Sick Employee... Then What?

The Centers for Disease Control and Prevention (CDC) has advised employers that employees who appear to have symptoms of COVID-19 (e.g., cough, shortness of breath) should be separated from other employees and sent home immediately. If the employee feels well enough to work, consider whether they can effectively telecommute. Note: Non-exempt employees may be entitled to a few extra hours of pay if you’re in a state with reporting time pay, but this cost will be well worth it to maintain the safety of the workplace. Yes, you can send them home.

The Americans with Disabilities Act (ADA) places restrictions on the inquiries that an employer can make into an employee’s medical status, and the EEOC considers taking an employee’s temperature to be a “medical examination” under the ADA. The ADA prohibits employers from requiring medical examinations and making disability-related inquiries unless (1) the employer can show that the inquiry or exam is job-related and consistent with business necessity, or (2) the employer has a reasonable belief that the employee poses a “direct threat” to the health or safety of the individual or others that cannot otherwise be eliminated or reduced by reasonable accommodation. Taking an employee’s temperature may be unlawful if is not job-related and consistent with business necessity. In short, it's not advisable to bring your thermometer to work.

Additionally, employers should ask employees who live with someone confirmed to have COVID-19 to notify a designated HR representative or their supervisor as soon as possible. The employer and employee should then refer to CDC guidance to assess risk and determine next steps—see Tables 1 and 2 in the CDC’s Interim US Guidance for Risk Assessment and Public Health Management.

If an employee has already opted to stay at home, you can legally ask them about their symptoms under strict cautions. Generally, employers shouldn’t ask about an employee’s symptoms, as that could be construed as a disability-related inquiry. Under the circumstances, however—and in line with an employer’s responsibility to provide a safe workplace—we recommend asking specifically about the symptoms of COVID-19 and making it clear that this is the extent of the information you’re looking for.

Whether FMLA or a state family and medical leave or insurance program will apply to a particular case of COVID-19 will be fact-specific. Even if FMLA or state leaves do not apply, though, we would recommend that employers treat leaves related to this illness as job-protected, both for legal reasons and because it’s the right thing to do. If you’re in a state with a sick leave law, that will apply if the employee is sick, a family member is sick, or (in many states) when an employee is told to stay home by a public health authority. We recommend following your current FMLA policy regarding the request of doctor's notes and the 12 month minimum. That said, it is entirely up to the employer whether they waive the doctor's note or 12 month requirement. Learn more about expanded FMLA (FFCRA) here.

What about short term disability? Does it apply to coronavirus? Very likely, if the person is debilitated by being infected by the virus. The employee/patient would still need their physician to fill out the necessary paperwork to confirm they are unable to perform the duties of their job due to illness. If they are taking care of a family member (as FMLA allows), then STD would not apply. If they are simply quarantined due to contact with an infected person, STD would likely not apply because they are not directly ill. That said, all carriers we've spoken with encourage employees to review potential claims with their carrier, as each claim truly needs to be examined on a case by case basis. The carriers understand the coronavirus pandemic creates stressful uncertainty, and are willing to help in any way they can.