Diverse Production Workers Wearing Masks During COVID.jpeg

COVID-19 (CORONAVIRUS) FAQ & INFORMATION

Navigating uncertainty & demand volatility

1. What is COVID-19 (Coronavirus)?

COVID-19 is a contagious respiratory virus that originated in Wuhan, China. It is suspected that it is transmitted through coughing and sneezing of infected individuals.

2. What are the symptoms?

The following symptoms may appear 2-14 days after exposure.
- Fever
- Cough
- Shortness of breath – difficulty breathing

3. Can I require workers to seek medical attention and/or a COVID-19 test if I believe they are showing virus symptoms? Can a worker be terminated or dismissed if they refuse to do so?

No. Employers cannot force workers to seek medical attention or obtain a COVID-19 test, although they can encourage them to do so. They can, however, require workers to demonstrate fitness for duty as a condition of returning to work. This could include measures such as imposing a 14-day self-quarantine on a worker who has displayed symptoms.

4. If a worker is sent home to quarantine, can I require a medical release or doctor’s note before permitting them to return to work?

Yes. However, one should keep in mind that obtaining a note may be difficult at this time depending on how overwhelmed the healthcare system is in the local area. Thus, flexibility may be required on a case-by-case basis.

5. Can I refuse to accept a worker that has one or some virus symptoms?

Yes. A worker may be sent home if he or she exhibits symptoms of COVID-19.

6. If a worker contracts the COVID-19 virus while on assignment, must I place a worker back on assignment after a quarantine and/or recovery period?

If the employee is eligible for leave under the Family and Medical Leave Act (or state equivalent), the employee would be entitled to reinstatement upon return from leave. If FMLA does not apply, a short leave of absence and return to the position may be a reasonable accommodation under the ADA.

7. Can a client refuse to accept a worker that had the virus but has since recovered?

Refusing to accept a worker who no longer poses a threat to the workplace based on the employee's previous COVID-19 diagnosis likely violates the ADA and similar state laws.

8. If a worker shares that he or she has some symptoms of the virus, but has not yet tested positive, do I need to advise coworkers and/or clients?

No. While the CDC recommends that such employees be sent home until asymptomatic, it is not necessary (or advisable) to notify others simply because the worker exhibited one or more symptoms of COVID-19.

9. What are my obligations if a worker tests positive for the virus and there are coworkers who may or may not have been exposed? Is there a duty to disclose the identity of the specific worker(s)? What privacy concerns/issues, if any, are involved?

If a worker tests positive for COVID-19, the employer should advise those who have been in contact with the worker that an individual with whom they may have had contact has been diagnosed with COVID-19. Those coworkers who had close contact with the infected worker should be instructed to self-quarantine for 14 days. The name of the infected worker MAY NOT be divulged without the infected worker's consent.

10. Can I require workers to take their temperatures before beginning each workday? Conversely, can a staffing firm refuse to allow clients to take temperatures of temporary workers in areas where the virus is not widespread?

Yes. As the pandemic has progressed, the Equal Employment Opportunity Commission has issued additional guidance stating that employers may take employee temperatures without violating the ADA. See the EEOC's updated guidance. A staffing firm could still refuse to allow a client to take temperatures of the staffing firm's workers, but that may result in such workers being denied entry to the client site.

11. Generally speaking (not referring to FMLA), is there any duty to reinstate temporary workers to their former positions if a job site closes temporarily and then reopens?

Just because the FMLA (as it existed prior to the enactment of the Families First Act) is not applicable does not mean the employer will not have reinstatement obligations following a closure due to this public health emergency. Laws and executive orders being passed in direct response to the pandemic may have reinstatement obligations that apply in this circumstance. For example, the FFA and similar state and local laws enacted in response to the pandemic cover a range of absences necessitated by public health emergencies (in addition to those traditionally covered by the FMLA and/or related state laws) and require reinstatement following such absences in certain circumstances. In turn, companies should follow developments in this area carefully to ensure compliance with rapidly changing requirements.

12. Are there any legal risks associated with not mandating quarantine or requiring removal of sick workers?

Yes. There could be OSHA liability for violation of the general duty clause under which an employer must provide a workplace free from recognized hazards exposure to which will likely cause serious injury or death. Moreover, allowing potentially infected workers to remain in the workplace could generate workers' compensation and tort liability if doing so causes others to become infected with COVID -19.

13. Am I required to remove all workers at a job site where a worker tested positive?

No. In the event of a confirmed positive, the company should work together with its staffing firm to identify those workers who came into "close contact" with the infected worker. Those employees should be self-quarantined for 14 days. Others who may have had lesser contact with the infected worker should be notified and instructed to self-monitor. Remember, the name of the infected employee MAY NOT be disclosed in such notifications. In addition, certain states require employers to notify state or local public health authorities if an employee tests positive. As a general rule, a staffing firm should work with its client on decisions about notifications to state and local health authorities when a temporary worker tests positive and had contact with others in the workplace.

14. OSHA prohibits retaliation against workers that perceive a threat at the worksite. How reasonable does the employee’s belief need to be?

An employee has a limited protected right to refuse to perform an assigned task because of an objectively reasonable apprehension of death or serious injury, coupled with a reasonable belief that no loess drastic alternative than refusal to perform is available. Generally speaking, there is no protected right to walk off the job entirely. A mere apprehension of community transmission of COVID-19 likely is not a reasonable basis for refusal to perform work. While an employee may believe he or she is in imminent danger, this likely is not the case – so long as the employer is following CDC guidance and the most recent OSHA guidance on protecting workers from COVID-19.

15. WHERE CAN I GET ADDITIONAL INFORMATION?

We have found the following resources to provide accurate and timely information related to COVID-19:
https://www.wmc.org/home/coronavirus-covid-19-business-resource-center/
https://www.nam.org/coronavirus/
https://www.osha.gov/Publications/OSHA3990.pdf