A legal primer for coronavirus in the workplace

Arizona Coronavirus Update:

• As of March 11, 100 people have been tested in Arizona. Nine have been confirmed or presumed to have the virus.
• Family and friends should limit visits to nursing homes, state public health officials said. 
• Two Canadian passengers who flew on WestJet from Phoenix to Toronto on February 28 have tested positive.
• Thousands to tens of thousands of cases expected, state health officials said.

[Editor’s note: The WHO on March 11, 2020 labeled the virus a pandemic.]

As more coronavirus cases surface in Arizona, there are legal issues that could arise in the workplace. Questions like, can an employee wear a face mask? Or can a manager demand to take an employee’s temperature?

Phoenix attorney Jessica Post, who heads the labor employment division at the Fennemore Craig law firm in Phoenix, offered up answers to the most likely scenarios.   

“The goal right now is to have businesses continue to operate, but also protect the safety and wellbeing of employees because everyone’s joint interest is that businesses continue to operate and employees continue to work,” she said. 

Post answered questions about workplace issues employers could face:

Q: If an employee asks to wear a face mask at work, can that request be denied?

A: Currently, yes. Right now, under certain circumstances, an employer could deny that request. 

OSHA (Occupational Safety and Health Administration) is the statute that applies here and there’s a process for when employees use face masks or respirators and that process needs to be set up in advance.

In the event that the virus is labeled a pandemic, there may be other advice in terms of employers being allowed to let employees use respirators or face masks or other protective equipment. 

Q: Do employees need to be paid for short-term workplace closures?

Hourly employees are paid by the hour, so if they don’t work they don’t need to be paid. 

For salaried employees, if they do any work in a particular week then they need to be paid. This is assuming there is no employment contract or bargaining agreement that could also apply.

Arizona has paid sick leave so employees have either 24 or 48 hours of sick pay they would be able to use.

Q: Can an employer take an employee’s temperature to determine if they have a fever?

No. Under the Americans with Disabilities Act, taking someone’s temperature is considered a medical exam, and employers are only allowed to do that under certain circumstances.

Now, if an employee had traveled to one of the Level 3 countries (where viruses are most prevalent) or there was reason to believe an employee had corona virus — other than just a suspicion — then an employer may be able to require it.

This issue arose before when the EEOC (Equal Employment Opportunity Commission) issued an advisory in 2009 with the H1N1 virus. It suggested that in the event that an illness becomes a pandemic, then employers would be able to take temperatures of employees as a measure of protecting a safe workplace environment.

As of right now, employers are not allowed to just take everybody’s temperature. This may change if the coronavirus is deemed a pandemic.

Q: Can employers require employees to travel if it is an essential function of the job?

A: As of right now, yes. If there’s an employee, say a salesperson, and their job is to travel around the country, then an employer could still require that. 

If an employer were to require somebody to travel to somewhere in China right now, then it would probably meet the standard under OSHA, which is that there’s a concern that the person would be in an unsafe environment

Q: Can employers prohibit employees from taking personal trips to countries disproportionately affected by the coronavirus?

Employers cannot. An employee is free on their personal time to do what they want. 

But if an employee travels to one of those (high risk) areas, the employer is certainly entitled to follow the CDC (Centers for Disease Control) and say that the employee is not allowed to come into the workplace for the appropriate quarantine time period. 

Q: Can an employer request a doctor’s note from employees who are sick and demonstrating flu-like symptoms?

A: Under Arizona paid sick leave, employers are only allowed to ask for a doctor’s note if an employee is absent for three or more days. 

If an employee has the coronavirus, then the employer is going to follow the CDC in terms of when a person is deemed to be clear of the virus and can return to the workplace. 

On a final note, Post said that employers should use sensitivity and calm in dealing with coronavirus issues. 

They also should take time now to spend with their Human Resources departments and operational staff to put plans in place to keep the workplace running and safe, allow employees to work remotely if need be, and follow guidelines issued by the CDC and other public health agencies for workplace safety, she said. 

“It’s not in anybody’s interest for businesses to cease operating. That doesn’t help employees or businesses,” Post said. “That’s why it’s important to use as much time as needed right now to develop some plans to keep operating.”