Dear Friends and Clients:
RE: COVID-19 (Coronavirus) Legal Support
Campbell Durrant is available 24/7 to assist you during this period of serious Coronavirus related challenges for all municipal employers. We recognize that you are on the front line of the Coronavirus challenges as you work every day to keep your employees and the public safe while at the same time maintaining essential public services.
We have listed below the contacts of shareholders including cell phone numbers and encourage you to call us whenever new labor and employment issues arise.
Our website will offer one-stop information and resources for employers including the attached Coronavirus FAQs which answer the most common Coronavirus employment-related questions. The firm will offer video briefings to provide you with up-to-date employment information and targeted practical guidance on how to maintain essential municipal operations while protecting the safety of employees and the public in compliance with applicable laws, collective bargaining agreements and policies.
We have worked with many of you for years and have the utmost confidence in your dedication and ability to successfully work together through these serious challenges. Please contact us as often as we can be of assistance and let us know when you receive our e-alerts and webinars any other questions we can answer, issues we can address or information we can provide to help you deal with this crisis.
Patrick J. Harvey
John P. McLaughlin
Richard D. Miller
Prepared by the attorneys at Campbell Durrant, P.C.
(412) 395-1280 Pittsburgh
(610) 227-2591 Philadelphia
I. The Response to COVID-19
It is now clear that our lives will be significantly impacted by the outbreak of Coronavirus (COVID-19).
The following are prominent employment and labor questions that Campbell Durrant, P.C. expects Pennsylvania employers, including local governments, to face as the COVID-19 pandemic unfolds.
II. REQUESTING EMPLOYEE HEALTH INFORMATION
A. How much information may employers request from employees who report feeling ill at work or who call in sick, and can employers take employees’ temperatures?
Employers may ask employees if they are experiencing influenza-like symptoms, such as fever or chills, a cough, or sore throat, during this outbreak. Employers must maintain all information about employee illness as a confidential medical record in compliance with the Americans with Disabilities Act (“ADA”). Because the number of COVID-19 cases continues to rise in Pennsylvania, it is likely permissible to measure employees’ body temperature, based on U.S. Equal Employment Opportunity Commission (“EEOC”) pandemic guidance, although employers should consult legal counsel and be aware that some people with COVID-19 do not present with a fever.
B. May employers ask asymptomatic employees to disclose whether they have a medical condition that CDC says would make them vulnerable to COVID-19 complications?
The answer depends on how serious the COVID-19 pandemic becomes. Making inquiries or requiring medical exams of employees without symptoms is almost always prohibited by the ADA. If the COVID-19 pandemic becomes sufficiently severe or serious according to the assessment of local, state or federal public health officials, employers may have sufficient objective information to reasonably conclude that employees will face a direct threat if they contract COVID-19. Only in this circumstance may employers make inquiries or require medical exams of asymptomatic employees to identify those at higher risk of COVID-19 complications.
C. May an employer ask an employee why he or she has been absent from work?
Yes, asking why an individual did not report to work is not a disability-related inquiry. An employer is always entitled to know why an employee has not reported for work.
D. May employers require employees who have been away from the workplace to provide a doctor’s note certifying fitness to return to work?
Yes, employers may require fitness for duty certifications during the COVID-19 pandemic. As a practical matter, however, employers may need to be flexible because doctors and other health care professionals may be too busy to provide fitness-for-duty documentation, given the current and anticipated influx of COVID-19 patients. Flexibility may include relying on return to work slips, e-mails, or stamps from local health clinics certifying that the employee does not have COVID-19.
E. Do employees have return to work rights?
Yes, employees taking protected leaves, like FMLA, generally have the right to return to work, usually to the same or an equivalent position. There is also proposed federal legislation which would provide employees with additional paid leave and job protection. Generally, return to work may be based on a medical clearance, but some laws impose restrictions. Under the FMLA, for example, an employer may require a fitness-for-duty certification, as discussed above, but the employer must uniformly apply that policy and advise the employee of the requirement in the FMLA Employer Designation form.
III. EMPLOYEE TRAVEL
A. If an employee returns from travel, can the employer ask questions about exposure to COVID-19?
Yes. If the CDC or state or local public health officials recommend that people who visit specific locations remain at home until it is clear that they do not have COVID-19, an employer may ask whether employees are returning from these locations, even if the travel was personal, and these are not considered disability related inquiries. Currently, the CDC recommends that individuals who have traveled to countries designated as Level 3 outbreaks (widespread, ongoing transmission) self-quarantine for fourteen (14) days after returning to the U.S. As of March 16, 2020, the CDC has designated China, Iran, South Korea, Italy, the United Kingdom, and nearly every other country in Europe as Level 3 outbreaks. Employers can require employees who have traveled to a Level 3 country to remain home for the recommended fourteen (14) day isolation period.
B. Can employers restrict employee from personal travel to outbreak regions?
No. Employers cannot restrict employee personal travel, and may violate the ADA’s prohibition against association discrimination if an employer discriminates against employees with family in COVID-19 outbreak regions. Employers can request that employees traveling to outbreak regions notify the employer about such travel, and they can monitor employees returning from outbreak regions (even if they are not designated by CDC as Level 3 countries) for signs or symptoms of infection. Finally, as discussed above, employers can require employees to remain home from work for an isolation period, if the employees has traveled to a Level 3 country.
IV. WORK ORGANIZATION AND SCHEDULING
A. Which employees should continue to work while COVID-19 cases continue to rise in Pennsylvania?
Each employer, including local governments, will need to determine how to handle staffing during this extraordinary time. Clearly, employees who are experiencing influenza-like symptoms should be instructed to remain at home. Employers can require employees who have traveled to outbreak areas to remain home for an isolation period before returning to work, as discussed in III A above. The CDC has also provided a risk assessment matrix that employers should consult if there is a suspected or confirmed COVID-19 case in the workplace: https://www.cdc.gov/coronavirus/2019-ncov/php/risk-assessment.html.
Some municipalities have and will choose to provide only “essential services” during this temporary and extraordinary period. Some of the emerging employment questions these municipalities will face are:
- Can an employee refuse to come to work for fear of contracting COVID-19, even if they are not presently ill? Generally, no.
- Will a temporary furlough be implemented for employees who do not perform essential services, and if so, what positions provide those essential services? As of March 16, 2020, the Governor has ordered all non-essential businesses to close.
- How are paid and unpaid leave policies applied during this period, and does the Family and Medical Leave Act (“FMLA”) apply? The FMLA continues to apply and employers should continue to follow their leave policies.
- If an asymptomatic employee requests leave out of concern that they are at high risk of complications if exposed to COVID-19, how is that leave request addressed? Should this be treated as an accommodation request under the ADA? Yes, generally speaking, this request should be considered an ADA accommodation.
- Unemployment compensation applies generally to furloughed employees. However, is an employee eligible for unemployment compensation benefits if placed on unpaid leave because of the concerns described in subsection IV d above? Generally speaking, yes. Employees are entitled unemployment compensation benefits if they are laid off, furloughed, or their hours are reduced.
- Can an employer with a unionized workforce unilaterally adopt changes in schedules or layoffs/furloughs? It depends. Each collective bargaining agreement needs to be examined before answering this question definitively, but the law recognizes a “compelling economic exigency” exception, allowing employer action for unforeseen extraordinary events requiring immediate action.
- What are the risks of a discrimination claim and what steps can be taken to mitigate that risk? All civil rights statutes, including Title VII of the Rights Act of 1964 remain fully in effect, including those provisions prohibiting discrimination on the basis of race and national origin.
Municipalities should consult with their legal counsel to address these emerging questions. The answers will be highly fact-specific and depend on your specific operational needs and accrued leave/paid leave and unpaid leave policies, in conjunction with application of federal, state and local law such as the FMLA, ADA and Pennsylvania Human Relations Act.
V. INFECTION CONTROL PRACTICES
A. If an employee is confirmed to have COVID-19, should the employer notify other employees?
Yes, the CDC recommends that the employer should inform employees of the possible exposure, but maintain confidentiality around the identity of the employee consistent with the ADA.
B. May employers require employees to adopt infection-control practices, such as regular hand washing in the workplace, and do employers have an obligation to address hazards associated with COVID-19?
Employers may require infection control practices, such as regular hand washing and coughing and sneezing etiquette. Staggering shifts is also recommended in order to create physical distance between employees. The CDC and WHO recommend strategies involving enhanced workplace hygiene, environmental cleaning, and employee education. See: CDC’s Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease; Environmental Cleaning and Disinfection Recommendations: https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html.
Although local governments are not regulated by OSHA, OSHA regulated employers are required to furnish workers 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.” OSHA has issued guidance that employers should adopt infection control strategies based on a thorough hazard assessment, using appropriate combinations of engineering and administrative controls, safe work practices, and personal protective equipment to prevent worker exposures.
VI. FAMILY AND MEDICAL LEAVE ACT
A. Does the Family and Medical Leave Act (FMLA) cover absences for infection?
It depends. If in doubt, provisionally designate the leave as FMLA pending receipt of medical certification. If an employee or qualifying family member has the COVID-19 infection, it will likely constitute a “serious health condition” under the FMLA if it otherwise falls within the definition. This could be the case if there is an inpatient hospitalization or the employee meets the “absence plus treatment” category.
If an employee is absent on FMLA Leave related to COVID-19, and voluntarily opts to perform work while at home, be sure to distinguish between work time and FMLA time.
B. Does the FMLA cover absences in the absence of infection?
Assuming neither the employee nor their covered family member is infected, it is unlikely that FMLA will cover their absences. Mere symptoms are unlikely to constitute a “serious health condition.” Also, time away from work for fear of contracting the virus is not an FMLA-qualifying reason for leave, absent a qualifying serious health condition.
C. Does FMLA cover a child’s school closure due to Covid-19?
Not at this time. Currently, time away from work because an employee’s children are out of school (provided the child is not infected) will not constitute an FMLA-qualifying reason for leave, but there is pending federal legislation that is expected to change this provision. Please monitor our website and your email for e-alerts with information about state and federal legislative changes.
VII. The Sunshine Act and Public Meetings
A. Are we still required to comply with the Sunshine Act’s opening meetings requirements?
Yes. The Pennsylvania Office of Open Records (“OOR”) has taken the position that the Sunshine Act still applies. OOR has advised that if an official emergency declaration prevents in person public participation, a meeting via teleconference, webinar, or other electronic method that allows for two-way communication is permissible in most circumstances.
However, it is important to note that an agency taking that step must provide a reasonably accessible method for the public to participate and comment pursuant to Section 710.1 of the Sunshine Act. That method should be clearly explained to the public in advance of and during the meeting.
35 Pa.C.S. 7501(d) allows agencies under a “declaration of disaster emergency” to suspend the need to comply with certain laws and requirements. In context, any such suspensions must be related to the emergency. https://openrecordspennsylvania.com/2020/03/11/the-sunshine-act-and-covid-19/
B. Do elected officials need to be physically present to meet quorum requirements?
It depends. If a municipal employer is exploring alternate meeting arrangements, review applicable enabling legislation or other governing documents, such as an inter-municipal agreement, to make sure that all quorum requirements are satisfied. One such issue, for example, is whether governing officials need to be physically present at a meeting in order to meet quorum requirements and/or to cast a vote. Generally, however, as long as there is two-way communication, officials do not need to be physically present at a meeting in order to satisfy quorum requirements and/or to cast votes.
THE BOTTOM LINE
The attorneys at Campbell Durrant, P.C.
remain ready and able to assistant local governments and other employers as
they navigate this extraordinary situation. Informed, strategic decisions can
not only ensure legal compliance and mitigate litigation risk, but help
employers prevent the spread of this potentially deadly global pandemic in the
work place. During these uncertain
times, our team remains committed to working with our clients to ensure the
health and safety of their workforce and the public they serve.
The information provided in this document does not, and is not intended to, constitute legal advice; instead, all information, content, and materials provided here are for general informational purposes only. Information in this document may not constitute the most up-to-date legal or other information. No reader of this document should act or refrain from acting on the basis of information provided here without first seeking legal advice from counsel.