March 17, 2020

By: Robbins, Salomon & Patt, Ltd.

RSP has prepared a list of some of the most Frequently Asked Questions (FAQs) that we have received during the current Coronavirus (COVID-19) pandemic. Employers should also consult the FAQ sheets prepared by both the Centers for Disease Control (CDC) and the Equal Employment Opportunity Commission (EEOC).

Travel Restrictions

        1. Can employers restrict employee travel?

Employers can restrict business travel. Employers should first consult the CDC’s website: (www.cdc.gov) “Coronavirus Disease 2019 Information for Travel”, for up-to-date travel notices concerning risk.

        2. What if an employee advises they plan travel to a high-risk area/country?

An employer that has a reasonable belief an employee has travelled to a high-risk country or area and either has acquired COVID-19 or been exposed may ask that the employee not return to work for 14 days or may send the person home.

        3. Can an employer prevent employees from traveling to affected areas?

No, but an employer may deny time off to the employee if the denial is based on the destination, business cost of a resulting quarantine, or other legitimate business-related reasons, but not the national origin of the employee.

Discrimination Laws

        4. What national origin/race discrimination issues apply?

The CDC says: “To prevent stigma and discrimination in the workplace, use only the guidance (provided by the CDC) to determine risk of COVID-19”. Do not make risk determinations based on race or national origin and be sure to maintain confidentiality of people with confirmed COVID-19. For more information, visit www.cdc.gov . Communicable disease or travel policies should not implicate anti-discrimination laws based on race, color, age, pregnancy, national origin, disability or other prohibited reasons.

ADA Issues

        5. Can employers take the temperature of U.S. employees who are coming to work?

Normally, requiring temperature checks is an ADA violation. However, the guidance the EEOC issued in 2009 in connection with the H1N1 influenza virus pandemic suggests the ADA would permit it where COVID-19 is widespread or when symptoms are more severe than those experienced during the seasonal flu, as assessed by state or local health authorities, or by the CDC.

OSHA Issues

        6. Does OSHA require non-healthcare employees to wear respirator masks?

No. Currently, the CDC is not recommending use of facemasks or any other protective equipment by the general public.

        7. What if an employee requests to wear some type of mask as an accommodation?

If an employee shows symptoms or has been diagnosed with COVID-19, the CDC recommends they be separated from other employees and be sent home immediately, negating the need for a mask as an accommodation.

Immigration

        8. An employee without a green card recently traveled to China and is now unable to return on his H-1B visa. Is there a way he  can get back in the United States?

No. Unless the employee is a U.S. citizen or lawful permanent resident, spouse or child under 21, he is presently not permitted to enter the United States.

Lay-offs

        9. If an employer determines that a lay-off is necessary, when is the best time do so?   

Employers will find best to lay off workers before the April 2, 2020 effective date of the new leave laws, but there is no private right of action for retaliation. The Secretary of Labor can bring a retaliation claim on behalf of a worker.