Covid 19 Protocols for Those Who Must Work in the Modes of Transportation [Unpublished]

OVERVIEW

While the serious impact of the COVID-19 pandemic is broadly understood, the role of industry leaders and their counsel is to identify the functional planning measures inherent in their industries as action steps. The protocols necessarily go beyond remote work, social distancing; testing and matters of personal protective hygiene.  This article approaches this subject in terms of the collected views of experts in the basic modes, ships, planes, trucking and trains, and transit hubs incorporating all of them from the viewpoint of micro-protocols.

Accordingly, in addition to mode specific comments, we will include well thought out public guidelines on the issue – focusing on industry orders – CAL/OSHA’s initial safety order guidance, and the California Labor Commissioner’s initial FAQ on integration of pay, sick leave and work rule policies. The states and federal government are rapidly augmenting this area of human resources, so consult your own counsel or the undersigned for up to date information.

Common Best Practices

First responders are models for adaptive planning for transportation industry employers because of their necessarily direct involvement in the field.  Best practices for all such employees and their employers include:

  • Document the incident response number, call location, disposition, and brief notes of the patient encounter without violating HIPPA to serve as evidence of a work-related exposure. 
  • Use appropriate personal protection equipment and follow CDC and OSHA recommended guidelines for healthcare workers. 
  • Allow post-incident time and adequate resource coverage to decontaminate equipment and clothing; ensure crews have time to shower and change into clean uniforms to prevent contamination within stations or vehicles. 
  • Given supply chain challenges, ensure supplies are ordered ahead of time so crews do not run out of needed cleaning supplies. 
  • Educate family members on the seriousness of this virus to prevent increased rates of community transmission onto first responders so that the public safety workforce is not compromised. 

COMMENT: In what follows we have begun to compile references to current links and advice for the modes. To some extent such links will self-update, but as noted above, counsel and safety managers should be directly involved in staying current.  This includes regional updates at the state, federal and international level for individual nations.

I.                   Common Considerations

A.        Respiration and Personal Protective Equipment (PPE)

Any species of ventilation and respiration directs air to the lungs, which are a vulnerable host for this virus. For example, even commonplace devices used for sleep apnea such as CPAP machines should not be used on airplanes because they condense room air and particulates into the lungs.  Hotel rooms and transport cabins present an open question especially in an air-conditioned common plenum system.  Licensed HVAC contractors who understand how such systems work and how to install them stay current on the practical requirements. They are experts in special environments such as hospitals but bring additional expertise to new challenges such as those the virus presents.

For example, the HVAC industry has long used UV systems to address such problems as air purification, odor removal, coil cleaning and mold mitigation.  Some products go as far as reducing microbial populations on surfaces.  The current Novel Coronavirus pandemic has again created a large demand for these UV products, particularly those which are able to kill viruses on surfaces in a home.  It is important to note that not all UV products produce the same results.  Each product must be evaluated based on research performed.  It should be noted that in California, products which use ozone as a purifier, are prohibited.  Whether the system uses ozone or not, the potential for UV lights has a history of success when dealing with indoor air and surface contamination.

Work processes, especially installation invoke special considerations beyond those suggested by the CDC, especially as to filtration masks. Many in use by professional installers are not disposable.  These and other PPE equipment should never be shared and must be subject to an effective cleaning regimen. The same applies to tools and equipment.

B.        Healthcare Supply of Personal Protective Equipment:

https://www.cdc.gov/coronavirus/2019-ncov/hcp/healthcare-supply-ppe.html

C.        Injury and Illness Prevention Plans (IIPP)

Under California law and laws of numerous other jurisdictions, certain employers are required to have Injury and Illness Prevention Plans (IIPP) of most employers, a plan must be tailored to actual workplace risks to be considered effective and thus compliant.  This means that covered workplaces will require updated and expansion of their IIPP policies.

Additionally, every decision that impacts the workplace implicates workplace policies.

II.                Special Considerations for Air Passenger and Freight Transport

The occupational safety and health of flight crewmembers are under the jurisdiction of the Federal Aviation Administration (FAA) and not covered by OSHA standards while they are in aircraft operation. However, under a policy statement issued by FAA, and a Memorandum Of Understanding, (MOU) between FAA and OSHA, Occupational Safety and Health Standards for Aircraft Cabin Members, the other aircraft cabin members are covered by OSHA’s Bloodborne Pathogens (29 CFR 1910.1030), Noise (29 CFR 1910.95) and Hazard Communication (29 CFR 1910.1200) standards while they are on an aircraft in operation (which occurs from the time the aircraft is first boarded by crewmembers, preparatory to a flight, to the time the last crewmember leaves the aircraft after completion of the flight, including stops on the ground, during which at least on crewmember remains on the aircraft, even if the engines are shut down).

However, the CDC has established guidance for airlines and airline crews in dealing with the COVID-19 which can be reached at their website:

https://www.cdc.gov/quarantine/air/reporting-deaths-illness/guidance-reporting-onboard-deaths-illnesses.html

A.                Updated Interim Guidance for Airlines and Airline Crew: Coronavirus Disease:

https://www.cdc.gov/quarantine/air/managing-sick-travelers/ncov-airlines.html

https://www.cdc.gov/coronavirus/mers/hcp/air-transport.html

B.                 COVID-19: Guidance for Staff in the Transport Sector – An English Example:

https://www.gov.uk/government/publications/covid-19-guidance-for-staff-in-the-transport-sector/covid-19-guidance-for-staff-in-the-transport-sector

III.             Special Considerations for Rail Transport, Terminals and Transit Systems

Rail transportation is probably the most sensitive method of transportation when it comes to dealing with infectious diseases, such as flu and COVID-19.  Large numbers of travelers are gathered at a close proximity at the platforms of the stations and inside the trains. This makes it more challenging than any other form of transportation, including air transportation. At the airports, gathering can be controlled and regulated.  This also applies to seating passengers inside airplanes, by removing seats or limited seating regulations. But inside the carts of the train, it is impossible to do so.

The employer is responsible for the safety of employees and customers.  They should give regular updates, distribute posters and establish method of communication with employers and customers about the COVID-19.

In addition, the employer should take certain actions to reduce the risk of COVID-19 that involves, but is not limited to the following:

  • Establish task force committees to meet regularly and communicate with health officials at all levels;
  • Establish a program for station and train cleaning and train cleaning;
  • Enhance communication protocol to provide regular and as needed communication with employees and customs utilizing the most effective means of communication such posters, emails, websites, electronic message boards, announcements, Apps, Alerts…etc.;
  • Explore the possibility of encouraging and recommending social distancing on platforms and inside trains;
  • Provide hand cleaning materials such as sanitizers;
  • Educate the effectiveness and importance of good hygiene practices;
  • Eliminate any act or element that may contribute to the spread of the virus;
  • Provide hand cleaning materials such as sanitizers.

A.                Coronavirus regulations could affect work at Ports of LA and Long Beach:

https://www.dailybreeze.com/new-federal-regulations-battling-spread-of-coronavirus-could-affect-cargo-cruise-ship-industries-at-ports-of-la-and-long-beach

IV.             Special Considerations for Vessel Transport

COMMENT: We identify the recently issued advisory from the United States Coast Guard as especially illustrative

A.                Coast Guard Bulletin - Corona Virus:

https://workersadvisor.com/2020/02/19/coast-guard-bulletin-corona-virus/

V.                Special Considerations for Trucking Transport

DOT’s and Cal/OSHA’s regulations require protection for workers exposed to chemicals, gases, fumes, biohazards, and the airborne and diseases. Covid 19 is an example. The Aerosol Transmissible Diseases (ATD) standard (Title 8, California Code of Regulations, § 5199) contains the requirements for protecting employees from diseases and pathogens transmitted by aerosols while the Transmissible Diseases (XTD) standard and DOT Code of Regulations, contain the requirements for protecting employees from diseases and pathogens transmitted by aerosols, biohazards, chemicals, gases, and fumes commonly faced by employees employed in the petrochemical and chemical industries working for instance in a refinery, loading, transporting and delivering hazardous products.  For instance, certain types of cancers, liver and respiratory diagnostics for many of employees in these industries are diseases covered by the XTD standard.  The XTD standard addresses employers who must comply with all elements of the XTD standard which are referred to as “full standard” employers in this article and “referring” employers who only have to comply with portions of the XTD standard.  Heavy and light products extraction, transportation, refining, storage and delivery are some of the most common examples easily identifiable by the public. These categories of employers are discussed in more detail in the full section of this article on the Cal-Osha Interim guidance, below,

COMMENT:  While many resources have been promulgated in the logistics and trucking industries, advice can range from the apparent and sensible (like wiping steering wheels and other commonly shared nonstandard surfaces) to industry standard processes for customer and goods handling, especially given the likelihood that the virus droplets can remain viable on handled surfaces and goods. We respect the role of organized labor and therefor include a reference to one labor union in the field that is providing helpful teaching.  We note that such working conditions are subject of bargaining as well as due diligence, so meaningful cooperation is good labor law as well as prudent management.

https://teamsters2010.org/2020/03/03/member-coronavirus-covid-19-update/

COMMENT: Acknowledging that federal OSHA guidance is of controlling importance and evolving, we identify California’s initial efforts as a comprehensive first take on OSHA standards-based guidance.

VI.             CAL/OSHA’s Initial Interim Guidance for Protecting Workers from Exposure to Coronavirus

We include CAL/OSHA’s initial safety order guidance, and the California Labor Commissioner’s initial FAQ on integration of pay, sick leave and work rule policies plus links for DOL guidance.  The latest updates issued by executive order may be found here and include the shortening of the waiting period for those affective for EDD claims. See: https://www.gov.ca.gov/2020/03/12/governor-newsom-issues-new-executive-order-further-enhancing-state-and-local-governments-ability-to-respond-to-covid-19-pandemic/

It is important to note that as further knowledge develops, aspects of the Initial Guidance maybe revised and updated. One such area, which the guidance touches on, is the role of engineering and administrative controls. (https://www.dir.ca.gov/title8/5141.html). In pertinent part, these include:

(a) Engineering Controls. Harmful exposures shall be prevented by engineering controls whenever feasible;

(b) Administrative Controls. Whenever engineering controls are not feasible or do not achieve full compliance, administrative controls shall be implemented if practicable;

(c) Control by Respiratory Protective Equipment. Respiratory protective equipment, in accordance with Section 5144, shall be used to prevent harmful exposures as follows:

(1) During the time period necessary to install or implement feasible engineering controls;

(2) Where feasible engineering controls and administrative controls fail to achieve full compliance; and

(3) In emergencies.

Cal/OSHA’s regulations require protection for workers exposed to airborne infectious diseases such as the 2019 Novel (new) Coronavirus (2019-nCoV), first identified in Wuhan City, China in December 2019.  While the interim guidance is primarily directed at providing information to employers and workers in the healthcare industry for preventing exposure to the virus, the guidance extends beyond the healthcare industry.  The Aerosol Transmissible Diseases (ATD) standard (Title 8, California Code of Regulations, § 5199) contains the requirements for protecting employees from diseases and pathogens transmitted by aerosols.  2019-nCoV is an Airborne Infectious Disease (AirID) covered by the ATD standard.  The ATD standard addresses employers who must comply with all elements of the ATD standard which are referred to as “full standard” employers in this article and “referring” employers who only have to comply with portions of the ATD standard.

Full Standard Employers

Employers in the following categories are presumed to have employees with some extent of occupational exposure: health care facilities, laboratories, public health services, police services and other locations where employees are reasonably anticipated to be exposed to confirmed or suspected cases of Aerosol Transmissible Diseases.  Health care facilities and other facilities where they diagnose, treat, and house patients are obvious employers who must comply with all elements of the ATD standard but there are many other employers that are less obvious which must also comply with all elements of the ATD standard such as the following:

  • Paramedic and emergency medical services including those provided by firefighters and emergency responders;
  • Police services provided during transport or detention or persons reasonably anticipated to be cases or suspected cases of ATD or other police services; provided in conjunction with health care or public health operations;
  • Correctional facilities and other facilities that house inmates or detainees;
  • Maintenance, renovation, service or repair operations involving air handling systems or equipment or building areas that may reasonably be anticipated to be contaminated with aerosol transmissible pathogens including areas where suspected cases of airborne infectious disease cases are treated or housed, isolation rooms and/or laboratory hoods and ventilation systems.

The ATD standard requires covered employers to protect employees from AirIDs such as 2019-nCoV through the effective use of the following:

  1. Written ATD exposure plan and procedure;
  2. Training;
  3. Engineering and work practice controls;
  4. Personal protective equipment;
  5. Medical services including vaccination and infection determination and treatment;
  6. Laboratory operation requirements.

The requirements are too detailed to be discussed in detail and can be found at: Title 8, California Code of Regulations, §5199.  Cal/OSHA has published, “The California Workplace Guide to Aerosol Transmissible Diseases” which provides a guide to compliance with the ATD standard. 

 Referring Employers

Referring employers are required to establish a limited set of written procedures instead of the Exposure Control Plan covered under the full ATD standard.  This category of employers includes most primary care offices and clinics, many community-based clinics, long-term health care facilities, school nurses, drug treatment facilities, homeless shelters and jails.  Employees working at such facilities may have direct contact with individuals confirmed or suspected to have an AirID and are therefore at increased risk for infection but not to the same extent as employees in a medical treating facility.

Employers whose employees have occupational exposure but do not provide diagnosis, treatment, transport, housing, isolation or management to patients with known or suspected AirIDs may qualify as referring employers if they meet all of the following conditions:

  1. Screen persons for AirID;
  2. Refer any person identified as a case or suspected case of AirID to an appropriate facility for care;
  3. Do not intend to provide further medical services to AirID cases and suspected cases beyond first aid, initial treatment or screening, and referral;
  4. Do not provide transport, housing, or airborne infection isolation to anyone identified as an AirID case or suspected case unless the transport provided is only non-medical transport in the course of referral.

Referring employers must establish the following six (6) infection control procedures in writing and make them available to employees at the worksite: (1) Designate one person as the administrator to have overall responsibility for ATD infection control procedures, (2) Develop source control procedures, (3) Develop procedures for screening and referring patients exhibiting symptoms of AirIDs to appropriate facilities treatment, (4) Develop procedures to communicate between employees and “upstream” and “downstream” employers with regard to the patient, (5) Develop procedures to reduce the risk of transmission and (6) Provide the same medical services to employees as full standard employers provide.

Even if an employer is not a “full standard” employer or a “referring” employer they must still identify, evaluate, and correct hazards in their workplaces using their Injury and Illness Prevention Program, in accordance with Title 8, California Code of Regulations section 3203.  The following is a list of resources from the Cal/OSHA website.

COMMENT: The wage and hour world and leave laws will experience a sea change as we go forward. We will report on new federal legislation as it is passed and implemented.  As with OSHA, California’s regulatory engine may well serve as a model.

VII.          Coronavirus Disease (COVID-19) – FAQs on laws enforced by the California Labor Commissioner’s Office (https://www.dir.ca.gov/dlse/2019-Novel-Coronavirus.htm)

  1. Can an employee use California Paid Sick Leave due to COVID-19 illness?

Yes. If the employee has paid sick leave available, the employer must provide such leave and compensate the employee under California paid sick leave laws.

Paid sick leave can be used for absences due to illness, the diagnosis, care or treatment of an existing health condition or preventative care for the employee or the employee’s family member.

Preventative care may include self-quarantine as a result of potential exposure to COVID-19 if quarantine is recommended by civil authorities. In addition, there may be other situations where an employee may exercise their right to take paid sick leave, or an employer may allow paid sick leave for preventative care. For example, where there has been exposure to COVID-19 or where the worker has traveled to a high-risk area. 

  1. If an employee exhausts sick leave, can other paid leave be used? 

Yes, if an employee does not qualify to use paid sick leave, or has exhausted sick leave, other leave may be available. If there is a vacation or paid time off policy, an employee may choose to take such leave and be compensated provided that the terms of the vacation or paid time off policy allows for leave in this circumstance.

  1. Can an employer require a worker who is quarantined to exhaust paid sick leave?

The employer cannot require that the worker use paid sick leave; that is the worker’s choice. If the worker decides to use paid sick leave, the employer can require they take a minimum of two hours of paid sick leave per day. The determination of how much paid sick leave will be used per workday is up to the employee.

 

  1. Can an employer require a worker to provide information about recent travel to countries considered to be high-risk for exposure to the Coronavirus?

Yes. Employers can request that employees inform them if they are planning or have traveled to countries considered by the Centers for Disease Control and Prevention to be high-risk areas for exposure to the coronavirus. However, employees have a right to medical privacy, so the employer cannot inquire into areas of medical privacy.

  1. Is an employee entitled to compensation for reporting to work and being sent home?

Yes. Generally, if an employee reports to their regularly scheduled shift but is required to work fewer hours or is sent home, the employee must be compensated for at least two hours or no more than four hours of reporting time pay.

For example, a worker who reports to work for an eight-hour shift and only works for one hour must receive four hours of pay, one for the hour worked and three as reporting time pay so that the worker receives pay for at least half of the expected eight-hour shift. An exception to reporting time pay is where operations cannot commence or continued when recommended by civil authorities.

Additional information on reporting time pay is posted online.

  1. If an employee is exempt, are they entitled to a full week’s salary for work interruptions due to a shutdown of operations?

Federal regulations require that an exempt employee (paid at least the minimum required salary) who performs any work during the week must be paid their full weekly salary if they do not work the full week because the employer failed to make work available.

An exempt employee who performs no work at all during a week may have their weekly salary reduced.

Deductions from salary for absences of less than a full day for personal reasons or for sickness are not permitted. If an exempt employee works any portion of a day, there can be no deduction from salary for a partial day absence for personal or medical reasons.

Federal regulations allow partial day deductions from an employee's sick leave bank so that the employee is paid for their sick time by using their accrued sick leave. If an exempt employee has not yet accrued any sick leave or has exhausted all of their sick leave balance, there can be no salary deduction for a partial day absence.

Deductions from salary may also be made if the exempt employee is absent from work for a full day or more for personal reasons other than sickness and accident, so long as work was available for the employee, had they chosen to work.

  1. What protections does an employee have if they suffer retaliation for using their paid sick leave?

The Labor Commissioner’s Office enforces several laws that protect workers from retaliation if they suffer adverse action for exercising their labor rights, such as using paid sick leave. Additional information on how to file a retaliation or discrimination complaint is posted online.

Given the evolving nature of this unprecedented health emergency, if you choose not to use available paid sick leave, or have no other paid leave available, employees and employers should discuss what unpaid leave options may be provided.

  1. If I am a party in an action filed with the Labor Commissioner’s Office, can I seek an accommodation to participate remotely due to the Coronavirus?

Yes. Requests to participate remotely should be emailed to the district office in which the claim has been filed. These requests will be evaluated on a case-by-case basis. A full listing of Labor Commissioner’s Office locations including email addresses is posted online.

VIII.       An Overview Of Application of leave and Benefit Laws – Vacation/Sick Time/PTO and CFRA/FMLA/PDL/NPLA  A Work in Progress.

 

PTO

Vacation

Sick

Pregnancy

Allow

Allow

Require

CFRA – Self

Require*

Require*

Require*

CFRA – Others

Require*

Require*

Allow

FMLA – Self

Require (except if on workers’ comp)

Require (except if on workers’ comp)

Require (except if on workers’ comp)

FMLA - Others

Require

Require

Require

NPLA

Allow

Require*

Require*

*If an employee is receiving workers’ compensation, paid family leave, or state disability insurance benefits, the employer may not require use of PTO, vacation, or sick leave during CFRA/NPLA leave.  It is anticipated virus pandemic in a workplace will be considered a workplace illness invoking workers compensation coverage, as was the case with Valley Fever. Accordingly, it is imperative to contact your carrier when an incident arises. CAL/OSHA is expected to issue a specific guidance on this issue.

In addition, much attention has been given nationally and in California to the issue of independent and gig workers – The California Labor Secretary and her department have indicated that such workers should apply for unemployment benefit issues and classification issues will be addressed in processing such applications. 

IX.             COVID-19 or Other Public Health Emergencies and the Family and Medical Leave Act Questions and Answers from the DOL

See https://www.dol.gov/agencies/whd/fmla/pandemic

Which employees are eligible to take FMLA leave?

Employees are eligible to take FMLA leave if they work for a covered employer and:

  • Have worked for their employer for at least 12 months;
  • Have at least 1,250 hours of service over the previous 12 months; and
  • Work at a location where at least 50 employees are employed by the employer within 75 miles.

Special hours of service requirements apply to airline flight crew employees and to breaks in service to fulfill National Guard or Reserve military service obligations pursuant to the Uniformed Services Employment and Reemployment Rights Act (USERRA).  (See the U.S. Department of Labor Wage and Hour Division or call 1-866-487-9243 for additional information on FMLA.)

Must an employer grant leave to an employee who is sick or who is caring for a family member that is sick?

An employee who is sick or whose family members are sick may be entitled to leave under the FMLA under certain circumstances. The FMLA entitles eligible employees of covered employers to take up to 12 weeks of unpaid, job-protected leave in a designated 12-month leave year for specified family and medical reasons. This may include the flu where complications arise that creates a “serious health condition” as defined by the FMLA. Employees on FMLA leave are entitled to the continuation of group health insurance coverage under the same conditions as coverage would have been provided if the employee had been continuously employed during the leave period.

Workers who are ill with pandemic influenza or have a family member with influenza are urged to stay home to minimize the spread of the pandemic. Employers are encouraged to support these and other community mitigation strategies and should consider flexible leave policies for their employees.

Can an employee stay home under FMLA leave to avoid getting pandemic influenza?

The FMLA protects eligible employees who are incapacitated by a serious health condition, as may be the case with the flu where complications arise, or who are needed to care for covered family members who are incapacitated by a serious health condition.  Leave taken by an employee for the purpose of avoiding exposure to the flu would not be protected under the FMLA.  Employers should encourage employees who are ill with pandemic influenza or are exposed to ill family members to stay home and should consider flexible leave policies for their employees in these circumstances. 

What legal responsibility do employers have to allow parents or care givers time off from work to care for the sick or children who have been dismissed from school?

Covered employers must abide by the FMLA as well as any applicable state FMLA laws.  An employee who is sick, or whose family members are sick, may be entitled to leave under the FMLA.  The FMLA entitles eligible employees of covered employers to take up to 12 weeks of unpaid, job-protected leave in a designated 12-month leave year for specified family and medical reasons which may include the flu where complications arise that create a “serious health condition” as defined by the FMLA.

There is currently no federal law covering non-government employees who take off from work to care for healthy children, and employers are not required by federal law to provide leave to employees caring for dependents who have been dismissed from school or child care.  However, given the potential for significant illness under some pandemic influenza scenarios, employers should review their leave policies to consider providing increased flexibility to their employees and their families.  Remember that federal law mandates that any flexible leave policies must be administered in a manner that does not discriminate against employees because of race, color, sex, national origin, religion, age (40 and over), disability, or veteran status.

Is an employer required by law to provide paid sick leave to employees who are out of work because they have pandemic influenza, have been exposed to a family member with influenza, or are caring for a family member with influenza?

Federal law generally does not require employers to provide paid leave to employees who are absent from work because they are sick with pandemic flu, have been exposed to someone with the flu or are caring for someone with the flu, although pursuant Executive Order 13706, some federal contractors may be required to provide such leave to employees under certain circumstances, such as if the employee or a family member is sick with the flu or seeking care related to the flu. Certain state or local laws may have different requirements, which should be independently considered by employers when determining their obligation to provide paid sick leave.

If the leave qualifies as FMLA-protected leave, the statute allows the employee to elect or the employer to require the substitution of paid sick and paid vacation/personal leave in some circumstances.  Employers should encourage employees that are ill with pandemic influenza to stay home and should consider flexible leave policies for their employees.

May employers send employees home if they show symptoms of pandemic influenza? Can the employees be required to take sick leave? Do they have to be paid? May employers prevent employees from coming to work?

It is important to prepare a plan of action specific to your workplace, given that a pandemic influenza outbreak could affect many employees.  This plan or policy could permit you to send employees home, but the plan and the employment decisions must comply with the laws prohibiting discrimination in the workplace on the basis of race, sex, age (40 and over), color, religion, national origin, disability, or veteran status.  It would also be prudent to notify employees (and if applicable, their bargaining unit representatives) about decisions made under this plan or policy at the earliest feasible time.

Your company policies on sick leave, and any applicable employment contracts or collective bargaining agreements would determine whether you should provide paid leave to employees who are not at work.  If the leave qualifies as FMLA-protected leave, the statute allows the employee to elect or the employer to require the substitution of paid sick and paid vacation/personal leave in some circumstances.  (See the U.S. Department of Labor Wage and Hour Division for additional information or call 1-866-487-9243 if you have any questions.)

Remember when making these decisions to exclude employees from the workplace, you cannot discriminate on the basis of race, sex, age (40 and over), color, religion, national origin, disability, union membership or veteran status.  However, you may exclude an employee with a disability from the workplace if you:

  • Obtain objective evidence that the employee poses a direct threat (i.e. significant risk of substantial harm); and
  • Determine that there is no available reasonable accommodation (that would not pose an undue hardship) to eliminate the direct threat.

(See the U.S. Equal Employment Opportunity Commission’s Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act for additional information.)

May an employer require an employee who is out sick with pandemic influenza to provide a doctor’s note, submit to a medical exam, or remain symptom-free for a specified amount of time before returning to work?

Yes.  However, employers should consider that during a pandemic, healthcare resources may be overwhelmed and it may be difficult for employees to get appointments with doctors or other health care providers to verify they are well or no longer contagious.

During a pandemic health crisis, under the Americans with Disabilities Act (ADA), an employer would be allowed to require a doctor’s note, a medical examination, or a time period during which the employee has been symptom free, before it allows the employee to return to work.  Specifically, an employer may require the above actions of an employee where it has a reasonable belief – based on objective evidence – which the employee’s present medical condition would:

  • Impair his ability to perform essential job functions (i.e., fundamental job duties) with or without reasonable accommodation, or,
  • Pose a direct threat (i.e., significant risk of substantial harm that cannot be reduced or eliminated by reasonable accommodation) to safety in the workplace.

In situations in which an employee’s leave is covered by the FMLA, the employer may have a uniformly-applied policy or practice that requires all similarly-situated employees to obtain and present certification from the employee’s health care provider that the employee is able to resume work.  Employers are required to notify employees in advance if the employer will require a fitness-for-duty certification to return to work.  If state or local law or the terms of a collective bargaining agreement govern an employee’s return to work, those provisions shall be applied.  Employers should be aware that fitness-for-duty certifications may be difficult to obtain during a pandemic. 

May employers change their paid sick leave policy if a number of employees are out and they cannot afford to pay them all?

Federal equal employment opportunity laws do not prohibit employers from changing their paid sick leave policy if it is done in a manner that does not discriminate between employees because of race, sex, age (40 and over), color, religion, national origin, disability, or veteran status.  Be sure also to consult state and local laws.

In addition, you should consider that if your workforce is represented by a labor union and the collective bargaining agreement covers sick leave policies, you may be limited in either the manner in which you change the policy or the manner of the changes themselves because the collective bargaining agreement would be controlling. In a workplace without a collective bargaining agreement, employees may have a contractual right to any accrued sick leave, but not future leave.

Your sick leave policy also has to follow the requirements of the FMLA (if your employees are covered by the Act), and it needs to be consistent with federal workplace anti-discrimination laws, such as the Americans with Disabilities Act (ADA). (See the U.S. Department of Labor, Wage and Hour Division or call 1-866-487-9243 for additional information on FMLA.  See the U.S. Equal Employment Opportunity Commission or call 1-800-669-4000 if you have questions on ADA.)

If an employer temporarily closes his or her place of business because of an influenza pandemic and chooses to layoff some but not all employees are there any federal laws that would govern this decision?

The federal laws prohibiting discrimination in the workplace on the basis of race, sex, age (40 and over), color, religion, national origin, or disability may apply.  (See the U.S. Equal Employment Opportunity Commission (EEOC) or call 1-800-669-4000 if you have questions.)  Other specific Federal laws that prohibit discrimination on these or additional bases may also govern if an employer is a Federal contractor or a recipient of Federal financial assistance.

Additionally, the Worker Adjustment and Retraining Notification (WARN) Act helps ensure advance notice in cases of qualified plant closings and mass layoffs.  For more information about the WARN Act see https://www.dol.gov/agencies/eta/layoffs/warn.

You may also not discriminate against an employee because the employee has requested or used qualifying FMLA leave.  (See the U.S. Department of Labor, Wage and Hour Division for additional information or call 1-866-487-9243 if you have questions.)

In addition, you may not discriminate against an employee because he or she is a past or present member of the United States uniformed service.  (See the U.S. Department of Labor, Veterans’ Employment and Training Service for additional information or call 1-866-889-5627 if you have questions.)

Some employees may not be able to come to work because they have to take care of sick family members. May an employer lay them off?

It depends.  If an employee is covered and eligible under the FMLA and is needed to care for a spouse, daughter, son, or parent who has a serious health condition, then the employee is entitled to up to 12 weeks of job-protected, unpaid leave during any 12-month period. Some states may have similar family leave laws.  In those situations, covered employers must comply with the federal or state provision that provides the greater benefit to their employees.  (See the U.S. Department of Labor, Wage and Hour Division for additional information or call 1-866-487-9243 if you have questions.)

In lieu of laying off employees in this situation, we would encourage you to consider other options such as telecommuting and to prepare a plan of action specific to your workplace.

What types of policy options do employers have for preventing abuse of leave?

Both the FMLA and the Americans with Disabilities Act affect the provision of leave.

Under the FMLA, employees seeking to use FMLA leave are required to provide 30-day advance notice of the need to take FMLA leave when the need is foreseeable and such notice is practicable.  In addition, employers may require employees to provide:

  • Medical certification supporting the need for leave due to a serious health condition affecting the employee or a spouse, son, daughter or parent, including periodic re-certification;
  • Second or third medical opinions (at the employer's expense);
  • Periodic reports during FMLA leave regarding the employee's status and intent to return to work; and
  • Consistent with a uniformly-applied policy or practice for similarly-situated employees, a fitness for duty certification. (Employers should be aware that fitness-for-duty certifications may be difficult to obtain during a pandemic.) (See also: “May an employer require an employee who is out sick with pandemic influenza to provide a doctor’s note, submit to a medical exam, or remain symptom-free for a specified amount of time before returning to work?”)

The FMLA also allows the employee to elect or the employer to require the substitution of paid sick and paid vacation/personal leave in some circumstances.  (See the U.S. Department of Labor Wage and Hour Division for additional information on the FMLA or call 1-866-487-9243 if you have questions.)

Under the Americans with Disabilities Act, qualified individuals with disabilities may be entitled to unscheduled leave, unpaid leave, or modifications to the employer sick leave policies as “reasonable accommodations.”  These are modifications or adjustments to jobs, work environments, or workplace policies that enable qualified employees with disabilities to perform the essential functions (i.e., fundamental duties) of their jobs and have equal opportunities to receive the benefits available to employees without disabilities.  (See the U.S. Equal Employment Opportunity Commission’s Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act for additional information.)

For further information about Coronavirus, please visit the HHS’s Centers for Disease Control and Prevention.

X.                Conclusion and the Future

All topics covered here are evolving in their content. As of this writing a federal national emergency has been declared in the United States. Such a declaration permits invocation of the Stafford Act (https://www.fema.gov/media-library/assets/documents/15271). The California Governor’s Emergency Order is a useful model of local entity response.  (See https://www.gov.ca.gov/2020/03/04/governor-newsom-declares-state-of-emergency-to-help-state-prepare-for-broader-spread-of-covid-19/).

The authors are tracking the above issues on an ongoing basis. Because human decisions involve our economy, we have prepared analyses on the application of force majeure to contractual relations. These resources are available upon request as well. For the duration of the present virus emergency our Atkinson, Andelson, Loya, Ruud & Romo remains fully able to respond to client needs and to facilitate that has implemented a remote work protocol for attorneys and support staff.  Robert Fried can be contacted at [email protected] or via text at 925-998-0742.

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