- Special Counsel
Since the first case of the Novel Coronavirus (COVID-19) was reported on January 21, 2020, people across the country have been faced with more questions than answers. With no known vaccine or treatment for the virus, and with other countries seeing COVID-19 spread at an alarming rate, it is not surprising that some degree of panic has begun to develop. While there are no known cases in West Virginia at the time of this posting, government agencies and health care providers across the state are working to prepare for the inevitable spread of COVID-19 into the Mountain State.
Meanwhile, the Bowles Rice Health Care and Labor & Employment groups have begun fielding call from hospitals, health centers and private medical practices regarding the various legal issues that necessarily surround these preparations. In today’s first post in a two-part West Virginia Health Care Law blog series, I will address some of the employment law questions relating to COVID-19. While these issues will be important for any employer to consider, the risks associated with COVID-19 will be greater for those treating infected patients than for employees working in non-health care settings.
- Am I allowed to track whether any of my employees or their family members have contracted COVID-19?
Most likely yes. While employers generally cannot require employees to report a disability or an illness that others are not at risk of catching, the Americans with Disabilities Act does allow for employers to mandate that its employees disclose whether they or their family members have been exposed to an infectious disease, such as COVID-19, during a national pandemic. While COVID-19 is still considered an outbreak (and not a pandemic) at this time, I would advise my clients to work through these issues as though COVID-19 eventually will qualify for “pandemic” treatment.
- My employee has already missed a lot of work. If he/she comes down with COVID-19, can I terminate the employee?
Generally, in West Virginia, unless there is an employment agreement or contract governing the employment relationship, an employee’s employment is considered “at-will,” meaning you can terminate the employee at any time and for any reason, so long as the reason is not discriminatory. If the employee is in violation of the employer’s policies relating to attendance, then the employer may be allowed to terminate an employee who misses additional time due to an illness.
However, if an employee can prove he/she contracted COVID-19 as a result of occupational exposure – meaning the illness “arose out of and in the course of employment” – the employee may be entitled to receive Workers’ Compensation benefits, including temporary total disability benefits in lieu of wages, reasonable and necessary medical treatment and an award for any resulting permanent disability, such as reduced respiratory capacity. Under West Virginia law, it may be considered a discriminatory employment practice to terminate an employee who is on, or who is eligible for, temporary total disability.
Moreover, larger employers will have to consider whether the Family and Medical Leave Act (FMLA) protects the employee in the case of COVID-19. When applicable, FMLA states that covered employers may not fire employees for missing up to 12 weeks or less of work due to serious illness. While it is very rare for courts to prevent employers from firing employees due to more common, acute illnesses, such as the flu, I am confident that COVID-19 will qualify as a serious health condition.
Employers will need to analyze cases of COVID-19 by considering whether (i) the illness prevents the employee from being able to complete essential functions of his/her job for four or more consecutive calendar days; (ii) it causes the employee to visit a health care provider at least twice (in person and not by telephone); and (iii) it requires the employee to receive continued treatment. Insofar as the CDC is recommending the removal of such individuals from the workplace during the incubation period of the disease (up to 14 days) to prevent further transmission of the disease, the employer may have to consider placing the employee on an FMLA leave, even if the employee voices a desire to continue working. Similarly, under FMLA, if an employee’s parent, spouse or child acquires COVID-19, it likely would constitute a qualifying event entitling the employee, with physician’s documentation, to utilize leave time to care for his/her immediate family member.
- If my employee (or one of his/her family members) catches COVID-19, can I force my employee to stay home from work?
Yes. Under the Americans with Disabilities Act (ADA), an employer may force an employee to stay home if the employer believes that the employee will pose a direct threat to the workplace due to having, or being exposed to, a serious infectious disease, even if the employee asserts that he/she is willing and able to work. Particularly in a health care setting, where an employee could have access to patients with compromised immune systems, a patient infected with COVID-19 could be considered a direct threat to patients and co-workers. While employees may wear personal protective equipment to lessen the risk of transmitting disease, sometimes the best way to prevent the threat of exposure is to require an employee to stay home from work.
Employers should note that, in the event the employer requires an employee who does not have an infectious disease to stay home from work out of an abundance of caution, this time off work cannot be charged against the employee’s 12-week entitlement under the FMLA. As a rule, employers are not allowed to charge employees with FMLA leave when that leave is required by the employer.
Employers also should be aware that, under the ADA, if there is an outbreak of a pandemic illness, employers may require employees to work from home. However, employers should be aware that, by allowing and/or encouraging remote work, employers may later face resistance if the employer denies a request for reasonable accommodation that involves working from home. Obviously, customer-service-oriented businesses, like health care, will not be able to operate with all their employees at home. Other businesses may require employees to interface personally with customers or clients, and they will want to avoid setting any precedent that makes it more difficult to deny other requests in the future without being accused of violating the ADA or similar laws. If an employer elects to require its employees to work from home, care should be taken to document the unique circumstances relating to the COVID-19 outbreak that may not be applicable to other health conditions.
- Can I adopt infection control policies and force my employees to follow them to limit the spread of COVID-19?
Absolutely. Within the health care industry, requiring infection control practices is standard practice. For other businesses, adopting infection control practices is a good way to try to avoid falling prey to a disease pandemic, and it does not violate the ADA.
In a health care setting, common infection control procedures include (i) the elimination of potential exposures through the deferral of ill patients and source control through the masking of coughing patients; (ii) proper administrative controls, including sick leave policies and vaccinations (where applicable); and (iii) the use of personal protective equipment (PPE) for exposures that cannot otherwise be eliminated or controlled. PPE may include gloves, surgical facemasks, respirators, protective eyewear,and protective clothing (disposable scrubs and gowns). Employers are permitted to require employees to comply with policies mandating the use of PPE in combating bloodborne pathogens and other communicable diseases like COVID-19.
Employers should note that, under the Occupational Safety and Health Act (OSHA), they have a duty to provide a safe workplace, which includes protecting employees from recognized hazards that may cause serious injury or death. Given that OSHA does not have a specific regulation which deals with infectious diseases, the Occupational Safety and Health Administration will hold employers to this general duty to provide a safe workplace. To determine the scope of the employer’s obligation, OSHA is empowered to utilize outside nationally recognized consensus standards or other authoritative sources, including but not limited to guidance issued by the Centers for Disease Control and Prevention (CDC), the National Institute for Occupational Safety and Health (NIOSH), and the World Health Organization (WHO).
Given the likelihood of health care workers being exposed to the virus through their work, OSHA likely will require employers to have procedures to protect employees. At a minimum, it seems reasonable to expect that OSHA will require the use of PPE. Once the employer has determined that PPE is required for the safety of its employees, it is the employer’s responsibility to ensure that PPE is provided. Further, if an employee needs a reasonable accommodation to use certain PPE (such as latex-free gloves), the employer must make that accommodation for the employee.
When trying to navigate all these complicated laws and regulations, it is very easy for employers to feel confused and overwhelmed. In those instances, it is important to seek experienced legal advice, and Bowles Rice maintains practice-specific Health Care and Labor & Employment groups that can assist health care organizations and other employers with making these difficult decisions.