By Dave DeWitte
dave@corridorbusiness.com
Employers are digging in for a multitude of HR issues arising with the spread of the novel coronavirus, from how to minimize the spread of the infection, to addressing employees staying away from work because of worries about contracting the highly contagious bug.
Interest in the topic is so high that employer benefits companies have been drawing big audiences for webinars designed to provide timely guidance. A March 6 webinar for employers by Cedar Rapids-based North Risk Partners became one of its most-viewed ever, attracting nearly 350 clients.
“By now, everybody knows it is a workforce concern,” said HR consultant Mike Bourgon of Synergy Human Resources, who helps staff a HR and legal hotline for North Risk.
The concern is greatest in certain occupational fields that include health care, banking, sanitation, airports, laboratories and border patrol – so great that Mr. Bourgon advised employers in those areas to seek advice from their own industry associations.
“Here’s the bottom line from OSHA [the Occupational Safety and Health Administration]: They can cite an employer for exposing the workforce to the coronavirus without protective measures, so you want to be careful of that if you’re covered by OSHA,” he said.
Business travel has raised a multitude of questions; a common one of which is “should we bring our expats home?” said Davis Bae, an employment lawyer with Fisher Phillips, during a webcast shared by TrueNorth Companies with its clients. He said many factors weigh into that decision, including the reality it might not even be possible to bring them home from certain locations given travel restrictions related to the coronavirus.
Still, most employees are not at such great risk, and experts urge employers to calm their fears, keep them informed and have personnel policies that ensure their actions are legal, non-discriminatory and as fair as possible.
“We have been, at least at Synergy, overrun with panic calls from different NRP [North Risk Partners] business clients,” said Mr. Bourgon, “mostly because they, in turn, are getting hammered by their employees, especially customer-facing employees.”
Policies should be shaped to deal with the four main categories of employee issues they are likely to confront, according to Mr. Bourgon:
• What do you do if an employee has the virus?
• What do you do if the employee shows up exhibiting symptoms?
• What do you do if an employee is not exhibiting symptoms but has recently visited a country that is impacted?
• What do you do with an employee who either traveled to a state in the U.S. that hasn’t been impacted or a country that hasn’t had impact?
Some of the answers seem obvious, others less so.
“If somebody is infected – whether they’re exhibiting symptoms or not – I think they pose a threat to the workforce,” Mr. Bourgon said. “I think they put them out on a 14-day leave, and I think it’s paid, and they return with a doctor’s note.”
On the other hand, if an employee says they’re fearful and want to work from home, even though there’s no imminent threat in the workplace, that’s more of a question for the individual employer, based on their policies and needs.
Communicate with employees
The World Health Organization is urging companies to communicate with employees about coronavirus to help minimize the spread of the disease, including information about how to reduce the risk of contracting it and how to identify the symptoms.
Mr. Bourgon advises HR professionals to update employees frequently, utilizing only authoritative sources: the Centers for Disease Control and Prevention, the World Health Organization and OSHA. He said companies should always make the source clear to employees, and never become the source themselves.
The CDC’s website, in particular, includes answers to a broad range of questions about the coronavirus, from recognizing symptoms and understanding quarantine requirements to health issues regarding funerals and animals. It even discusses how to address social stigmas related to the coronavirus.
Manage travel-related contraction risk
“If somebody’s returning from an impacted location, the CDC recommendation is that they ought to stay out of work for 14 days,” Mr. Bourgon said.
Some employers require returning employees to produce a note from a doctor clearing them as healthy to return to work, but that can also trigger legal implications, according to Nan Sato, an international attorney with Fisher Phillips.
The Americans with Disabilities Act (ADA) requires a valid business reason to require employees to undergo a medical exam, Ms. Sato said, and, in cases of travel to seriously affected countries, that’s not usually a problem. There is another question, however.
”Practically speaking, it’s not clear whether this is very effective,” Ms. Sato said. That’s because in many cases, the initial screening test for coronavirus comes back negative, but a subsequent second or third test may come up positive.
Another option mentioned by Mr. Bourgon is to simply ask employees who’ve traveled to impacted locations to monitor themselves for symptoms, and consider being evaluated by a health care provider to confirm they are non-infectious.
Regarding business travel policies, Mr. Bourgon said he wouldn’t let anybody go to an impacted area, and suggested employers make it clear that employees are required to inform the company of personal travel to those areas. Ms. Sato said whether the employee has health concerns that could pose additional risk, including pregnancy, should also be discussed.
“They should be informed that they could be quarantined by the government when they return, and if they’re going to a different country, there might not be the same level of medical services available,” she said.
Compensation for the quarantined
With the possibility that some workers may be quarantined for 14 days, Mr. Bourgon discussed a number of scenarios regarding whether employers should compensate those individuals or not. He generally favored paying employees who are staying away from work to comply with an employer’s request for a 14-day quarantine and producing a doctor’s release before returning to work after coronavirus exposure.
Some sources indicate that employers are only required to do so for supervisory or exempt employees as defined by the Fair Labor Standard Act, but Mr. Bourgon said he recommends treating everybody the same to avoid claims of discrimination and creating ill will among employees.
Employees could also have obligations to pay wages to employees who aren’t quarantined themselves, but who have to stay home to care for an immediate family member felled by the coronavirus under the federal Family and Medical Leave Act, Mr. Bourgon said.
In cases where there’s a union contract, Mr. Bourgon said the contract should be consulted first to determine the employer’s pay obligations.
HR professionals on the webinar were curious whether employees should be required to use paid time off or vacation time before receiving pay for quarantine periods, and whether workers compensation could provide pay during their time off.
Mr. Bourgon’s answers were more nuanced, indicating it could depend on the company’s internal policies, but suggested workers comp could come into play if there’s a reason to believe the employee contracted coronavirus through work. If there’s a possibility those circumstances exist, he suggested employers stay on the safe side and file a Form 100 to report an employee claim of injury or illness with their carrier.
“Workman’s comp carriers are beefing up for the onslaught of these kinds of calls that they’re gonna get,” he said.
Accommodations for the infected (or fearful)
If employees become infected with the coronavirus, the employer may have responsibilities to help them keep working if they are able and so choose, Mr. Bourgon said.
“Qualified employees under ADA have protection, such as [those with] chronic breathing problems,” he said. “Are employees allowed to have an accommodation to leave work and/or work remotely? I think it’s pretty safe to say that employees who contract the virus have to be treated the same as non-infected employees as long as the affected employees can perform their essential job functions.”
The answers are somewhat trickier when it comes to workers who ask to be exempted from their usual duties because they have fears of contracting coronavirus. One of the big questions is whether the employee is actually at significant additional risk of contracting COVID-19 through their work.
“I don’t think you have to pay them, and if you discipline them, you have an employee relations issue,” Mr. Bourgon said, adding that it’s not a simple question to answer. “It’s not illegal. I don’t think it’s wrong if someone’s just afraid to make them use PTO or vacation, or just to, give them some attendance points.”
If an employee declines a travel assignment due to risk of infections, they may also have legal rights. OSHA generally does not allow an employee to refuse a work assignment unless it involves a hazard that a reasonable person would recognize, Ms. Sato said. Travel to an area where the coronavirus is spreading quickly would probably meet that test, she said.
Since the webinar, many employers have rolled out work-from-home policies to reduce the spread of the virus. Principal Financial Group and Nationwide Insurance are among the larger Iowa employers who’ve announced flexible work arrangements that will enable many of their employees to work from home during the outbreak.
While there’s plenty of advice about reducing transmission risk, there is still much that is not known about COVID-19, so the best advice of all may be to keep up with developments.
“The problem is, it is morphing,” Mr. Bae said. “The level at which we understand the disease constantly changes.” CBJ
