employment matters, including traditional labor work, employment litigation, breach of contract and advising employers on a daily basis regarding employment issues. Catherine represents a wide variety of small, mid-size and large employers, including those in the health care, manufacturing, logistics, technology, food service, construction, retail and customer service industries as well as several public sector entities in Ohio and surrounding states.
Robert A. Harris is a partner in the Vorys, Sater, Seymour and Pease LLP Columbus office and a member of the firm’s labor and employment and immigration groups. Harris has experience in a wide range of labor and employment matters, including wage and hour class actions, Fair Labor Standards Act (FLSA), Title VII, the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA) and the Family and Medical Leave Act (FMLA).