Social Distancing of Adults in the Community & Workplace - FAQs:

May employers treat essential/critical employees different than other employees such as providing transportation to and from work or giving them antivirals when there is a limited supply?

Yes, as long as you are following company policy and applying it in a nondiscriminatory manner. Remember you cannot discriminate on the basis of race, sex, age (40 and over), color, religion, national origin, disability, or veteran status.

Note: As an overall matter, employers should be guided in their relationship with their employees by federal, state, and local employment law, and by the company-specific application of these laws as reflected in employee handbooks, manuals, and contracts (including bargaining agreements).

Not all of the employment laws referenced apply to all employers or all employees, particularly state and local government agencies. For information on whether a particular employer or employee is covered by a law, please use the links provided for more detailed information. This information is not intended for federal agencies or federal employees -- they should contact the U.S. Office of Personnel Management (OPM) for guidance.

Could employers be held liable if employees are injured while teleworking?

If employees are injured while teleworking, they are entitled to file a workers’ compensation claim. Adjudication of that claim is based on the relevant State’s statute. It is beneficial to have a telecommuting agreement with employees that addresses the home inspection and health and safety issues and clearly states your responsibility in these matters. A training program and accompanying materials should provide information on how to create a safe workplace in the home. Note that the Department of Labor’s Occupational Safety and Health Administration does not conduct inspections of employees' home offices, will not hold employers liable for employees' home offices, and does not expect employers to inspect the home offices of their employees.

What kinds of information should be conveyed to employees to prepare them for the issues that are likely to be of concern to them should a pandemic occur? What is the best way to communicate this information?

Employees need to know what a pandemic influenza is, how it might impact them at work and at home, and how your workplace pandemic influenza plan will reduce exposure at work.

Communicating good hygiene and infection control practices will help keep your workforce healthy. You should share materials that educate employees on the fundamentals of pandemic influenza (e.g., symptoms of influenza, modes of transmission); personal and family response strategies (e.g., hand hygiene, coughing/sneezing etiquette, contingency plans); and community and workplace mitigation strategies (e.g., social distancing, provision of infection control supplies). Tools from the Centers for Disease Control and Prevention (CDC) to aid your communication, as well as Occupational Safety and Health Administration’s workplace safety and health guidance are available on Flu.gov. Remind employees of the resources available to them, e.g., Employee Assistance Programs, vendor provided benefit counseling, etc.

Training employees on the workplace precautions in your pandemic influenza plan and how/when to implement them during a pandemic will ensure that everyone in your workplace is prepared. Proactive communication will also help gain employee trust, and prevent employee fear, anxiety, rumors and misinformation. Ensure that your communications are culturally and linguistically appropriate. There are various platforms of communication, and the best ones for your employees will depend upon your business. Hotlines, dedicated Web sites, brochures, posters, and telephone trees are just a few ways to communicate pandemic status and actions to employees in a consistent and timely fashion.

Also, as part of your pre-pandemic planning, you may want to consult with your bargaining unit representatives if you have a labor union.

Not all of the employment laws referenced apply to all employers or all employees, particularly state and local government agencies. For information on whether a particular employer or employee is covered by a law, please use the links provided for more detailed information. This information is not intended for federal agencies or federal employees -- they should contact the U.S. Office of Personnel Management (OPM) for guidance.

What changes should be made, if any, to employee travel and what should be done to ensure employees living abroad are prepared for a pandemic?

Pandemics have a global effect. To ensure the safety of your off-site and international employees, it is essential that you monitor pandemic activity and understand unique travel restrictions, closures, and quarantine policies in areas where your staff travel and operate. Unessential travel to areas with high transmission rates should be discontinued during a pandemic. Quarantines and border closures need to be evaluated before making decisions about all business-related travel. The starting point in ensuring the safety of employees abroad is to always know where they are and be able to communicate with them to convey health and safety information.

The ability to assist Americans abroad may be limited by restrictions on local and international movement imposed for public health reasons by the U.S. or foreign governments. Communicating to employees abroad about how they can prepare for a pandemic, including information about stocking food, water and medical supplies and understanding their options for accessing medical care, is essential. It is also important to examine the insurance provisions for employees abroad, as well as arrangements for repatriating them.

Not all of the employment laws referenced apply to all employers or all employees, particularly state and local government agencies. For information on whether a particular employer or employee is covered by a law, please use the links provided for more detailed information. This information is not intended for federal agencies or federal employees -- they should contact the U.S. Office of Personnel Management (OPM) for guidance.

Should employers encourage employees to obtain seasonal flu vaccines and offer them in the workplace?

Yes -- although a seasonal flu vaccine won't protect against a newly emergent pandemic influenza, flu shots can help individuals stay healthy. Providing employees with educational information on the benefits of flu vaccines and posting this information in the workplace will also serve as a reminder to employees to get their shots. Employers should keep track of annual influenza vaccinations for employees to determine the overall health status of their workforce. Under the Americans with Disabilities Act¹ (ADA) employers are required to keep employees’ medical information confidential (i.e., maintained on a separate form and in a separate medical file).

Employers that wish to offer flu vaccinations in the workplace may do so as an employee health program under the ADA. Employee health programs must be offered on a voluntary basis.

Not all of the employment laws referenced apply to all employers or all employees, particularly state and local government agencies. For information on whether a particular employer or employee is covered by a law, please use the links provided for more detailed information. This information is not intended for federal agencies or federal employees -- they should contact the U.S. Office of Personnel Management (OPM) for guidance.

Are employers required to provide employees with infection control supplies and personal protective equipment (PPE) to prevent or slow the transmission of influenza?

Workplace safety law requires employers to provide a workplace free from hazards likely to cause death or physical harm. The Department of Labor’s Occupation Safety and Health Administration has provided detailed guidance on how to protect workers during flu season (Guidance on Preparing Workplaces for an Influenza Pandemic).

Employees who perform certain types of healthcare tasks for patients who may have the flu, may be at a higher risk of exposure to the seasonal flu virus at work. Precautions include using a combination of safe work practices and personal protective equipment (PPE) to reduce exposures to workers who are at high risk. Where the employer has evaluated the work site and determined that PPE is required to be worn by employees, it is the employer’s responsibility to assure that PPE is provided at that site. For guidance on selecting PPE, employers can consult the OSHA’s guidance referenced above.

There are various levels of control that can be used to protect employees who are at a higher risk of exposure including, engineering controls, work practices, administrative controls, and PPE. Some examples of these controls include: modifying patient intake, triage, and other service areas to increase space between workers, coworkers, and patients (e.g., installing sneeze guards or partitions), promoting personal hygiene measures, and use of gloves or other PPE. Employers will need to use a combination of these controls its protect employees. Signage in common areas around the workplace encouraging and explaining how to use these controls may increase awareness and good hygiene behavior.

Employers should also educate their workers about good hygiene and infection control practices.

Do OSHA’s regulations and standards apply to the home office? Are there any other Federal laws employers need to worry about if employees work from home?

The Department of Labor’s Occupational Safety and Health Administration (OSHA) does not have any regulations regarding telework in home offices. The agency issued a directive in February 2000 stating that the agency will not conduct inspections of employees' home offices, will not hold employers liable for employees' home offices, and does not expect employers to inspect the home offices of their employees. If OSHA receives a complaint about a home office, the complainant will be advised of OSHA's policy. If an employee makes a specific request, OSHA may informally let employers know of complaints about home office conditions, but will not follow-up with the employer or employee.

Employers who are required to keep records of work-related injuries and illnesses will continue to be responsible for keeping such records for injuries and illnesses occurring in a home office.

The Fair Labor Standards Act (FLSA) and its implementing regulations do not prevent employers from implementing telework¹ or other flexible work arrangements allowing employees to work from home. Employers would still be required to maintain an accurate record of hours worked for all employees, including those participating in telework or other flexible work arrangements; and to pay 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 to non-exempt employees.

Employers are encouraged to work with their employees to establish hours of work for employees who telework and a mechanism for recording each teleworking employee’s hours of work. Non-exempt employees must receive the required minimum wage and overtime pay free and clear. This means that when a covered employee is required to provide the tools and equipment (e.g., computer, internet connection, facsimile machine, etc.) needed for telework, the cost of providing the tools and equipment may not reduce the employee’s pay below that required by the FLSA. (See the U.S. Department of Labor, Employment Standards Administration’s Wage and Hour Division for additional information or call 1-866-487-9243 if you have questions.)

Under the Americans with Disabilities Act, telework could be a reasonable accommodation the employer would need to provide to a qualified individual with a disability, barring any undue hardship. However, an employer may instead offer alternative accommodations as long as they would be effective. (See the U.S. Equal Employment Opportunity Commission’s publication, Work at Home/Telework as a Reasonable Accommodation, for additional information.)

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¹For purposes of this discussion, telework does not include industrial homework as defined in the FLSA. Industrial homework means the production of goods by a person for an employer in or about the person’s home. Certification from DOL is required for the performance of industrial homework in seven specific industries: women’s apparel; jewelry manufacturing; knitted outerwear; gloves and mittens; button and buckle manufacturing, handkerchief manufacturing and embroideries.

During an flu pandemic, can a healthy employee refuse to come to work, travel, or perform other job duties because of a belief that by doing so, he or she would be at an increased risk of catching the flu?

The circumstances under which employees have a right to refuse to work are very limited. Refusing to do a job because of potentially unsafe workplace conditions is not ordinarily an employee right under the Occupational Safety and Health Act (OSH Act). (A union contract or state law may, however, provide for such rights.) Employees may refuse an assignment only if:

(1) they reasonably believe that doing the work would put them in serious and immediate danger;

(2) they have asked their employer to fix the hazard;

(3) there is no time to call the Department of Labor’s Occupational Safety and Health Administration (OSHA); and

(4) there is no other way to do the job safely. Employees are not protected for simply walking off the job.

An employer can impose disciplinary action for refusing to work. However, employees do have the right to refuse to do a job if they believe in good faith that they are exposed to an imminent danger. "Good faith" means that even if an imminent danger is not found to exist, the worker had reasonable grounds to believe that it did exist.

In addition, employers should be aware that an employee’s inability to attend work or perform certain duties could be related to a disability. In this instance, the employer may need to consider the implications of its actions under the Americans with Disabilities Act¹ before proceeding. For example, if an employee with a disability could safely perform the essential functions of the job with a reasonable accommodation (e.g., telework, changes in shift times), then an employer would need to provide the accommodation, in lieu of termination, unless it would pose an undue hardship. (See the U.S. Equal Employment Opportunity Commission’s Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act for additional information.)

We would encourage employers to prepare a plan of action specific to your workplace. As a practical matter, employers will likely want to be flexible regarding attendance during a pandemic. It would also be prudent to notify employees and, if applicable, their bargaining unit representatives about decisions made at the earliest feasible time.

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¹The EEOC enforces Title I of the ADA. The ADA’s provisions in regards to disability-related inquiries, medical examinations, and confidentiality apply to all applicants and employees of covered employers, regardless of whether those individuals have disabilities, as defined by the ADA. By contrast, other ADA requirements apply only if an applicant or an employee is an individual with a disability under the ADA.

It cannot be definitively established in advance, however, whether a future pandemic influenza would rise to the level of a disability under the ADA. Therefore, this answer provides guidance for employers that would comport with the ADA even if a future pandemic illness was found to be an ADA disability.

Social Distancing of Adults in the Community & Workplace - FAQs:

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