Q. Can employers ask employees who exhibit symptoms to leave work and stay home?
A. Yes. The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace. The EEOC Guidance, Pandemic Preparedness in the Workplace and the Americans With Disabilities Act addresses these issues.
Q. What should we do if one of our employees has COVID-19 symptoms or tests positive for COVID-19?
A. “Employers should send the employee home and require them to stay home until they are able to return under CDC guidance. It is important to note that return to work standards and time frames may be different depending on circumstances. Employers should review the CDC’s website for guidance. If an employee tests positive, the employer should also consider notifying other employees who may have been exposed at work, but maintain the confidentiality of the employee who tested positive. A good CDC reference for employers” – East Coast Risk Management
Q. What should we do if one of our employees has had contact with a person with COVD-19 symptoms or someone who has tested positive for COVID-19?
A. “Employers should review the risk categories established by the CDC and develop a response based on that guidance. This CDC guidance ultimately puts employees into a risk category based on symptoms, travel, and level of contact with a symptomatic individual. If there is a risk that the employee’s contact with another person puts them at risk of contracting COVID-19, the employer should send the employee home and require them to stay home until they are able to return under CDC guidance. The CDC risk assessment guidance can be found here.” – East Coast Risk Management
Q. How much information may an employer request when an employee calls in sick to work?
A. The EEOC has issued guidance, Pandemic Preparedness in the Workplace and the Americans With Disabilities Act, that explains during a pandemic, ADA-covered employers may ask such employees if they are experiencing influenza-like symptoms, such as fever or chills and a cough or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA. They may also require the employee to undergo medical testing before returning to work.
Q. When may an employer take the body temperature of employees during the COVID-19 pandemic?
A. While under normal circumstances, measuring an employee’s temperature is considered a medical exam and prohibited under the ADA, employers may now measure employees’ body temperature. However, the practice needs to be consistently applied and employers need to know that some people with COVID-19 do not have a fever, and not all fevers are COVID-19 related. The risks to the worker taking temperature must be evaluated and proper PPE provided to minimize the hazard. OSHA offers guidelines.
Q. What are the most effective cleaning products to sanitize our facility?
A. The Environmental Protection Agency has added nearly 200 registered disinfectants to an online list of cleaning products that can help prevent and reduce the spread of the coronavirus and has made the list sortable, searchable and printable. Employers must also ensure workers are trained on the hazards of the cleaning chemicals used in the workplace and maintain a written program in accordance with OSHA’s Hazard Communication standard (29 CFR 1910.1200) and to provide proper PPE and training, when necessary. If this is a non-typical task for an employee, they must be trained at the time of their first assignment.
Q. When employees return to work, can employers require medical documentation?
A. Yes, however, as a practical matter, doctors and other health care professionals may be too busy to provide such documentation in a timely way. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, or an e-mail to certify that an individual does not have the pandemic virus. A best practice would be to follow CDC guidance and instructions from public health authorities.
Q. Do we need to report a confirmed or suspected case of coronavirus to the CDC or local health department?
A. No, the health care professionals will handle the reporting requirements.
Workers’ Comp – experience mod and audit considerations
Q. If a Comp claim is accepted will it go on the experience mod?
A. As it stands, yes. This question came up when Cause of Loss codes were updated this week to include a code for COVID-19. Every injury has a Cause of Loss code. It’s how rating bureaus and other agencies track what types of injuries are happening. Except for the code for claims arising from the 9/11 attacks, none of them have been given special treatment in experience rating.
It is worth noting that it was March 2002 before the rules relating to excluding 9/11 claims were approved. If rules excluding COVID-19 claims are coming, we would expect them well after the outbreak is considered over.
Q. If a business continues to pay non-working employees, will it count on the audit? Also, will the pay employees receive under the newly passed laws for sick time or FMLA benefits count on the audit?
A. Probably so. A few states (Oregon, South Dakota, Kansas) have rules that allow for the exclusion of sick time and vacation pay.
Rule 2.F.2 of the NCCI Basic Manual allows for the reallocation of payroll for KEY employees of construction or stevedoring risks who are paid despite the business being idle. This rule is primarily used when a business goes through a seasonal shutdown but retains a few key employees who may work in the office or may not work at all. Moving their payroll to 8810 is permissible. Per communication with NCCI this week, this rule does NOT apply to any other type of business. Idle time is classified the same as being at work.
Our recommendation: EVERY business in either of these situations should keep a close accounting of the money spent. If the rules change in the future, only those with the appropriate records will be able to take advantage of them.
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