As everyone surely knows as this point, the Coronavirus Disease (COVID-19) could potentially create challenges for employers in the near term.  Several federal agencies including the Centers for Disease Control (CDC) and the DOL’s Occupational Safety and Health Administration (OSHA) have begun issuing guidance for employers. 

Specifically, the CDC provides Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus.  This guidance sets forth recommended strategies for employers to use now, such as encouraging sick employees to stay home, respiratory etiquette and hand hygiene by all employees, environmental cleaning, and guidelines when employees are required to travel.  OSHA likewise provides some workplace considerations on its website.

Employment Law Protections

The Equal Employment Opportunity Commission issued a news release directing employers to their previously issued guidance relating to pandemic flu situations.  It is very important to remember that discrimination laws continue to apply.  In particular, keep in mind national origin and disability discrimination among others.

Leaves of Absence

As a reminder for employers subject to federal Family and Medical Leave Act (private sector employers who employ 50 or more employees and public agencies without regard to the number of employees), it is important to note that while the common flu does not always constitute a serious health condition unless complications arise, it certainly could.  Several years ago, the DOL’s Wage and Hour Division issued a set of FAQs addressing pandemic flu as it relates to the FMLA.

Under the FMLA, a serious health condition is defined as an illness, injury, impairment, or physical or mental condition that involves:

• Inpatient care in a health facility, including any resulting incapacity that causes one to be unable to attend school, work, or other regular daily activities.
• Being under the continuous care of a health care provider for one or more of the following reasons:
  • Inability to work for 3 or more consecutive calendar days;
  • Pregnancy or prenatal care;
  • A chronic condition; or
  • A period of the incapacity which is permanent or long term, for which treatment may be ineffective.

To be eligible for FMLA benefits, the individual must have worked at least 12 months for the employer, attained at least 1,250 hours of service during the 12 months immediately preceding the leave, and worked at a worksite subject to the law.  Such eligible employee would be entitled to up to 12 weeks of FMLA leave for the employee’s own, or his/her family member’s care or treatment of a serious health condition. 

An employer faced with the possibility of an employee who could have been infected with coronavirus or who may need to care for family member, should assess the situation, and if it is appears to be a serious health condition, provide the Notice of Eligibility and Rights & Responsibilities to the employee. This notice must be provided within 5 business days following receipt of the employee’s notification to the employer of the need for FMLA leave.  If an employer has enough information to determine whether leave is being taken for a FMLA-qualifying reason, it must then notify the employee that the leave is designated and counted as FMLA leave.  The model Designation Form can be used for this purpose; once completed, it must be provided to the employee within 5 business days.

Employers should also be aware that certain state and local laws provide for leave of absence in the event of an employee or his/her family member’s serious health condition. 

Further, employers should be familiar with their internal leave policies or other governing obligations such as collective bargaining agreements or employment contracts, to ensure they know how to properly handle leave requests.  For example, to encourage employees to stay home when appropriate, consider revising internal policy provisions that might inhibit this action, such as an attendance reward policy.

Medical Privacy Issues

It is important to remember than both federal and state privacy rules must be considered.  For HIPAA privacy purposes, the HHS Office of Civil Rights provides guidance to remind HIPAA covered entities (health care providers, health plans and health care clearinghouses) and business associates of their obligations to protect the privacy of patient information.  Also keep in mind that laws such as the ADA and FMLA contain privacy and confidentiality standards that must be followed.  As a general comment, medical information of any sort should be kept in a separate and protected file.

Health Insurance Coverage

Be aware of what your health plan provides with regard to testing for the virus.  By way of example, the California Insurance Department issued a bulletin directing insurers to immediately waive the imposition of cost-sharing obligations under insured health plans, including co-pays, deductibles, and coinsurance, for medically necessary screening and testing for COVID-19, as well as any associated hospital, emergency department, urgent care, and provider office visits when the purpose of the visit is for COVID-19 screening and/or testing.  Other states may or may not follow this lead, but watch for announcements or developments from insurers with regard to changes in coverage for COVID-19 testing; and if changes occur, communicate such changes to plan participants.

In closing, given the potential challenges associated with the coronavirus, employers should consult with their legal counsel, as appropriate.