As noted several times in our prior articles published over the last week, the CDC recommends that businesses encourage employees with symptoms of acute respiratory illness to stay home until free of fever for at least 24 hours.  Additional guidance dictates that anyone who suspects exposure to the Coronavirus quarantine themselves for up to two weeks.  These recommendations are sound in the abstract, but the CDC and healthcare officials provide no advice regarding how businesses are to navigate the legal minefield of such leaves, not to mention the financial impact of mass workforce absences.

Employers should begin by reviewing the existing laws and regulations applicable to employees who contract the Coronavirus as follows:

• The FMLA would provide up to 12 weeks of unpaid leave to all employees who work for an employer with 50 or more employees, who have been so employed for at least one year and who have worked at least 1,250 hours immediately preceding the need for leave, as the  Coronavirus would certainly qualify as a “serious health condition.”
• The Americans with Disabilities Act would require employers to provide reasonable accommodations, which could include remote computer access from home, if doing so would not present an “undue hardship” on the business.  If remote access is not feasible, the employee is too ill to actually perform the essential functions of their job from home, or the nature of the job itself does not logistically permit working off-site, then a brief, temporary leave of absence would likely need to be considered as a reasonable accommodation, as well.
• Under state Workers’ Compensation laws, and as noted in our previous article on this topic, employees who can demonstrate they contracted the Coronavirus during the course and scope of employment would be entitled to wage loss while incapable of working and medical benefits until fully recovered therefrom.
• Short-Term Disability programs differ from employer to employer.  However, it is quite conceivable that virtually all such programs would provide wage replacement benefits to any covered employee whose absence from work, due to contracting the Coronavirus, extends beyond the applicable waiting period. 
• PTO / Sick Leave / Personal Leave offered by employers would likely also apply in such circumstances.

In reality, however, fact scenarios falling outside of these specific laws or programs may provide more difficulty for an employer.  Employees could certainly choose to ignore voluntary self-quarantine recommendations, when no leave options would provide for compensation while the employee is out of work.  Setting aside paid leave, some employees could theoretically face employment termination if policies do not provide for unpaid leave in circumstances where an employee’s actions are merely preventative and an actual medical condition cannot be verified.

Employers clearly need a plan.  We generally do not recommend deviation from policies and procedures.  Nonetheless, our next article will highlight the possible need for temporary modification or exceptions to leave policies due to these extenuating circumstances, when balanced against the financial risk to the business should a significant number of employees fall ill because an infected employee chose not to stay home.

Cipriani & Werner, P.C. is prepared to assist you through this period.  Our Employment Practice Group is ready to answer questions, navigate employment concerns, identify your category of risk and develop a specific strategy for address.  We emphasize a calm and considered approach. This is a time and opportunity for employers to take the lead in the development of a safe and productive workplace.  Additional articles pertaining to considerations for leave, basic precautions, flexible schedules and work from home opportunities are being developed and will be disbursed in the next few days.

If there is a particular concern or need for immediate review. please contact us at 1-888-488-2638 immediately.