By Sara J. Ackermann and Mary Ellen Schill
March 11, 2020
Should you ban nonessential business travel? Can you prevent an employee from taking that cruise? What if an employee refuses to go home when she is sick? Here are some answers to those questions and more!
- What should employers do right now? On March 10, Jay Butler, Deputy Director of the Centers for Disease Control and Infection (CDC) participated in a webcast sponsored by the Society of Human Resource Management. He reiterated that one of the most important things employers can do, as stated on the CDC website, is to “actively encourage sick employees to stay home.” The CDC also recommends that you post the CDC posters (free on the website) that encourage good hygiene, you provide plenty of tissues and sanitizer, and you increase the frequency of routine cleaning.
- Should we implement a nonessential travel ban for our company? In considering a travel ban, employers should review the CDC’s risk assessment levels and other guidance on its website at https://www.cdc.gov/coronavirus/2019-ncov/travelers/index.html. As of March 11, 2020, the CDC recommends the following:
- All travelers should avoid nonessential travel to China, Iran, South Korea and Italy (Level 3 Travel Health Notice);
- Older travelers and those who have chronic medical conditions should avoid travel to Japan (Level 2 Travel Health Notice);
- Travelers should practice usual precautions if traveling to Hong Kong (Level 1 Travel Health Notice);
- All travelers should avoid cruise ship travel at this time.
Also, with respect to airline travel in general, the CDC states:
“Because of how air circulates and is filtered on airplanes, most viruses and other germs do not spread easily on airplanes. Although the risk of infection on an airplane is low, travelers should try to avoid contact with sick passengers and wash their hands often with soap and water for at least 20 seconds or use hand sanitizer that contain 60%–95% alcohol.”
- So…if the CDC isn’t recommending it, should we ban nonessential travel? Several large US companies have implemented nonessential travel bans. Whether you choose to do so will be based on many different factors, including but not limited to, your size, global footprint, industry, and frequency of employees engaging in business travel. If you choose not to ban travel or implement a partial ban, employees who are concerned about business travel should be encouraged to talk to management and/or Human Resources about those concerns.
- Spring break is upon us! What about employee personal travel? Employers may consider putting a policy in place that requires employees to report to management/Human Resources if they or a household member have travel plans that include a visit or layover in a Level 3 or Level 2 country, a cruise, or in places within the US where there has been a confirmed concentrated outbreak. Such a policy must be carefully drafted and consistently enforced to avoid discrimination claims.
- One of our employees reported they are not cancelling their spring break trip to Italy. Can we require him to stay home for 14 days upon his return before coming to work? Employers may consider putting a policy in place that requires employees to work from home for a period of 14 days if they or a household member have visited a Level 3 or Level 2 country, a place within the US where there has been a confirmed concentrated outbreak, or taken a cruise. Such a policy must be carefully drafted and consistently enforced to avoid discrimination claims.
- Do we need to pay employees who we require to stay home for 14 days upon return from a restricted area? Assuming the employee is not sick, employers may consider allowing employees (both nonexempt and exempt) to work from home during this time and be paid their normal wages/salary. However, if it is impossible for the employee to do their job from home, employers will have to consider whether employees will be allowed to use accrued paid leave, forced to use paid leave, take the leave unpaid, or provide a special “quarantine” paid leave during this time. Such a policy must be carefully drafted and consistently enforced to avoid discrimination claims. Also, keep in mind you can and should require non-exempt employees who work from home to record all working time so they are accurately paid.
- What if we have an employee who looks sick, is coughing, and refuses to stay home? Employers have an obligation under OSHA and other laws to provide a safe workplace. However, employers who in the past have had a culture of allowing employees to “tough it out” should consider circulating a new policy to employees that advises employees that things are changing and employees will be sent home who are sick. In addition, (by now you know what comes next) such a policy must be carefully drafted and consistently enforced to avoid discrimination claims.
- Should we require a doctor’s note before we allow that employee to return to work? The CDC’s advice is No. It states, “Do not require a healthcare provider’s note for employees who are sick with acute respiratory illness to validate their illness or to return to work, as healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely way.”
- What if we have an employee who refuses to come to the office and wants to work from home, despite the fact that no one here has been infected? Under OSHA, an employee may refuse to work when they feel they are in “imminent danger” which includes “threat of death or serious physical harm.” While every employer is different, unless there is a confirmed case or outbreak in your area, an employee will be unlikely to meet this burden.
- We sponsor a high deductible health plan so that our employees are able to take advantage of health savings accounts. We’ve read stories about the COVID-19 testing and treatment being expensive, and subject to deductibles in a HDHP. We don’t want to discourage our employees from getting tested or treated. Can we amend our health plan to cover testing and/or treatment first dollar or subject to a lower deductible? Yes, you can! The IRS just issued guidance that allows high deductible health plans to provide medical care services and items purchased related to the testing for and treatment of COVID-19 prior to the satisfaction of the applicable minimum deductible, and the plan will continue to be a HDHP. Check with your insurance carrier (or stop loss carrier if self-funded) to see if this change in plan design is an option for you.
- Where can I get more information? The CDC and State Department websites provide excellent information and can be found below. (Note the State Department has a very detailed travel advisory list by country that includes more than just COVID-19 related warnings.)
As always, contact your Ruder Ware employment law attorney if you have further questions or require any assistance in drafting policies regarding this issue.
The content in the following blog posts is based upon the state of the law at the time of its original publication. As legal developments change quickly, the content in these blog posts may not remain accurate as laws change over time. None of the information contained in these publications is intended as legal advice or opinion relative to specific matters, facts, situations, or issues. You should not act upon the information in these blog posts without discussing your specific situation with legal counsel.
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