The novel coronavirus (COVID-19) has now spread worldwide. Employers must take steps now to prepare for both practical and legal workplace issues. Companies should prepare for a potential community outbreak and should consider COVID-19 prevention, as well as compliance with state and federal leave laws and employee compensation while on leave.

The CDC ‘s current recommendations for employers include:

  • Increased sanitation in the workplace including frequent cleaning of commonly touched surfaces in the workplace; think telephones, keyboards, computer mouses, countertops and doorknobs. Do not forget light switch plates.
  • Require symptomatic employees (i.e. cough, shortness of breath) to stay home at least until the 14-day incubation period of COVID-19 has passed. Consider requiring employees who are able to work remotely to work from home.
  • Require employees who have stayed home for several days with respiratory symptoms to provide a doctor’s note clearing them to return to the workplace. Keep in mind however employees may have limited access to healthcare providers in the event of a community outbreak. Arizona’s paid sick leave law allows employers to require a physician’s return to work notice after three consecutive days on paid sick leave.
  • Remind employees about cough and sneeze etiquette and increased hygiene measures.
  • Provide tissues, handwipes, hand sanitizer that contains at least 60-95% alcohol, gloves, and no-touch disposal receptacles for use by employees.
  • Practice social distancing in the workplace including minimizing close and large gatherings and consider moving workstations further apart. The CDC currently recommends a distance of at least six feet from asymptomatic individual.
  • Issue a company-wide statement providing employees with instructions and resources available from the CDC and a copy of the COVID-19 Coronavirus notice from the CDC.

Consider restricting travel. Consider requiring employees returning from high-risk locations to self-quarantine and work from home for a 14-day incubation period.

Employers must consider applicable state and federal leave laws, including Arizona’s paid sick leave law, the Fair Wages and Healthy Families Act, which applies to all Arizona employers and to all Arizona employees. At a minimum, all Arizona companies must provide all employees (including part time or temporary employees) paid sick leave in compliance with this Act to care for themselves or a sick family member in the event of an illness, or if their workplace or a child’s school or day care is closed due to a public health emergency. During this outbreak, companies should be flexible in allowing employees’ use of paid sick leave and if available, paid vacation or PTO. Requiring exposed or infected employees to report to the workplace is a recipe for disaster.

Larger employers may be subject to additional leave laws. The FMLA applies to employers with 50 or more employees. An employee who is experiencing a serious health condition or who requires time to care for a family member with such a condition may be entitled to take unpaid leave under the federal Family and Medical Leave Act (FMLA).

The Americans with Disabilities Act (ADA) applies to employers with 15 or more employees. Employees experiencing symptoms may constitute a qualifying disability, triggering eligibility for leave as a reasonable accommodation under the ADA. Keep in mind, however, neither FMLA nor reasonable accommodation leave under the ADA are required as prophylactic measures to avoid getting sick.

Not all medical leaves must be paid, and employers must consider whether employees on a voluntary or involuntary (company mandated) leave must be compensated.

Arizona’s paid sick leave law (PSL) requires employers with less than 15 employees provide 24 annually of paid sick leave, while employers with more than 15 employees must provide 40 hours annually of paid sick leave.  An employee may use PSL to care for themselves or family members or, in the event of a public health emergency, where the employer, schools, or places of care are closed by order of a public official.

Requiring an employee who is not sick to take unpaid time off or to use available paid sick leave, such as when requiring self-quarantine following high-risk travel or exposure, may violate state paid sick leave laws.  Instead, employers may consider requiring employees who are not symptomatic to work from home during such mandated time away from the workplace.

Alternatively, employers may require employees use paid vacation time during such time off, provided of course the employee is not actually performing any work-related job duties during the mandated time off.  If the employee is classified as non-exempt, (paid hourly) mandated time off can usually be unpaid.  Exempt employees, however, may still have to be paid. If an exempt employee works at all during the workweek (for example, checks emails or answers phone calls or text messages while away from the workplace– or works one of five days), he is generally entitled to his salary for the week. An employer can dock the pay of an exempt employee in limited circumstances.

The lawyers at Faulkner Law Offices, PLLC have decades of experience and can help employers and employees maneuver through these challenging times.