Coronoavirus Update for Vermont Employers & HR Professionals: Answers to 7 FAQs

Today, many employers and human resources professionals are finding themselves in uncharted territory as the 2019 Novel Coronavirus (COVID-19) pandemic has been declared a national emergency and continues to impact communities around the world. Employment Attorney, Alexandra Clauss, is actively counseling businesses on legal best practices for responding to the virus and promoting a safe and healthy work environment.

This update is intended to provide answers to frequently asked questions related to an employer’s response to COVID-19. This is a rapidly evolving situation, and employers must stay informed and be guided by the most up-to-date recommendations of the Centers for Disease Control and Prevention, the Vermont Department of Health, and the departments of health in the states where your worksites are located.  Employers should seek advice from employment counsel before imposing stricter requirements on employees, to confirm such restrictions are compliant with applicable law.

1. What Are an Employer’s Responsibilities & Legal Obligations to Employees?

• The federal Occupational Safety and Health Act (OSHA) and Vermont’s Occupational and Health Administration (VOSHA) require employers to provide a safe and healthful workplace for all employees. Under this general duty of care, employers must ensure that workplace conditions meet or exceed applicable safety and health regulations.  Please visit OSHA’s website for standards, directives, and other related information that may apply to worker exposure to COVID-19.  OSHA and VOSHA both prohibit employers from retaliating against workers for raising concerns about health or safety in the workplace.
• All employers should be ready to implement strategies to protect their employees, clients, and patients from COVID-19, while ensuring continuity of operations.
• All employers should review their safety policies, programs and emergency action plans to ensure that they include infectious disease protocols and are compliant with OSHA and health and safety regulations. 

2. What Steps Can an Employer Take to Prevent Harassment or Discrimination

• Potential harassment and discrimination issues can arise if individuals are targeted based on assumptions or fear.  Employers must promptly take steps to prevent workplace harassment or discrimination towards an individual who is suspected to be infected, who may be disabled or perceived to be disabled.
• Employer actions should be based on legitimate, non-discriminatory business reasons, guided by objective standards and reasonably reliable sources of information such as the CDC and the Vermont Department of Health. If an employer is developing a policy requiring incubation period leave, that policy should be based on neutral, objective information from the CDC and be uniformly and consistently applied.
•  If an employee is confirmed to have COVID-19, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace, but must also maintain confidentiality related to the employee’s personally identifiable medical and leave information as required by law.

3. How Should An Employer Handle Employee Leave & Requests for Time Off?

• If an employee is quarantined due to their own travel or exposure or to care for a family member for similar reasons, employers need to determine whether the Family and Medical Leave Act (FMLA), Vermont Parental and Family Leave Act (VPFLA), or other leave laws apply to an employee’s absence.  If the leave qualifies as VPFLA, an employer cannot require that an employee use paid time off for the absence.  If the employee has accrued but unused paid time off, it is the employee’s choice whether to use paid time off or take unpaid leave during VPFLA leave (under the law, an employer may cap paid time off used during VPFLA leave at 6 weeks, though employer policies can be more generous).  21 V.S.A. § 472(b).
•  Under Vermont’s Earned Sick Time Rules, an employer may adopt a policy that requires an employee to use earned sick time for an absence from work for a reason that is covered under the law (Section 6(j)). However, an employer that provides paid time off in amounts consistent with or more generous than the Vermont Earned Sick Time law that also may be used as earned sick time shall not be required to provide additional sick time to an employee.  An employer’s paid time off policy could require employees to use paid time off for any absences from work. If employees will be required to use paid time off for absences from work, it should be communicated to them in writing, in advance.
• Employers should also be aware that an employee’s request for time off or telework may request for a flexible working arrangement under Vermont law, which must be considered by the employer in good faith.
• If an employer will require a note clearing the employee to return to work, employers should implement a uniform, consistent, and legally-compliant policy for obtaining such information. 
• The Equal Employment Opportunity Commission has provided the following Pandemic Preparedness guidance with answers to frequently asked questions about the workplace and medical inquiries of employees during Coronavirus-like events

 4. Can An Employer Require That An Employee Stay Home Or Leave Work If they Exhibit Symptoms of COVID-19

• Yes. The CDC states that employees who exhibit symptoms of influenza-like illness at work during a pandemic should leave the workplace. According to the CDC, common symptoms of COVID-19 are “fever, cough, shortness of breath.”  The CDC recommends that employees stay home if they are sick until at least 24 hours after their fever (temperature of 100 degrees Fahrenheit or 37.8 degrees Celsius or higher) is gone. Temperature should be measured without the use of fever-reducing medicines (medicines that contains ibuprofen or acetaminophen).  The employer should explain why they are sending the employee home and explain that staying home when they have these symptoms prevents the spread of the virus and minimizes exposing co-workers to a serious chance of illness.  Depending on the facts or circumstances, the employer may want to have the employee stay home for 14 days.  The employee should be advised, based on CDC guidance to:  “Seek medical advice if they have these symptoms and have been in close contact with a person known to have COVID-19 or live in or have recently traveled from an area with ongoing spread of COVID-19. Call ahead before you go to a doctor’s office or emergency room. Tell them about your recent travel and your symptoms.”

5. Can An Employee Refuse To Work Out of Fear Of Contracting COVID-19?

• An employee is entitled to refuse to work if they believe they are in imminent danger. Section 13(a) of OSHA defines “imminent danger” to include “any conditions or practices in any place of employment which are such that a danger exists which can reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.” OSHA discusses imminent danger as where there is “threat of death or serious physical harm,” or “a reasonable expectation that toxic substances or other health hazards are present, and exposure to them will shorten life or cause substantial reduction in physical or mental efficiency.” 
• Section 7 of the National Labor Relations Act (NLRA) also protects employees (in union and non-union workplaces) to engage in “protected concerted activity for mutual aid or protection.” Such activity has been defined to include circumstances in which two or more employees act together to improve their employment terms and conditions.  Protection has been extended to individual action expressly undertaken on behalf of co-workers.  The NLRB’s website lists “participating in a concerted refusal to work in unsafe conditions” as an example of concerted activity. Employees are generally protected against discipline or discharge for engaging in concerted activities. 
• If an employer encounters a situation where any employee is refusing to work because of a concern of infection or unsafe condition, we recommend the employer consult with employment counsel before any adverse action is taken against an employee who is refusing to work over fears of COVID-19 infection, who is claiming working conditions are unsafe, or who is participating in discussions with other employees about refusing to work.

6. What Are The Considerations Surrounding Paying Employees Who Are Not Working for a Reason Related to COVID-19?

• An employer does not have to pay an employee if they are not working, absent any contract (e.g., an employment contract or collective bargaining agreement) or policy requiring the employer to pay the employee.  In determining its approach, an employer should consider non-legal matters such as encouraging compliance with requests to stay home when sick, employee morale, public relations, and the fact an employee’s inability to work may not be within the employee’s control.  Decisions about pay during quarantine should be consistent and uniformly applied.  One difference relates to exempt/salaried employees who generally must receive the full salary for any week in which the employee performs any work, regardless of the number of days or hours worked, unless the situation meets one of the exceptions under the law.  A U.S. Department of Labor opinion letter addressing such exceptions can be viewed here and a Fact Sheet summarizing the circumstances in which an employer may make deductions from an exempt employee’s salary may be viewed here.

 7. How Should An Employer Handle Employee Personal Travel?

• Employers should advise that employees check the CDC’s Traveler’s Health Notices for the latest guidance and recommendations for each country to which they will travel. Specific travel information for travelers going to and returning from various affected locations can be found on the CDC website.
• It is prudent for employers to ask employees to inform them if they are planning travel (or have traveled in the last 14 days) to a foreign country or on a cruise ship, if they have had close contact with someone who has COVID-19, within the last 14 days, or if they have been in close contact with someone who is exhibiting symptoms and has travelled (within the last 14 days) on a cruise ship or to a geographic area designated as Level 2 or 3 by the CDC.  Employees should be notified they may be required to stay home upon return from travel, as the employer deems appropriate based on guidance from the CDC and Vermont Department of Health.

 Please keep in mind that different or additional facts may impact how a particular matter should be handled.  This alert is intended to provide an overview and is not legal advice for any particular situation. 

Here Are Additional Useful Links and Resources for Employers:

• Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19)
• Coronavirus (COVID-19) Workplace Tips for Employees
• Guidance For Employers To Plan and Respond To Coronavirus
• OSHA & COVID-19 & Guidance on Preparing Workplaces for COVID-19
• Pandemic Preparedness in the Workplace and the Americans with Disabilities Act
• Posters and information sheets are available from the CDC here
• Coronavirus Disease 2019 Information for Travel
• CDC guidance on mass gatherings and large community events
• Pandemic Preparedness Planning For U.S. Businesses With Overseas Operations (CDC)
• World Health Organization: Coronavirus disease (COVID-19) outbreak