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As the impact of the Coronavirus (COVID-19) continues to spread across the U.S., employers are coming to grips with its effects on the workplace. The uncharted territory of the pandemic presents new challenges for employers. Health and safety are of foremost concern. When addressing those concerns, employers should remain conscious of their duties under various workplace laws.

On March 11, 2020, the World Health Organization (WHO) declared that the COVID-19 virus had reached pandemic levels. Why is this terminology important? Classification of the virus as a pandemic provides objective evidence from health authorities that the virus is at a level which presents a direct threat to human health. With the virus at pandemic levels, guidance from the EEOC regarding disability-related inquiries shifts to a different analysis. Under typical circumstances, such as a seasonal flu outbreak, employers are usually not allowed to make disability-related inquiries. Under pandemic conditions, the direct threat to employees’ health justifies measures such as inquiring about an employee’s symptoms, his or her recent travel, or requiring a medical examination before returning to work.

Employers often question the term “direct threat.” Under the Americans with Disabilities Act (“ADA”) a “direct threat” is “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” Assessments of whether an employee poses a direct threat in the workplace must be based on objective, factual information, “not on subjective perceptions . . . [or] irrational fears” about a specific disability or disabilities. The EEOC’s regulations identify four factors to consider when determining whether an employee poses a direct threat: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that potential harm will occur; and (4) the imminence of the potential harm.

EEOC guidance advises that during a pandemic, employers should rely on the latest information from the Centers for Disease Control (CDC) as well as from state or local public health assessments. The EEOC recognizes that public health recommendations may change during a crisis and may differ between states. Employers are expected to make their best efforts to obtain public health advice that is contemporaneous and appropriate for their location, and to make reasonable assessments of conditions in their workplace based on this information.

In the weeks ahead, employers will also be called upon to address Coronavirus-related absences. Three things are key: maintaining regular communication with your workforce, addressing each situation with an added degree of flexibility, and understanding the requirements of existing federal and state leave laws.

For employers with 50 or more employees, much of the analysis will involve working within the standards of the federal Family and Medical Leave Act (“FMLA”). Time should be spent now revisiting the FMLA’s core provisions should be reviewed with an eye to applying them to any future spike in employee absences due either to the health issues of the employee or of his or her immediate family members.

Employers with fewer than 50 employees must reacquaint themselves with Maryland’s laws on leave for family illnesses, parental leave, and sick and safe leave. These three statutes set standards on when employees can take time off to care for themselves and their family members.  In some cases, these laws permit both time off and the use of existing leave balances to cover the absence.  In other situations, these laws permit absences that extend beyond most employer leave policies.

Existing Maryland law gives the Secretary of Health the authority to direct the evaluation and quarantining of individuals and groups of individuals. If your employee is directed to quarantine, you will want to obtain information about the terms and duration of the isolation. Maryland law prohibits the discharge of an employee who is under an order of isolation or quarantine.

You may have heard that the government is thinking of permitting quarantined employees to apply for unemployment benefits. As of this post, the specifics of such a program have not been fleshed out.  We will provide an update if and when the terms of such a benefit are made public.

As this public health situation develops, the Labor and Employment Practice Group at Ferguson, Schetelich & Ballew will continue to advise and assist employers on how best to address workplace issues consistent with federal, state, and local workplace laws.

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