INSTRUCTION LETTER TO MISSOURI EMPLOYERS RESPONDING TO COVID-19 EMERGENCY

March 17th, 2020

Dear Employer:

I have received numerous inquiries from my corporate clients as to what procedures should be implemented, and how to implement them, with respect to the recent and rapidly developing health crisis of COVID-19. This letter is intended to provide you general direction on this issue from a human resources/employment law perspective. However, should you have specific questions relative to your organization, please communicate those to me under separate cover so that I can provide you more specific instruction.

Under the Occupational Safety and Health Act, employers are required to provide a safe and healthful work place for their employees, which includes but is not limited to protecting employees against “recognized hazards” to safety or health which may cause serious injury or death. There is no specific section of the Act that references viruses or COVID-19, but OSHA will be relying on the Centers for Disease Control, the National Institute for Occupational Safety and Health, and the World Health Organization for direction on the severity of the health and safety threat and ways in which reasonable employers should be combatting the threat.

If you are an employer with high-risk or high-exposure factors, including but not limited to healthcare providers, emergency responders, transportation or over-the-road workers, international workers, or mandatory or recent employee international travel, then please contact Heather Rooney McBride about developing a more robust plan with procedures for protecting your employees and mitigating liability risks.

If, however, you are a largely local or regional employer that is not high-risk or highexposure, I recommend you implement the following:

Actively encourage sick employees to stay home from work. Whether such employees will receive paid time off is, at present, and subject to the reference to FMLA below, going to be governed by your employee handbook policies and any specific exceptions to said policies that you as the employer wish to implement as you address this health crisis.

Please note that if you implement exceptions to your paid time off policies for COVID-19related issues, your exceptions need to be implemented in the same fashion with respect to all similarly situated employees. For example, you cannot give one manager paid time off because he was exposed to the virus and then not give another manager paid time off who has contracted the virus because the manager who is sick had previous write-ups in her file and in your view may not deserve the accommodation. That said, you could for example, choose to give all managers paid time off in connection with COVID-19 issues, and not give hourly/non-exempt employees paid time off. How you choose to address the compensation issue is, at least for right now, going to be more of a business decision than a legally mandated one.

Notwithstanding the foregoing, someone who has contracted the virus or whose immediate family member has contracted the virus will likely qualify for leave under the Family and Medical
Leave Act if you are an employer who is required to or who voluntarily provides FMLA benefits. The same paperwork as you require for FMLA in other circumstances may also be required in this circumstance, but there should be allowance for doctor’s notes/medical records to be provided after the fact, and leave should be granted retroactively, because medical providers will likely be unable to respond with the turnaround that might previously have been expected for other types of medical issues.

Finally, an employee who contracted the virus and has residual effects from it may qualify as disabled under the Americans with Disabilities Act; I recommend you contact me in the event you receive any claim of disability or a request for special accommodations from an employee who suffered from the virus.

Instruct employees to advise a supervisor if they have been exposed to any known cases of COVID-19. Anyone who has legitimately been exposed, directly or indirectly, to a known case of COVID-19 should be sent home for a quarantine period. Anyone who has legitimately been exposed directly to a suspected case of COVID-19 should also be sent home for a quarantine period. There is no legally required quarantine period for exposed employees of private organizations who have been put on unofficial leave; however, the recommended period of time is 14 days from the last date of known or suspected exposure. I recommend a 15-[calendar] day mandatory quarantine just to ensure the full incubation period has been exhausted.

In addition to instructing employees to tell a supervisor if they have symptoms, have been exposed, or believe they may have been exposed, employees should also be encouraged to report to a supervisor the observance of any other employees who are believed to be suffering from symptoms.

Advise employees of limitations on their health information/privacy. Hopefully your employee handbook addresses certain limitations on your employees’ right to privacy already; if it does not, then you should contact me to discuss this issue further. Assuming it does, you should advise employees that the company is reserving the right to ask employees who are showing symptoms of the virus, as well as employees who were exposed to any other employees who showed symptoms of the virus (all as determined by a supervisor or management), to have their temperature taken, to wear a mask, and/or to go or stay home. If employees are showing symptoms and are sent home, those other employees who came into direct contact with the believed sick employee should be closely monitored and asked to wear a mask, or should also be sent home.

Please note that HIPPAA and other medical privacy laws do largely remain in effect in connection with this health crisis; thus, employees who remain at work who have questions about other employees who were sent home only need to be informed that the company is taking extra precautions with respect to employees who may have been exposed to the virus. Please use caution when discussing the health situation of any one employee with another employee, and providing details on any employee’s health status should be avoided.

Employees who refuse to come to work should be reminded of the company policies. What is becoming difficult for employers is those employees who, without known exposure or symptoms, are refusing to come to work. Unless the company wishes to make special
accommodations for such persons, which I do not advise, the employee’s attention should be turned to the employee handbook as it relates to paid and unpaid time off and any failure to report for duty.

How to monitor employees who have been permitted to work from home. With regard to employees who have been sent home who were exposed but are not actually sick, you may want to make accommodations for them to continue to work from home. Many employers already have remote or off-site working capabilities, but just keep in mind the importance of monitoring your and your customers’ and clients’ data. It is advisable to disseminate the existing company rules, or to provide a set of rules specific to this situation, concerning the transfer of company data to personal email addresses and/or saving such data on personal devices.

With respect to monitoring whether an employee is actually working from home, that should largely be approached in the same fashion as those policies you have in place for employees who work at the office; in other words, employees who are required to report their time still need to be required to do so, and employees who are not required to report their time still need to be able to show evidence that they performed work for the employer while they were at home.

Perform routine environmental cleaning. All employers should increase (and my recommendation is to double) the amount of cleaning and disinfecting activities being performed in the office environment. Disinfecting door handles, light switches, elevator buttons, phone receivers, keyboards, as well as all restroom appliances and eating areas, are just some of the ways in which employers can help reduce the likelihood of transmission of the disease.

In conclusion, while this correspondence is not comprehensive, and is not intended to be and should not be construed as instructive for your specific employment situation or environment, I trust this will be reasonably helpful to you in connection with procedures you may already have implemented or be in the process of implementing.

Should you have questions about this correspondence or wish to discuss specific situations further, please contact Managing Member, Attorney Heather Rooney McBride, at Rooney McBride & Smith, LLC, 417-708-9681, to schedule a phone conference.