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Counties are now confronting some difficult questions in regards to how to handle employee issues regarding leave, accommodation, safety, health and other employment issues. The following questions and answers should assist county officials on how to address some of the more common issues that you are facing. You are encouraged to consult the relevant FAQ’s put forth by the Centers for Disease Control (CDC), the Department of Labor (DOL) and the Employment Opportunity Commission (EEOC).
Please remember that different situations and facts can always impact how a specific situation should be handled. Please use common sense when making decisions regarding your employees and do not spread panic. These answers are general answers that might be relevant to broad situations.
How should we respond as a county to the threat of the COVID-19 pandemic?
Each county should make sure that their Continuity of Operations Plan is up to date. A Continuity of Operations Plan should be written to ensure that the critical functions of the county continue to be performed. A Continuity of Operations Plan will be forward thinking and describe the essential functions, associated personnel and resources needed for the county to continue performing critical functions with minimal staff. Every department will need to evaluate the tasks that are critical to complete essential public services and provide a rapid response to a pandemic emergency. Make sure that you identify each function, staff and alternative staff to provide the critical service.
Should we write a policy or pass a resolution that covers how our employees will be paid and what our expectations will be during a pandemic crisis?
Yes. It is always easier to pre-determine how we will treat employees and what our expectations for employees. Things to consider in your policy would be, travel issues, business disruptions, working from home capabilities, points of contact, essential personnel, paid leave issues and safety and health issues. For example, you may consider utilizing Administrative Leave for employees that you are requiring to go home for self-quarantine. Be fair and consistent with paid-time off. The Fair Labor Standards Act does not require you to pay employees who do not work. Your county policy will dictate when and how employees are paid for their time off. You may decide to charge their time off to their sick and vacation leave.
Update – March 20, 2020
All counties will be required to follow the Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act. Please update your policies and any court orders to appropriate apply with the requirement for these paid leaves. This act will require counties to provide 80 hours of paid leave to be used before the use of any accrued leave for full-time employees. Part-time employees will be paid the number of hours equal to the number of hours that such employees work, on average, over a two-week period. An overview of these acts can be found here.
When is FMLA applied to COVID-19?
The same Family and Medical Leave Act (FMLA) rules apply as for any other qualifying event. Being under quarantine and not ill yet, is not a qualifying event under FMLA. The employee, spouse, child or parent must be sick and meet all the qualifications under the FMLA.
Update – March 19, 2020
On March 18, the Emergency Family and Medical Leave Expansion Act requires all public employers to provide FMLA when employees are unable to work or telework because a minor child’s school or day care is closed due to the public health emergency-COVID-19. This will require counties to extend FMLA to employees who have worked at least 30 days or more paid leave after 10 days. The pay will be two-thirds of employees wage per day. The act caps the pay at $200 per day and this will expire on Dec. 31, 2020.
What if an employee exhibits symptoms of the COVID-19 or Influenza? Can we ask them to go home?
You may tell your employees to go home if their symptoms are similar to the influenza or COVID-19. You may ask them to seek medical attention. The EEOC has stated that advising workers to go home for symptoms related to the influenza or COVID-19 virus is not considered a disability related action. However, do not take your employees temperature as that would be considered a medical examination under the American’s with Disabilities Act. The EEOC’s position during a pandemic is to rely upon the guidance of the state or local health authorities or the CDC.
Updated — March 18, 2020
The EEOC has offered extended guidance for employees regarding the public health emergency-COVID-19. Please review the information above for updated EEOC guidance in relationship to the ADAAA.
One of our employees has tested positive for COVID-19. What should we do?
You should send home all employees who have worked closely with that employee for a 14-day period to ensure that the infection does not spread. Determine all employees who worked within a 3 to 6-foot proximity and send them home for 14 days. Make certain you have a complete list. Do not identify by name the infected employee as you could risk violating medical confidentiality laws. You also should consider a deep cleaning of the affected workspaces.
One of our employees has a suspected but unconfirmed case of COVID-19. What should we do?
It will be difficult to make this determination, but don’t let panic lead you. Use facts and logic to guide your thinking. The things to consider when making a determination might include: Has the employee traveled to a restricted area that is under a Level 2-4 travel advisory? Was the employee exposed to someone who has traveled to one of these areas? Again, err on the side of caution, not panic. If the pandemic does become severe in your area, the EEOC guidance will allow for inquiries into an employee’s symptoms. You must maintain all information about an employee’s confidential medical issues the medical file not the employee personnel file. Again, you must maintain confidentiality.
One of employees has self-reported that they came into contact with someone who had a presumptive positive case of COVID-19. What should we do?
Treat the employee situation as if the suspected case is a confirmed case for purposes of sending the employee home. Communicate to your affected employees to let them know that the employee is asymptomatic for the virus but you are acting out of an abundance of caution.
Should we put anything out in the courthouse about the COVID-19 and risk of transmission?
Yes. The most important message you can provide to your employees: STAY HOME IF YOU ARE SICK. Provide the information that the CDC is using. Your message should include information on hand washing, avoiding touching your face, eyes, nose and mouth. Avoiding close contact with others, especially those who are sick. Refrain from shaking hands for the time being. Cover your cough or sneeze.
Can the county restrict employee travel under a CDC travel advisory?
An employer can restrict business travel.
What if an employee shares they are planning on traveling to a high risk area?
In this situation, the county may advise the employee about the risks of travel, including quarantine thereafter, and should avoid any action that could result in a claim of national origin discrimination. The county cannot prevent employees from traveling to these areas for personal reasons, but may deny time off if the denial is based on the destination, potential cost of quarantine upon return to work or other legitimate business related reasons. However, if the employee is traveling for an FMLA qualifying reason, you may not deny the leave or use of paid time.