Worker Safety During a Pandemic: Handling Employees’ Fear of Exposure and Employees with COVID-19

(Last updated April 6, 2020)

The COVID-19 pandemic has resulted in unprecedented challenges for employers.  While many retail establishments and other businesses have voluntarily or involuntarily shut down and many other organizations are allowing employees to work remotely, others are attempting to remain operating at full or reduced capacity.  Those who are maintaining on-site operations may find that some employees refuse to come to work because of COVID-19 concerns.  This is particularly problematic for employers in essential industries, such as groceries and health care.  Conversely, employers who are allowing workers on premises must face the real concern that one or more of their employees may fall ill, making them a danger to everyone else who is working with or near them.  Employers should be prepared to deal with both situations should they arise. 

We are all navigating this new world and how it will affect employment practices. The following is a discussion of these issues with the understanding that we are, to some degree, speculating about how governmental agencies may review specific situations.  The best course is to do whatever is necessary to keep employees safe, which will require employers to listen to their employees’ concerns and exercise flexibility when dealing with issues such as leave and teleworking.

Dealing with an Employee Who Refuses to Come to Work

Virginia, like most states, recognizes “at will” employment.  Under this system, barring a contract that says otherwise, an employer may terminate an employee for any reason or no reason at all, if the termination does not violate some law.  Currently, there is no law preventing most employers from remaining operational if they meet certain safety requirements.  If a government-ordered quarantine were to go into effect, then the issue would be moot.

That does not mean, however, that employers may do whatever they want if there is no quarantine.  All employers are subject to the Occupational Safety and Health Act, which states that an employee may refuse to work if he or she believes they are in “imminent danger.”  The Act defines “imminent danger” as “conditions or practices in any place of employment which are such that a danger exists which could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.”  The Occupational Safety and Health Administration (“OSHA”), which enforces the Act, has interpreted this to mean “[t]here must be a threat of death or serious physical harm” or “a reasonable expectation that toxic substances or other health hazards are present and exposure to them will shorten life or cause substantial reduction in physical or mental efficiency.”  An example of imminent harm might be working in a medical environment without protective equipment.

The average workplace, however, does not meet the “imminent danger” standard without special circumstances.  In a recently issued guidance, OSHA rated most workplaces as lower risk (caution) or medium risk regarding COVID-19.  The latter category includes employees who work with the general public in an area where there is ongoing community transmission of the disease.  Employers should still tread with caution when dealing with employees who will not work during this pandemic.  Certain individuals with chronic health conditions, such as heart disease, diabetes, or asthma, are more susceptible to the virus and are more likely to have serious health issues if they do fall ill.  Conceivably, such individuals, and employees working in higher-risk occupations, could make a claim that forcing them to work violates OSHA mandates.  Employers should take the time to listen to employees’ specific concerns and try to work with higher risk employees to minimize exposure.  Where possible, employers should consider allowing employees to work remotely.  If this is not feasible, employers should do what they can to make the workplace as safe as possible by following health guidelines established by the CDC.

Employers should also be aware of the provisions in the recently-enacted Families First Coronavirus Relief Act (“FFCRA”).  Part of that legislation, the Emergency Paid Sick Leave Act, requires employers to provide up to two weeks of paid sick leave for employees who are unable to work or telework due to a government-imposed quarantine or “[t]he employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.” If this occurs, the employer can require the employee to provide the name and contact information of the health care provider, the reason why they are being advised to self-quarantine, and the dates of the expected leave.

If an employee is refusing to come to work because of fear of the virus, then the employer must assess the situation to determine if the employee has a reasonable fear of imminent danger or if they have been instructed by a health care provider to self-quarantine.  If not, and the employee is not taking time off for a FMLA or FFCRA-qualifying reason, then there is no right to paid leave.  The employer may offer unpaid leave, require the employee to take available vacation leave, or, in certain situations, discipline the employee if he or she refuses to return to work.  However, the employer should speak with legal counsel before taking any action, particularly if the employee is in a high-risk group.

In any event, employers should be careful to treat any COVID-19 related health matters as confidential, just as they would any medical information covered by HIPAA and the ADA.  They should also be aware that the Occupational Safety and Health Act prohibits employers from retaliating against any worker who raises concerns about safety or health conditions.

Dealing with an Employee Who May Have COVID-19 in the Workplace

On the other side of the coin, employers should be cautious when dealing with employees who may have COVID-19.  OSHA requires employers to furnish their employees with “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”  An employee displaying the symptoms of COVID-19 could certainly be viewed as a “recognized hazard,” although it should be noted that COVID-19 shares the same symptoms as other common illnesses.

The Equal Employment Opportunity Commission (“EEOC”) has issued new guidance on how COVID-19 affects employment actions under the Americans with Disabilities Act (“ADA”).  The EEOC clarified that an employer can require employees to leave the workplace if they have COVID-19 or display the symptoms of the illness. Generally, employers are prohibited by the ADA from taking an employee’s temperature, but the EEOC has confirmed that during a publicly declared pandemic emergency, such as COVID-19, employers are permitted to require employees to have their temperature taken as long as the employer treats the findings as confidential under the ADA.  If an employer decides to take its employees’ temperature, it should only be done as part of a comprehensive COVID-19 response plan that includes such things as educating employees regarding COVID-19 symptoms and screening interviews to determine other risk factors, limitations on non-essential travel, and encouragement to work from home. If a landlord or other entity seeks information about employees with COVID-19, employers should defer to public health authorities when it comes to releasing any information about employees who test positive for COVID-19.

OSHA and the CDC have issued a joint guidance for employers that explains how to maintain a safe work environment.  One of the suggestions is that workers displaying symptoms of COVID-19 should be immediately isolated from other employees in a closed room until they can be removed from the workplace.  The guidance also suggests that employers strongly encourage employees who are feeling ill to stay home.  Any employee who has COVID-19 and any employees who worked closely with that employee should be sent home for at least 14 days.

The governmental response to COVID-19 changes daily.  Employers faced with COVID-19-related matters that may affect their employees should seek the advice of counsel before making any decision that may have legal repercussions.

Jeff Wilson is a Pender & Coward attorney focusing his practice on employment law matters, including counseling and business litigation.