Instructing Employees to Stay Home or Leave Work

It is important that employees with obvious symptoms of illness and disease, including all forms of the flu, should be encouraged to stay home or if they are at work when symptoms develop, to go home. Employers should speak with employees in private who evidence flu-like symptoms or complain of flu-like symptoms and recommend/require that they go home.

The CDC recommends that employers place posters in the workplace that encourage employees to stay home when sick, as well as set out cough and sneeze etiquette.

While a diligent and enthusiastic employee is appreciated, the overall effect of a sick employee coming to work or remaining at work can also have a negative impact on other employees’ health as well as the overall operation and management of the workplace.

At the end of the day, an employer has the right to mandate that sick employees do not come to work or must leave work when their health appears to be compromised.

This is in keeping with the CDC’s policy recommending that people who are experiencing respiratory illness stay at home until they are free of fever and other symptoms, such as frequent and severe coughing, for at least 24 hours without the use of medicines such as aspirin and cough suppressants.

While it is okay to require that employees leave work if they are evidencing flu-like symptoms or to stay home under like circumstances, remember, that employers should not (and cannot) provide medical advice to sick employees; rather, they should only suggest that an employee speak with the employee’s physician, the local health department, and to use telemedicine as appropriate (and if available).

Continuing in this vein, employers should not (and may not) mandate that employees submit to Coronavirus testing; have their temperature taken; or receive a flu shot. With respect to the latter, this does not prevent employers from offering to its employees’ flu shots on a voluntary basis.

Other Measures to Limit Exposure in the Workplace

• Provide tissues and no-touch disposable receptacles for employee use.
• Instruct employees to clean their hands often with alcohol-based hand sanitizer that contains at least 60-95% alcohol or wash their hands with soap and water for at least 20 seconds.
• Ensure that there are ample facilities for employees to wash their hands.
• Provide soap and water and alcohol-based hand rubs in the workplace and
  ensure that adequate supplies are maintained.
• To the extent possible stagger break times to limit the number of employees in common areas at any one time.

Confidentiality and Privacy

It is suggested that you use caution when sharing information with the workforce about employees who have tested positive for the Coronavirus or are symptomatic.  There are potential employee privacy rights at risk associated with such disclosures. This is said even though the CDC suggests that an employer tell employees that a specific employee has contracted Coronavirus; has been exposed to Coronavirus; or has traveled to an area that the CDC has designated a hot spot. It is strongly recommended that a particular employee’s name not be revealed, though realistically most of his/her fellow employees will figure out who it is.

If an employee has tested positive, all employees who have worked closely with that employee for a 14-day period of time should be sent home to ensure that the infection does not spread. The infected employee should identify for the employer those individuals with whom he/she has worked in close proximity with (which is generally meant to be three to six feet) in the previous 14 days.

Do not identify the infected employee by name. Subsequently, employers should deep clean the affected workspace to the extent possible.

To the extent an employer shares office building space or areas with others, the employer should advise the building management so that they may take whatever precautions they deem necessary.

The foregoing precautions also apply in the event of an employee who has a suspected but unconfirmed case of Coronavirus and the employee should be sent home.  In this situation as well, the employer should confer with fellow employees to let them know that while an employee has not tested positive for the virus he/she has been exhibiting symptoms that may possibly lead to a positive diagnosis.

The same procedures as above also apply in those instances of an employee advising that the employee has come in contact with someone who had a presumptive positive case of the Coronavirus.

This notice regarding the Families First Coronavirus Response Act is provided to serve as an overview of the new law and does not constitute legal advice. For additional information, please contact members of Gislason & Hunter LLP’s Labor and Employment Practice Group, attorneys Cory Genelin, Brittany King-Asamoa, David Sturges, or Jennifer Lurken at 507.387.1115.