Coronavirus (COVID-19) Leave of Absence Considerations
March 6, 2020
Introduction

The emergence and spread of the coronavirus disease (COVID-19) has elicited myriad reactions on all fronts. While companies are struggling to forecast the economic impact, they must also manage immediate business needs and at the same time demonstrate care for the well-being of their employees. We have all seen the first-level precautionary advice on reducing the spread of the virus such as amplified hygiene and cleaning practices, limited contact with large groups of people, and travel restrictions, but employers must also prepare for employee absences that may be a necessary component of any business continuity plan.

Developing a “Coronavirus Leave” Policy

MMA ADL’s Absence, Disability and Life (ADL) practice has been in close contact with our customers to see how they are responding to this issue and provide assistance where possible. This collaboration, in conjunction with advice from legal counsel, has resulted in the following points to consider in developing a “quarantine” policy focused on coronavirus or other infectious disease.

Policy Design

Keeping in mind that a company’s industry or business needs may warrant adjustments in approach, the basic outline of a quarantine policy may be as follows:

    1. Employees should be informed around when and how to notify management of potential or confirmed exposure. Managers should be provided with guidance on next steps in either scenario.
    2. If an employee has been exposed, or fears they may have been exposed, to someone with coronavirus, the employee will be required to work from home for a 14-day period to monitor whether symptoms develop.
        • This could be extended to include employees returning from international travel.
        • Special consideration may need to be given for essential personnel who cannot work from home, such as an alternative work location.
        • Additional considerations should be made for non-essential employees that do not have the option to work from home.
    1. If no symptoms develop the employee should follow the employer’s normal return to work process.
    2. If symptoms develop the employee should follow the employer’s process to apply for Short Term Disability (STD), FMLA and/or any applicable company leave.
        • Note that the diagnosis may or may not qualify under STD; normal plan rules and requirements would apply.
        • If the virus was communicated in the course of the employee’s regular job, the absence could fall under Workers’ Compensation. If the employee contracted the virus at work, but incidentally, Workers’ Compensation likely would not apply.
        • The U.S. Equal Employment Opportunity Commission (EEOC) has stated in recent guidance (see below under ADA/ADAAA) that employers are justified in requesting return to work certification from a doctor before permitting employees to return to the workplace. In addition, due to demand that may result from an increased need for health care providers it is suggested that employers may attempt a “new approach” for this certification. Employers will want to engage their disability insurers and leave administrators in determining what will satisfy the requirement (e.g., certification from a telemedicine provider, etc.).
Quarantine – to Pay or Not to Pay?

If an employer’s existing leave policies do not provide for paid leave under these circumstances, the employer can require employees to use accrued sick time, vacation or PTO for the days they must stay home, and may require exempt employees to make up lost work time. Employers may want to consider adjusting existing time off or leave programs, or creating a separate paid policy, to support employees who must stay at home.

Be Conscious of Compliance

Employers should take care that any policy developed complies with the requirements of various employment laws:

Family and Medical Leave Act of 1993 (FMLA): Coronavirus would qualify as a “serious health condition” under FMLA, so FMLA procedures should be followed for eligible employees who have been diagnosed. Leave for an employee without an actual coronavirus or severe flu diagnosis should not be designated FMLA. Comparable state laws may provide additional leave benefits.

Americans with Disabilities Act (ADA/ADAAA): Leave or work schedule changes could be considered reasonable accommodations to alleviate physical or mental health impacts of the coronavirus threat. The U.S. Equal Employment Opportunity Commission (EEOC) has released a “preparedness” document to assist employers in identifying how and when the ADA might apply under pandemic circumstances; the document addresses:

    • Medical inquiries and requiring medical examination
    • The definition of “direct threat”
    • Requiring symptomatic employees to stay home
    • ADA-compliant practices prior to and in the event of pandemic:

–   What is ok and not ok to ask and require of employees

–   Requiring symptomatic employees to stay home

–   Providing new and maintaining existing accommodations

–   Requiring a doctor’s note to return to work

Fair Labor Standards Act (FLSA): Generally speaking, the FLSA does not require employers who are unable to provide work to non-exempt employees to pay them for hours they otherwise would have worked (note that a CBA or other contract may alter this). Salaried exempt employees must receive their full salary in any week in which they perform any work, with limited exceptions.

The Department of Labor’s webpage dedicated to Pandemic Flu and the Fair Labor Standards Act further clarifies that the FLSA and its implementing regulations do not prevent employers from implementing telework or other flexible work arrangements. If these arrangements are allowed, employers must pay non-exempt employees no less than the minimum wage for all hours worked and to pay at least one and one-half times the employee’s regular rate of pay for all hours worked over 40 in a workweek.

HIPAA: Circumstances surrounding a pandemic do not excuse employers from their responsibility to protect their employees’ privacy under HIPAA. However, a recent bulletin released by the Department of Health and Human Services (HHS) states that “appropriate uses and disclosures of the information still may be made when necessary to treat a patient, to protect the nation’s public health, and for other critical purposes”. The full guidance, which features additional resources for information, can be found on the HHS’ Emergency Situations webpage.

Inform Your Workforce

Employers are required under the Occupational Safety and Health Act’s (OSHA) general duty clause to provide their employees a place of employment “free from recognized hazards that are causing or are likely to cause death or serious physical harm”.  It is imperative that employers develop a solid action plan to protect their employees from the spread of infectious disease. Available resources and benefits, plus what is expected of employees themselves, must be clearly communicated.  It is recommended that established policies be posted in accessible areas and distributed to each employee as possible.

Additional Considerations

Employers are also advised to:

    • Work with all benefit plan carriers and vendors to ensure that any “actively at work” requirement included in a contract or agreement features an exception for employees on quarantine leave, thereby maintaining employees’ active status and benefits eligibility during this period.
    • Contact vendors who manage Business Travel Accident and travel assistance programs to see what may be available to employees who are away from home including evacuation support and get clarification/confirmation on what exclusions may exist so you can plan accordingly.
    • Remind employees of and encourage them to utilize existing resources to help them navigate a situation that is (or may become) challenging, such as Employee Assistance Programs (EAP), programs available through their medical carrier and even how to leverage telemedicine.
    • Consult the following resources for additional information and developments:
Conclusion

As the full impact of this current threat is yet unknown, employers are strongly advised not to take a “wait and see”’ approach, but to put policies and processes in place to help their organizations weather this, and potentially any future, storm. These decisions should include multiple disciplines within your organization as it relates to broader risk and talent management strategies.

For additional information, please visit MarshMMA.com Coronavirus Outbreak Information

We’re here to help. MMA ADL’s absence, disability and life experts are constantly developing innovative employee-benefit solutions to maximize workforce productivity, ensure compliance and enhance the employee experience.

To learn more:

Email: [email protected] or visit www.trionadl.com

No part of this document may be reproduced, quoted, or transmitted in any form or by any means (electronic, mechanical, photocopying, recording or by any information storage and retrieval system), without express, prior permission, in writing from Marsh & McLennan Agency, LLC.

This document is not intended to be taken as advice regarding any individual situation and should not be relied upon as such. MMA ADL Group, a Marsh & McLennan Agency, LLC Company shall have no obligation to update this publication and shall have no liability to you or any other party arising out of this publication or any matter contained herein. Any statements concerning actuarial, tax, accounting or legal matters are based solely on our experience as consultants and are not to be relied upon as actuarial, accounting, tax or legal advice, for which you should consult your own professional advisors. Any modeling analytics or projections are subject to inherent uncertainty and the analysis could be materially affective if any underlying assumptions, conditions, information or factors are inaccurate or incomplete or should change. Copyright © 2020 MMA ADL Group, a Marsh & McLennan Agency, LLC Company. All rights reserved.