COVID-19 : Employment Law Compliance – FAQ’s on Employees and Workplace Safety Concerns

Seder & Chandler, LLP. clients may obtain advice and strategic input on workplace preparedness plans concerning COVID-19, by contacting our Employment Law Team. If you have specific health-related concerns, contact your local Department of Public Health or healthcare provider.

This information is current as of March 18, 2020. For the most up-to-date information, readers are encouraged to consult the websites and resources identified below:

1-Q: Should I consider providing information to my employees about the coronavirus?

A. Yes. Information is available at no cost on the CDC’s website.

2-Q: What if an employee appears sick? Can we ask an employee to stay home or leave work if they exhibit symptoms of the COVID-19 coronavirus or the flu?

A. Yes, you are permitted to ask them to seek medical attention and get tested for COVID-19, and under most circumstances you can ask them to leave work.

3-Q: Can I take an employee’s temperature at work to determine whether they might be infected?

A: The Americans with Disabilities Act (ADA) places restrictions on the inquiries that an employer can make into an employee’s medical status, and the Equal Employment Opportunity Commission (EEOC) considers taking an employee’s temperature to be a “medical examination” under the ADA.

4-Q: Does the Americans with Disabilities Act (ADA) restrict how I interact with my employees due to the coronavirus?

A. Not if it’s a pandemic. The ADA protects employees with disabilities, but during a global health emergency, as recently declared by the World Health Organization (WHO), employees can be required to be medically examined to determine if they have contracted the disease when an employer has a reasonable belief that employees will pose a direct threat due to a medical condition.

5-Q: An employee of ours has a suspected but unconfirmed case or has tested positive for of COVID-19. What should we do?

A. You should send home all employees who worked closely with that employee for a 14-day period of time to ensure the infection does not spread. When sending the employees home, do not identify by name the infected employee or you could risk a violation of confidentiality laws.

6-Q: Can I send employees home who exhibit potential symptoms of contagious illnesses at work?

A. Yes, sending an employee home who displays symptoms of contagious illnesses would not violate the ADA’s restrictions on disability-related actions.

7-Q: If we learn or suspect that one of our employees has COVID-19, do we have a responsibility to report this information to the CDC?

A. There is no obligation to report a suspected or confirmed case of COVID-19 to the CDC. The healthcare provider that receives the confirmation of a positive test result is a mandatory reporter who will handle that responsibility.

8-Q: Can we prohibit an employee from traveling to a non-restricted area on their personal time?

A. You generally cannot prohibit otherwise legal activity, such as travel abroad by an employee. While a federal court of appeals recently held that it is not necessarily a violation of the ADA to terminate an employee who refuses to cancel personal travel to an area of the world with a high risk of exposure to a deadly disease, you still could risk legal exposure, reduced employee morale, and negative publicity if you do so.

9-Q: Can employees refuse to travel as part of their job duties?

A. Employees who object on behalf of others or act in groups could be covered by the National Labor Relations Board (NLRB) protection of concerted protected activity. You will want to proceed with caution and consult with your attorney before taking any steps in this regard. Moreover, under the federal OSH Act, employees can only refuse to work when a realistic threat is present.

10-Q: My employee alleges that they contracted the coronavirus while at work. Will this result in a compensable workers’ compensation claim?

A. If a person contracts the virus for any work-related reason, that person could be eligible for workers’ compensation.

Updated March 18, 2020

13-Q: When can employees file for unemployment benefits?

A: Immediately. The Department of Labor (under Section 23 of chapter 151A of the General Laws), will waive the one-week waiting period for any person making a claim for unemployment benefits who has become separated from work as a result of any circumstance relating to or resulting from the outbreak of the 2019 novel Coronavirus or “COVID-19” or the effects of the Governor’s March 10, 2020 declaration of a state of emergency. This section will expire 90 days after termination of said state of emergency. Retroactive to March 10, 2020.

14-Q: Who qualifies to receive unemployment benefits?

A: Department of Unemployment Assistance may now pay unemployment benefits if a worker is quarantined due to an order by a civil authority or medical professional or leaves employment due to reasonable risk of exposure or infection or to care for a family member and does not intend to or is not allowed to return to work. Unemployment benefits will also be available in the event an employer temporarily closes due to COVID-19. The worker need not provide medical documentation and need only be available for work when and as able.

15-Q: Will telehealth be covered by my insurance or Medicare?

A: Yes. Beginning on March 16, the Commonwealth filed an order expanding telehealth services. Carriers and the GIC are all required to allow all in-network providers to deliver clinically appropriate, medically necessary covered services to members via telehealth. The GIF and Carriers shall insure that the rates of payment to in-network providers for services delivered via telehealth are not lower than the rates of payment established by in-person visits. The insurance companies will communicate with providers on necessary billing for telehealth services.

16-Q: Will there be a deductible or co-pay for using telehealth?

A: GIF and Carriers will not charge patients copayments, deductibles or coinsurance for medically necessary treatment being delivered via telehealth related to COVID-19 at in network providers. If you use telehealth for healthcare unrelated to COVID-19, there may be a co-pay.