Tuesday, March 10, 2020

Tips for Texas Employers Dealing with Coronavirus

By Casey Erick

"DO NOT PANIC!" was the advice my doctor gave me about the Coronavirus which was expected to hit the Dallas-Fort Worth area in late April-early May 2020, yet cases appeared in the Metroplex this week. Here is the practical advice my doctor added:

“Look, it’s a virus like the common flu. It will affect the elderly and people (children) with immunocompromised conditions. For some reason, like the chicken pox, it does not affect children as strongly as adults (referring to when chicken pox can manifest into shingles for those not vaccinated).” Everyone is going to react differently, of course, but panicking is not recommended.

 

What does this mean for employers in Texas?

 

Does Family and Medical Leave Act (FMLA) leave apply for employees or immediate family members who may contract Coronavirus?

Yes, assuming that the FMLA applies to the employer, Coronavirus would qualify as a "serious health condition" under FMLA, allowing an employee to take FMLA leave if either the employee or an immediate family member contracts the disease. The employee would be entitled to job reinstatement as well. State law may provide additional leave benefits.

 

Would I need to pay workers’ compensation for employees who contract Coronavirus?

Perhaps, if the employees contracted the disease in the course of their employment. Does the employees’ work require them to be exposed to persons who are infected? Typically, health care workers fall into this category. If an employee incidentally contracts the disease from a co-worker, there likely will be no workers’ compensation liability. If there is workers’ compensation liability, employers are responsible for covering the costs of reasonable and necessary medical care, temporary total disability benefits, and permanent disability (if any). Employers should engage a competent medical professional on infectious diseases for advice to determine whether the disease is work-related.

 

Would I need to pay my employees disability benefits if they contract the Coronavirus?

Yes, if such payments are provided in an employer’s benefit plan. Employers should review the limits of coverage in the benefit plan to ensure they have competent medical resources to administer the program.

 

Does the Americans with Disabilities Act (ADA) restrict how I interact with my employees due to the Coronavirus?

Not if it's a pandemic. The ADA protects employees with disabilities, but during a global health emergency, as recently declared by the World Health Organization (WHO), employees can be required to be medically examined to determine if they have contracted the disease when an employer has a reasonable belief that employees will pose a direct threat due to a medical condition. According to CNBC, on February 28th, WHO raised its risk assessment of the Coronavirus to its highest level.

 

The Equal Employment Opportunity Commission has issued guidance to distribute to the workforce in the event of global health emergency. In the guidance, it states, "If the CDC or state or local public health authorities determine that the illness is like seasonal influenza or the 2009 spring/summer H1N1 influenza, it would not pose a direct threat or justify disability-related inquiries and medical examinations. By contrast, if the CDC or state or local health authorities determine that pandemic influenza is significantly more severe, it could pose a direct threat. The assessment by the CDC or public health authorities would provide the objective evidence needed for a disability-related inquiry or medical examination."

 

Nonetheless, the CDC would not require a health care provider’s note even for employees who are sick with acute respiratory illness to validate their illness or to return to work. Health care provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely way, the CDC states.

 

The ADA protects from discrimination those qualified employees who have disabilities. A disability may be a chronic physical condition, such as difficulty breathing. Employees may be entitled to an “accommodation” such as leave or be allowed to work remotely for a limited period. Employees who have contracted the virus must be treated the same as noninfected employees, as long as the infected employees can perform their essential job functions. If the employee poses a health or safety threat to the workforce, the employer may place the employee on leave.

 

Additional resources on these topics may be found at: https://bit.ly/2TE40sX.

See our COVID-19 Quick Reference page for additional articles.

 

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