Texas falls within a tier of states with confirmed coronavirus cases, and while the number of confirmed cases is fast increasing, Texas cases remain well below Washington, California, New York, and Massachusetts. In those states, and particularly in affected locations and industries, employers like Microsoft and Facebook—which have offices in localities with higher reported incidence of the disease—have implemented serious measures such as telework and minimized-travel directives. Indeed, Stanford University has replaced classroom instruction with online instruction for the time being, allowing students to leave the university premises, if desired. Rice University canceled in-person classes the week of March 9 and gatherings of 100 or more persons through the end of April. Anticipating that the number of reported cases will continue to increase, employers must manage the legal risks that accompany preparedness and containment efforts in the workplace.
Policies Crafted to Minimize Workplace Exposure
Employers in higher risk areas generally are implementing new policies and preventive measures to minimize exposure within the workplace. These preventive actions may include telework directives for those employees able to perform their duties remotely, limiting exposure within the work environment (e.g., converting family or buffet-style meal perks at meetings or for extended work hours to boxed meals with individual cutlery), restricting travel and imposing post-travel workplace quarantines, providing literature regarding symptoms and risks while requesting or requiring self-quarantine for symptoms affecting an employee or their housemates, and heightened hygiene and cleaning protocols. All measures are not practical in every work environment. Moreover, if implemented without thoughtful management, efforts with benign intent may create legal risk. There are many levels of response and tailoring a response to the actual facts and the Centers for Disease Control and Prevention, or CDC, risk assessment is critical for employers.
Absences, Voluntary or Forced Time Off, and Disability and Anti-Discrimination Laws
Employers must comply with federal, state, and local laws governing absences and imposed leave. This means that while it is acceptable to check on the welfare of a worker with a truly bad cough or a feverish or sweaty appearance, the questions must relate to the worker’s current status, without delving into general medical history or other questions that might violate federal or state disability laws.
It is possible that Family and Medical Leave Act leave rights may apply, and employers should evaluate quarantine periods under this protocol.
Providing all employees with information regarding coronavirus symptoms, medical risk, methods for and the need to seek medical treatment can be an important step in an employer’s decision to ask that employees stay home while sick, or a policy requiring disclosure and a two-week self-quarantine if a worker learns he or she has been exposed to the coronavirus through an intimate partner, a housemate, or during travel.
Education also can do much to prevent stereotyping of or bias toward co-workers based upon national origin. Employers may not focus preventive efforts on employees of Chinese, Egyptian, or Iranian decent, for example, but should assess risk based on the risk factors identified by the CDC. Employers should be sensitive to inappropriate or fearful conduct by co-workers and should anticipate and have clear answers to questions invoking such stereotypes.
Certainly, the ability of any particular employer to implement telework or to request voluntary worker self-quarantine will depend upon the nature of the business. Each employer should identify essential business functions and job roles to remain operating, and each should consider how the business would operate in the face of absenteeism or supply chain interruption.
Workplace Health and Safety
While ordinarily it is not appropriate to require disclosure of a medical condition, where the health or exposure of a worker affects workplace safety, it is permissible and even necessary to require disclosure to protect others in the workplace. Consequently, requiring that a worker notify human resources of a coronavirus diagnosis is appropriate to implement preventive and containment actions promoted by the CDC guidance. Additionally, many employers have implemented heightened cleaning and sanitization protocols when an employee leaves the workplace because coronavirus-like symptoms have developed.
The Equal Employment Opportunity Commission, or EEOC, guidance reinforces that the identity of an employee with a confirmed case of coronavirus may not be disclosed. However, an employer still must take effective steps to notify or protect others who have been exposed to the employee while in the workplace, and the EEOC defers to the CDC guidelines.
Employees may not refuse to work or travel based merely on fear of exposure at work. Only where the risk is real as determined by public health guidance may an employee refuse work or travel. The test generally is whether a reasonable person would recognize a risk. Many employers, where feasible, are deferring to employee comfort levels for non-critical travel.
Employers need not provide masks in most non-health care settings.
Wage and Hour Obligations
Employers remain responsible for assuring that time worked outside the office is properly reported and paid, notwithstanding that hourly paid employees may not have access to the ordinary timekeeping applications, or the supervisory oversight, that typically apply. Different rules apply to exempt and hourly paid employees. Policies must assure that hourly paid employees report and be paid for all time worked, and that activities that constitute compensable “work” be unambiguous and communicated to teleworkers.
Teresa Valderrama, a partner in the Houston office of Fisher Phillips, is certified in labor and employment law by the Texas Board of Legal Specialization and has over 30 years’ experience representing employers in all areas of labor and employment law. She is the immediate past chair of the State Bar of Texas Labor & Employment Law Section and a frequent lecturer at TexasBarCLE events. With her firm, Valderrama provides management guidance on the coronavirus.