Ashley Hager, Partner, Troutman Sanders
Seth Ford, Partner, Troutman Sanders
Emily Reber, Associate, Troutman Sanders
Tracey Diamond, Of Counsel, Pepper Hamilton
We are continuing our series of guidance on the new issues facing employers during the COVID-19 outbreak. In our last post, Coronavirus and OSHA: What Employers Need to Know, we addressed occupational safety considerations during the coronavirus pandemic. This post addresses questions employers may have about sending employees home and implementing a remote work policy.
Sending Employees Home
Employees with COVID-19 symptoms. An employer may send an employee home (voluntarily or involuntarily) who has or is exhibiting symptoms of COVID-19. In response to the novel coronavirus outbreak, the EEOC has cited to its guidance regarding the 2009 pandemic H1N1 flu guidance, which states that advising workers with symptoms to go home either (a) is not a disability-related action if the illness is akin to seasonal influenza or (b) is permitted under the Americans with Disabilities Act if the illness is serious enough to pose a direct threat to the employee or coworkers. The CDC’s guidance likewise advises that employees with symptoms of acute respiratory illness and a fever should stay home. Employers should apply this type of policy uniformly and in a non-discriminatory manner. All information about an employee’s illness should be maintained as a confidential medical record in compliance with the ADA.
Employees without symptoms. An employer may also send an asymptomatic employee home, or require the employee to work from home, if the employee has been in close contact with someone who has COVID-19. CDC guidance suggests sending asymptomatic employees home to self-quarantine for 14 days if they: (1) have close contact with a symptomatic individual or someone who has tested positive for the virus, (2) sat on an aircraft within 6 feet (two airline seats) of a symptomatic individual or someone has tested positive for the virus, or (3) lives in the same household as, is an intimate partner of, or is caring for a symptomatic individual, or someone who has tested positive for the virus, at home. In addition, nonessential businesses have been closed in certain areas of the country pursuant to government order.
An employer may also send an asymptomatic employee home, or require the employee to work from home, if the employee has recently returned from travel to certain areas with “widespread sustained” transmission (denoted by a Level 3 Travel Health Notice).
In order to prevent discrimination in the workplace, employers should use and uniformly apply the CDC guidance to determine the risk posed by employees in the workplace. Employers considering action beyond the guidance provided by the CDC may want to consult with a Troutman Sanders or Pepper Hamilton employment attorney before implementing such changes.
Remote Work Policies
As long as an employee’s duties allow telework, an employer may require an asymptomatic individual with no known exposure to work from home for a certain period of time as a preventative or precautionary measure. The Department of Labor recently reiterated that requiring or encouraging employees to work remotely can be a useful infection-control strategy and can also be appropriate as an ADA accommodation. Employers considering a telework or remote work policy should ensure that employees are not being selected for telework or to continue reporting to the workplace on any basis prohibited by EEOC laws.
Remote Work Policy. Some employers already have a remote work policy in place, which should be reviewed and updated as it relates to the coronavirus outbreak. If your company is implementing a telework system for the first time, you should take the time to develop a remote work policy. There are several points to consider to ensure a smooth transition, and you may wish to consult with an employment attorney for assistance in drafting or review of your remote work policy. Considerations should include:
- Will workers be encouraged to work from home or barred from coming in to work?
- Will there be exemptions for essential personnel that need to be at the workplace?
- Will teleworkers need to be available at all times during working hours, or will remote meetings and appointments be scheduled ahead of time?
- Will you prohibit or restrict the size of in-person meetings of employees?
- Will you prohibit or restrict the size of in-person meetings between employees and third parties?
- Are employees aware of security requirements in place to prevent data breaches or other loss?
- Are there any confidential or privileged company documents that cannot be taken from the workplace?
A remote work policy will also want to include a mechanism for tracking time worked and overtime for non-exempt employees, as well as meal and rest breaks in states where they are mandated. In addition, employers will want to ensure that employees have the proper equipment in place to telework and set performance expectations. Finally, employers should make sure they are complying with state law requirements with regard to reimbursement of business expenses incurred by workers who are working remotely.
Stay tuned for additional insights in the next post in our coronavirus series. In the meantime, visit the Pepper Hamilton LLP / Troutman Sanders LLP COVID-19 Resource Center for COVID-19 news and developments, recommendations from leading health organizations, and tools that businesses can use free of charge. Please reach out to members of the COVID-19 Task Force of Troutman Sanders and Pepper Hamilton, or an attorney with whom you work, for guidance about COVID-19 and sending employees home and a remote work policy specific to your workplace.