Over the last week, we have received several questions from AAA members about various COVID-19 impacts on EMS organizations. As the infection numbers around the country are on the rise, many new issues have arisen that are posing issues with many EMS employers.
- Travel Orders
What can I do when our employee voluntarily chooses to travel out of state and, due to state level travel orders which require mandatory quarantine for 14 days upon their return, the employee cannot work and is seeking to be paid emergency leave under the Families First Coronavirus Act (FFCRA) or take additional unpaid leave during the quarantine period?
As an employer, you have several options. One of the most important things to know is that your employee does have to abide by any federal, state, or local quarantine order. However, this does not mean that the employer is helpless in addressing this the issue of employee voluntary travel. The last few months have been incredibly trying on all of us, particularly those who are on the front lines battling the COVID-19 pandemic, it is understandable that employees are looking to take vacations out of state. While this is understandable, the employee is still making a decision that can impact their health and their employment, as well as, the health of their coworkers and patients.
Employer Option 1
As an EMS employer, the FFCRA specifically permitted EMS agencies the right to exclude emergency responders from the group of employees who are eligible to take emergency leave under the FFCRA. Despite this, many EMS employers have decided to provide their employees with emergency paid leave under the FFCRA. The employer can choose to pay the employee emergency leave under the FFCRA during the mandatory travel quarantine.
Employer Option 2
As stated in Option 1, the FFCRA specifically permitted EMS agencies the right to exclude emergency responders from the group of employees who are eligible to take emergency leave under the FFCRA. Most of those employers who have decided to provide emergency leave under the FFCRA, their intent was to provide the emergency leave to employees who, through no fault of their own, were exposed to COVID-19 and required to quarantine. However, an employer has the right to exclude some employees, such as those who decide to voluntarily travel outside state, and as a result, required to quarantine upon return. The key is to ensure that you have an established policy, it is applied consistently, and has been meaningfully communicated to your employees. This is the best practice for mitigating any discrimination or disparate treatment claims.
Employer Option 3
The employer can choose to discipline the employee for choosing to leave the state, despite the travel order. If an employee knowingly travels out of state, despite the existence of a mandatory travel quarantine order, the employer can discipline that employee for any quarantine related attendance issues. The employer cannot let that employee return to work unless they have abided by any travel orders. Several of the states who have issued orders, include an option to avoid a 14-day quarantine order if they have a negative COVID-19 test within three days of returning to their home state. Alternatively, they can end the 14-day quarantine period if they receive a negative test after returning to their home state.
Employer Best Practice
The best bet for employers is to contemplate the possible issues that could arise with your employees as a result of the local travel orders. Employers should draft a policy that delineates the work-related implications of employee travel. This policy should be communicated through multiple channels, and ideally, be acknowledged in writing by your employees. This will provide your employees with a clear understanding of the implications of deciding to travel out of state during the pandemic.
- COVID-19 Parties
Several member organizations have asked what actions they can or should take when they learn that an employee has attended a COVID-19 party. These events, which defy logic, particularly for those of us who consider EMS, healthcare and EMS personnel, healthcare workers, are parties where uninfected people go to a party with known infected people to mingle and see who becomes infected.
Under the General Duty clause of the Occupational Health and Safety Act (OSHA), an employer has an obligation to provide a workplace which is “free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees”. This includes if an employer is aware that there are employees who are engaging in behavior that may create a workplace hazard, like attending events such as a COVID-19 party.
If an employer discovers that an employee has attended an event like a COVID-19 party or a large scale event where protective measures were not taken, such as mandatory mask wearing and social/physical distancing, the employer has a duty to investigate and take action. This would include requiring that the employee remain out of work for the recommended quarantine time or upon a negative COVID-19 test. The employer could pay for this test but is not required to. If the employee voluntarily took part in this event and the exposure was not work-related, they would not be obligated to pay for the COVID-19 test.
For the many reasons stated above, the employer has an obligation to the rest of its workforce to ensure that this potentially infected employee does not expose the rest of the workforce. The employer would be justified in addressing this issue through their disciplinary process. As is always recommended, I recommend that employers communicate with their employees to let them know that the choices they make outside of the workplace have implications inside the workplace. While this should be obvious to our employees, not all operate by the same playbook.
Employers should be aware that there are state laws that limit the level at which an employer can dictate an employee’s “off duty” time. For example, an employer in New York cannot take work action against an employee for their personnel time political activities. However, an employer may address the employee if that off duty conduct involves their employee’s failure to be safe by wearing a mask and maintaining social/physical distancing while attending a political event or political-based protest. As previously mentioned, employers have obligation to provide a workplace that is free from “recognized hazards”.
Employer Best Practice
I recommend that employers consult with their local attorneys if they faced with taking work-related action for an employee’s off duty conduct if they are in a state with off duty conduct laws. The best way to ensure you protect your workforce is to ensure that the organization has a comprehensive policy and procedure manual that is updated every year. Additionally, all employees, including supervisory personnel, should sign an acknowledgement annually. Lastly, it is recommended that the organization highlight a few policies throughout the year. Specifically, I recommend that organizations log all incidents, complaints, and discipline to permit trending of workplace activity which suggest which policies and procedures need to be highlighted.