Client Advisory: COVID-19
Updated: Mar 13, 2020
Amid growing concerns surrounding the Coronavirus pandemic, we have prepared the following recommendations for how municipal employers should manage personnel issues during this time. This pandemic presents us with issues and challenges that have no clear answer under existing statutes, policies or collective bargaining provisions. This memo is intended to address some common concerns that have arisen, but we anticipate there will be other issues that will need to be addressed as this emergency situation continues to evolve.
If you are not a client of Clifford & Kenny, please consult your Town or City Counsel before implementing any new policies or procedures. If you wish to consult with Clifford & Kenny on this or any other matter, please contact us at (781) 924-5796 or submit your inquiry here.
Employees Exhibiting Signs of Illness
If an employee arrives at work exhibiting symptoms of pandemic influenza, employers are permitted to ask the employee to go home. Asking an employee to go home due to risk of pandemic influenza is not a disability-related action under the Americans with Disabilities Act (ADA). Employers should exercise caution when questioning employees about their potential illness. Employers are permitted to ask an employee if they are experiencing influenza-like symptoms or if they have been exposed to pandemic influenza during recent travel. Under the ADA, employers may not ask about medical conditions that may make employees’ especially vulnerable to pandemic influenza or make any other disability-related inquiries. Employers remain obligated to keep employees’ medical information confidential.
Although municipal employers are permitted to ask for a physician’s note from employees returning to work after illness, the Center for Disease Control (CDC) recommends against this practice during a pandemic. Health care providers may be overwhelmed and unable to provide a note, and uninfected employees who were quarantined could be exposed to infection by visiting their health care provider to obtain a doctor’s note.
It is likely that remote work will be necessary in the near future. In order to prepare for this possibility, each Department Head should prepare a list of all of critical functions and identify which duties can be done remotely. Employees who request to work remotely should obtain prior approval from their Department Head. Cities and towns should work with their Information Technology department to ensure that employees who are responsible for critical remote work have the proper access and are able to successfully log in to necessary software.
Sick Leave and Other Paid Time Off
Employees will be taking time off from work for reasons that may not be specifically addressed under existing personnel policies or provisions of the relevant collective bargaining agreement. While it is clear that an employee who is ill can take time off from work using sick leave, employees under quarantine who are asymptomatic should also be given access to sick leave. Many collective bargaining agreements contain provisions limiting use of sick leave for a family member that is ill, or what is commonly referred to as “family sick leave.” We recommend that employers consult with union leadership and discuss a temporary waiver or suspension of such limitations, with an acknowledgment that such waiver or suspension does not constitute a past practice or precedent.
We anticipate that some employees may not be comfortable coming to work in a public building due to possible exposure, even if they are not sick or under quarantine. As is the case with family sick leave, employers may wish to adopt temporary modifications to policies or collective bargaining provisions to allow for such absences.
We recommend opening an informal dialogue with the leadership of all municipal unions at the earliest opportunity. Issues involving use of sick leave or other paid time off will arise, as will issues relating to the closure of public offices. Union leadership will also have legitimate concerns about employee safety and possible exposure. Establishing and maintaining a dialogue with union leadership during this crisis will help to avoid conflict.
Claims for injured-on-duty benefits under G.L. Ch. 41 § 111F should be evaluated on a case-by-case basis. Municipalities should not make any broad presumptions as to whether employee illnesses are job-related.
The Family and Medical Leave Act (FMLA)
The Family and Medical Leave Act (FMLA) contains specific provisions relating to the current pandemic. As a general rule, the FMLA must be applied consistently to all employees on leave for a serious medical condition or to care for a qualifying family member who has such a condition. Quarantines, whether voluntary or compulsory, are not necessarily covered under the FMLA, in the absence of a documented serious medical condition. If employers are considering issuing FMLA notices to employees absent from work during this emergency, we recommend that you contact us before issuing such notices.
As always, please feel free to contact us with any questions or concerns on this or any other matter.