Prevent Lawsuits from Healthcare Employee with COVID-19 Symptoms

Effective April 1 through 2020, your practice will violate government employment regulations related to how to manage employees who have COVID-19 symptoms unless you get a handle on the new laws outlined in the Families First Coronavirus Response Act (FFCRA). Break it or other emergency guidelines, and you’ll face costly penalties and lawsuits.

Answers to your toughest questions: The following advice is from employment law experts Kevin Troutman, Esq, and Lariza Hebert.

Question & Send COVID19 Symptomatic Workers Home

COVID-19 and the seasonal flu have many of the same symptoms including fever and cough. While you could normally allow a mildly ill employee to continue to work in your office, pandemic guidelines don’t permit this leniency.

The Centers for Disease Control (CDC) guidelines state if an employee is showing any symptoms compatible with COVID-19 (fever, cough, shortness of breath), you should immediately separate them from other employees and patients and send them home for the 14-day COVID-19 incubation period.

You can take this action without having a COVID-19 positive test confirmation. You can also query the employee about any observed symptoms. While privacy rights would usually restrict you from asking questions about an employee’s health, the pandemic declaration changes that. The Americans with Disabilities Act (ADA) permits you to:

ask employees if they are experiencing symptoms of the pandemic virus
allows employers to require employees who show symptoms of COVID-19 to stay home.

Decide Leave Payment for Symptomatic Employees to Stay Home

You might expect an ill employee would like to recoop at home, but an employee who has no available PTO might resist due to financial loss. You can’t safely let your employee remain at work with symptoms, so plan ahead and update your leave policy in your employee contracts. Here are some options:

Good will: Follow suit with other corporations such as Walmart and Home Depot that are providing their employees with additional paid sick time in response to COVID-19. This may initially hurt your bottom line but, especially during a pandemic, it sends a message to your employees that you support them.
Pay it forward: Offer to let employees accrue a negative PTO balance and deduct it when their new PTO rolls around. While not the most desirable solution for employees, it could help both you and staff balance staying home and getting paid.
Remote work: Determine if the employee can work from home. This could be win-win as the job would still get done, your employee could still get paid, and you could minimize the risk of spreading infection until you know your employee isn’t a risk.

Support Your Home Requirement with Legal Guidelines

Prevent your employee from filing an HR compliant or a lawsuit by clearly explaining the legal grounds that support your action. Reference the legal guidelines that your decision is based on and provide a written policy that lists the legal authorities. Include the following guidance:

Establishes Leave Guidelines: The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace. It also provides guidelines for when a healthcare worker who has tested positive for COVID-19 should and can return back to work.
Enforces Guidelines on Employees: The Equal Employment Opportunity Commission (EEOC)’s Pandemic Preparedness in the Workplace requires employers to follow recommendations from the CDC and state and local public health authorities on how to slow the spread of this disease and protect workers, customers, clients, and the general public.
Permits Questioning: The ADA permits you to ask employees if they are experiencing symptoms of the pandemic virus. The ADA allows employers to require employees who show symptoms of COVID-19 to stay home.
Allows Return Approval: You can require a physician’s note indicating the employee is fit for duty, or proof that an employee tests negative for COVID-19. You can also allow an employee back to work after they fulfill a symptom-free 14-day quarantine.

Record COVID-19 Illness for OSHA Reporting

Don’t forget about OSHA requirements that mandate that you record certain work-related illnesses. Here’s when you need to record a COVID-19 employee illness on your OSHA 300 log. According to OSHA, “COVID-19 can be a recordable illness if a worker is infected as a result of performing their work-related duties.” But you are required to record COVID-19 cases only if the case meets all of the following criteria:

The case is a confirmed case of COVID-19,
The case is work-related, as defined by 29 CFR 1904.5, and
The case involves one or more of the general recording criteria set forth in 29 CFR 1904.7 (e.g. medical treatment beyond first-aid, days away from work).

Tip: For more information, visit OSHA’s Injury and Illness Recordkeeping and Reporting Requirements page

For more information on how your practice can avoid costly penalties due to noncompliance with the FFCRA, Kevin Troutman, Esq, and Lariza Hebert are presenting a live online training session. This upcoming online training will breakdown the FFCRA legal policies you need to know (i.e. paid leave, sick and medical leave, remote work, privacy concerns, and quarantines). This upcoming training will help your practice continue to see patients and comply with these newly-released employment-related rules. Plus, both experts will be available to answer your specific questions during the training.