Answer:
- Ask the employee to voluntarily stay home pending the test, and advise them to get medical attention if they experience known symptoms of COVID-19 (fever and cough). If the employee can work from home, that would be ideal. If not, PTO or other paid or unpaid leave policies could be used. STD and ADA would not apply because the employee is not disabled, and FMLA would not apply unless the employee is eligible and the partner is determined to have a “serious health condition.” Hopefully the employee will voluntarily comply. Requiring that a potentially exposed but not sick employee stay away from work, especially if it is not possible for that employee to work from home, risks potential violations of the Americans with Disabilities Act and other labor laws. The risk can be mitigated to some extent, however, by equipping employees to work from home if that is possible and/or by requiring entire business units (including but not limited to the potentially exposed employee) to furlough or work from home.
- Be aware of FLSA obligations to employees who are sent home due to symptoms of or exposure to COVID-19. Exempt and non-exempt employees who are not working due to their own potential exposure or symptoms, or that of someone they care for, can be required to use paid or unpaid leave, consistent with the company’s policies. Absent available paid time off, exempt employees generally must be paid for any week in which they perform any work, while non-exempt employees must only be paid for time actually worked. The Department of Labor has posted Q/A guidance on pay regulations related to COVID-19: https://www.dol.gov/agencies/whd/flsa/pandemic.
- Because the employer has been made aware of an employee’s potential exposure to COVID-19, the employer may have a duty to disclose this potential risk to other employees. If the report had involved an actual exposure (evidenced by a positive test for COVID-19), the employer definitely should disclose the risk to other employees. Advising the affected employees that a team member has been exposed is appropriate to do, so long as you do not identify the team member with the potential health issue. In some teams, it will be impossible for employees not to deduce the identity of the reporting employee, but it cannot be the employer who shares that information, because health info is required by law to be maintained as confidential.
- There could be situations where an employer is required by law to send employees home and/or take other safety measures such as disinfecting work areas, to comply with OSHA’s General Duty Standard, which requires employers to keep the workplace free from recognized hazards that are causing or are likely to cause death or serious injury or serious physical harm to employees.” N.C. Gen. Stat. 95-129(1).
Because the COVID-19 pandemic is a fluid situation, and because risks can be presented in a myriad of ways, it is important to analyze each situation on a case by case basis, to determine the appropriate course of action, rather than implementing detailed hard and fast rules in advance.
If you need help with your planning or working through scenarios that present themselves in your workplace, we are here to help. Please contact Morningstar Law Group Partner, Amie Flowers Carmack, for assistance: acarmack@morningstarlawgroup.com or 919.590.0394.
