There has been a great deal activity and press coverage over the past few weeks relative to the Coronavirus (COVID-19). This activity has generated several questions from EMS organizations regarding how to handle the impact on the workplace. Healthcare workers have been identified by the Occupational Safety and Health Administration (OSHA) as a group of workers who are at an increased risk of exposure to COVID-19. There are many steps EMS organizations can take to best prepare their workplace and protect their personnel.
EMS agencies are already required to follow and maintain OSHA’s Infection Control Standards for Bloodborne and Airborne Pathogens (29 CFR 1910.1030). If EMS organizations and their employees are diligent in maintaining these standards, they will already be doing nearly everything that is being recommended for employers to combat the spread of COVID-19. The Centers for Disease Control (CDC) released their Interim Guidance for Businesses and Employers, which includes additional practical recommendations for employers to utilize to further combat the spread of COVID-19, including:
- Actively encouraging sick employees to stay home;
- Separating sick employees from the rest of the workforce;
- Encouraging workers to stay home when sick, respiratory etiquette, and hand hygiene by all employees;
- Performing routine environmental cleaning;
- Advising employees before traveling to take certain steps.
This guidance is intended to be a refresher for employers. The recommendations by the CDC are consistent with best practices for employers regardless of a potential pandemic. However, our workforce can become complacent and it is important that EMS organizations remind their teams to be diligent and have supervisory staff monitor for adherence to these practices and company policies.
Frequently Asked Questions
Over the past week there have been several questions posed by EMS organizations on employer related issues related to COVID-19. We thought we would share those questions and encourage members to reach out with questions not addressed in this FAQ. We will be sure to share those questions with members and will provide additional guidance as it becomes available.
Are there any limits to the medical questioning or screening of current or potential employees?
Yes, Employers are limited when performing medical screenings or making medically related inquiries of employees or job candidates regardless of the current COVID-19 virus concerns. Often, medical screenings or inquiries can identify medical conditions which are protected under the Americans with Disabilities Act (ADA). To the extent to which they are permitted, any medical inquiry or screening must be job related and consistent with business necessity. In those circumstances, any information must be kept confidential.
The Equal Employment Opportunity Commission (EEOC) re-released Pandemic Preparedness in the Workplace and the Americans with Disabilities Act which provides guidance for employers on how to prepare for a pandemic in the workplace while maintaining compliance with the ADA.
Employer Permitted Screening/Questioning
- Questions designed to identify non-medical reasons for work absences (such as public transportation interruptions)
- Post-offer medical examinations required of all similarly situated employees in same job category.
- During a declared pandemic, employers can ask employees if they are experiencing pandemic-like symptoms. Responses must be kept confidential, consistent with other employee-related medical information.
- Taking employee’s temperatures is permitted in a widespread pandemic but this may not be a reliable manner for identifying those employees ill with the COVID-19 virus.
- Employers can inquire about potential exposure to pandemic if the employee traveled to an area affected by the COVID-19 pandemic.
- Employers can ask an employee if the reason an employee missed work was for a medical reason.
What do we do if we have an employee who is concerned about exposure and wishes to miss work? Additionally, what if the employee’s concern is due to an underlying medical condition, such as pregnancy, and asks to stay out of work?
There are several important issues to address with both questions. First, employers need to review all company policies regarding leave from work to ensure compliance with the relevant leave laws including, leave as an accommodation under the ADA, Family and Medical Leave Act (FMLA), and state-level Paid FMLA or Sick Leave laws. Additionally, employers should review their policies regarding any other paid or unpaid leave to be certain that all policies clearly delineate how leave requests are handled under these policies.
For the most part, when an employee is seeking to miss work due to exposure concerns, employers should handle these requests as they would any other requested leave from work. This is where it is important to utilize your Human Resources (HR) professionals. HR can evaluate the request for leave to ensure that the reason the employee is requesting the leave isn’t due to an underlying disability under the ADA or a “serious health condition” under FMLA. In both instances, an employer has numerous obligations and may be required to approve the leave. In some instances, the employee could be seeking FMLA due to a family member who is ill with COVID-19 who they must care for. In these instances, employers would follow their normal FMLA practices.
As it relates to the first employee, the presumably healthy employee who is concerned with being exposed to COVID-19, any leave would be provided consistent with the employer’s attendance and time off policies. This is different than how you would address the employee who is pregnant and seeking to miss work due to concerns of virus exposure. Pregnancy and pregnancy related medical conditions can qualify as a “disability” under the ADA.
Pregnancy itself is not necessarily a “disability” under the ADA. Only when the pregnancy or a pregnancy related medical condition interferes with one or more major life activities, may it qualify as a “disability” under the ADA. Employers are required to engage in the “interactive process” to determine if the employee can be provided with a “reasonable accommodation” that would permit the employee to perform the essential functions of their position. A reasonable accommodation can include leave from work. It is important that you document these requests and the subsequent process to ensure consistent handling and record keeping.
These can be incredibly difficult issues to handle, especially with all the information and media attention surrounding this virus. Members who need assistance with these potentially challenging compliance issues can contact the AAA and its consultants for assistance.
What should we do if an employee is exposed to, or suspected of having contracted COVID-19?
OSHA has created a COVID-19 Resources Webpage to assist employers with planning and addressing employer issues related to the Coronavirus. In addition, the CDC’s guidance for employers provides recommendations and strategies to prepare for, and deal with, COVID-19 in the workplace. This includes how to address the employee-related aspects of this virus.
However, under the General Duty Clause of OSHA, employers must “furnish to each of his employee’s employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” This includes removing known hazards from the workplace, including sick or contagious employees.
Aside from the efforts to prepare and address exposures, employers have been seeking guidance from a workers’ compensation perspective and how to handle quarantines and exposures for employees. It is important to remember that an occupational exposure to COVID-19 is no different than any other occupational exposure. EMS organizations should be sure to do the following:
- Review their company policies relative to work injuries, exposures, and illnesses to be sure that they are clearly drafted and instruct both employee and supervisors what to do in the event of an exposure.
- Ensure you have reviewed the Infection Control and Bloodborne and Airborne Pathogens Standards and that your employees have access to, and utilize their Personal Protective Equipment (PPE).
- Confirm that there is adequate workplace postings and communications to ensure that all employees understand how to report any suspected occupational exposure.
- Confirm with all management personnel that they understand how to appropriately investigate any workplace exposure in collaboration with human resources or company safety or occupational health officer.
- Contact the Infection Control Officer at the healthcare facilities in your catchment area to ensure that they have the appropriate contact information for your service in the event that they need to contact your organization due to a known exposure.
- Contact the public health agency in your catchment area to ensure that your organization is engaged with public health officials in your service area to stay informed.
- Be sure that employees understand and are leaving a copy of the Ambulance Patient Care Report at a receiving facility at the time of transport to ensure that the receiving facility’s Infection Control Officer can notify the EMS organization in the event that an ambulance patient is later determined to have, or be suspected of having COVID-19.
- If an employee reports exposure to COVID-19, employers should notify their workers compensation insurance carrier to begin the claims process.
- In most states, being exposed to a contagious disease or illness is not itself compensable under workers’ compensation. To be compensable under most state worker’s compensation laws, the employee has to actually contract the contagious illness or disease and be able to show that the contagious disease or illness exposure occurred in the course of their employment. Some professions, such as healthcare, are inherently more likely to be exposed to the contagious disease or illness. Often, healthcare workers are still required to show a “but for” causation. If the employee can meet this burden, then the workers’ compensation claim for this illness will likely be compensable.
- Employees who have a workplace exposure and have been placed in quarantine or are being treated will be handled a bit differently. These exposures or illnesses would be handled like any other occupational exposure or illness. The employee should complete an Injury & Illness Incident Report form to ensure that the employer has all of the information needed to appropriately investigate and report the illness, both to their workers compensation insurance carrier and on their OSHA Log of Work-Related Injuries & Illnesses.
Can I make my employees stay home if they have been exposed or are exhibiting symptoms of COVID-19? If so, must I pay employees for the time missed?
Yes, generally you can require an employee to stay home from work. Employers have an obligation under the General Duty Clause of OSHA to provide a safe workplace for all employees. This would include protecting the health and safety of the other workers in your workplace.
The second part of this question will depend on numerous factors including, any applicable state paid leave laws, company sick or paid time off benefits, or other past company practices which paid employees for similarly missed time.
The bottom line, you must pay the employee consistent with any mandatory state sick leave requirements, paid company leave benefits, or consistent with any past pay practices for pay in such situations. The goal will be to treat the employee consistent with all federal or state laws, company policy, or past business practice. When employers treat similarly situated employee differently, they run the risk of potential discrimination claims.
Can I reduce staffing or require some workers to work from home or telecommute?
Yes, while most of the job duties performed by EMS organization workers are the kind that require presence at the workplace, there are some administrative positions that can be performed remotely or at home. In these instances, employers still have several things to consider before asking employees to work remotely.
First, employers who decide to have employees work remotely must ensure that the work performed remotely is done so in a compliant manner. For example, billing personnel working remotely will have to access Protected Health Information (PHI) during the course of performing their duties. It is important that the EMS agency ensures that the Administrative, Physical, and Technical safeguards required under the Privacy and Security Rule of the Health Insurance Portability and Accountability Act (HIPAA) are complied with in that remote setting.
Second, any FLSA non-exempt employee needs to continue to track all time worked to ensure the employer can accurately pay all employees. Employers must establish policies, to the extent that they do not already exist, that govern remote workers or telecommuting. Employers should review all existing organizational policies and ensure that they are adapted to address remote working or telecommuting. This includes addressing the steps employees need to take should they need to be absent from work, including how to “call out sick” or must miss work.
Third, employers need to ensure that employees who require an ADA reasonable accommodation in the workplace can still be provided that accommodation when working remotely, if needed. It is important for employers to remember that they are still required to comply with all work-related laws and regulations even for remote or telecommuting workers.
Do employers have to pay workers who are out of work?
That depends on the reason for the employee being out of work, your state law, and the employer’s policies.
Voluntary absence from work due to employee’s concern of future exposure?
Absent any state paid leave requirements, if the employee has voluntarily decided not to come to work due to their concern of exposure to the virus, then you would need to pay them consistent with your organization’s policy regarding paid time off. If the employee has no paid time off available, then the employer is not required to pay them.
There is nothing that prevents an employer from paying their employees if they choose to, but it is generally not required. Employers with labor unions should consult their collective bargaining agreements (CBA) for any paid time off provisions.
Voluntary isolation or quarantine following suspected exposure?
Generally, employees who are placed in quarantine due to exposure to COVID-19 are not compensable under most state’s workers’ compensation laws. Nothing prevents an employer from filing a claim with their workers’ compensation insurance carrier. However, it is highly unlikely that the insurance carrier will consider this a compensable illness or injury.
As stated above, absent any state paid leave requirements, if the employee does not come to work due to their exposure to the virus, then you would need to pay them consistent with any state-mandated paid time off or your organization’s policy regarding paid time off. If the employee has no paid time off available, then the employer is not required to pay them.
There is nothing that prevents an employer from paying their employees if they choose to, but it is generally not required. Again, employers with labor unions should also consult their collective bargaining agreements (CBA) for any paid time off provisions.
Employee absence due to acquiring or exhibiting symptoms of COVID-19?
If an employee misses work due to acquiring COVID-19 or exhibiting the virus’ symptoms, the employer should follow their normal work-related illness practices as provided under workers’ compensation. Whether the illness is compensable under workers’ compensation is determined under state workers’ compensation law. Typically, if an illness is compensable under workers’ compensation, the first several days are unpaid and can be paid under any state mandated sick or employer paid time off policy.
If the employee has no paid time off available, then the employer is not required to pay them. There is nothing that prevents an employer from paying their employees if they choose to, but it is generally not required. Employers with labor unions should also consult their collective bargaining agreements (CBA) for any paid time off provisions.
Does employee absence from work due to COVID-19 qualify for Family & Medical Leave under the Family & Medical Leave Act (FMLA)?
Generally, employees who exhibit a mild case of COVID-19, which does not require continuing treatment or hospitalization, it is highly unlikely that the individual’s condition would rise to the level of a “serious health condition” as defined under the Family & Medical Leave Act (FMLA) leave. If the employee has a more serious case of the illness, then the employee could qualify for job protected leave under FMLA. In that case, the employer should follow the required steps under FMLA, including furnishing the employee with a Notice of Eligibility and Rights & Responsibilities, Certification of Health Care Provider Employee’s Serious Health Condition, and subsequent FMLA Designation Notice as required under FMLA.
However, if the employee is caring for a parent or child with a serious health condition, the virus itself, or another underlying medical condition that is worsened by the virus, it may trigger job-protected leave under FMLA. Under FMLA, the employer would provide the employee the Notice of Eligibility and Rights & Responsibilities, the Certification of Health Care Provider for Family Member’s Serious Health Condition, and the Designation Notice and would handle consistent with FMLA. It is recommended that all employee leave is tracked and logged for record keeping purposes and to ensure consistent handling of leave requests.
Employee absences that are caused by their need to provide childcare due to their child’s daycare or school closure, would not trigger protected leave under FMLA. Such leave may be covered under an employer’s other paid or unpaid time off or leave policies or under state required paid or unpaid leave.
What options does an employer have when it comes to staffing shortages created by COVID-19?
Employers should set a staffing contingency plan and policies if the employer has difficulty with staffing due to a pandemic. This policy should be broadly communicated to all employees. Many EMS agencies have hold-over policies that provide that an employee may have to stay on duty for a subsequent shift due to staffing shortages.
In these instances, it is best practice to set parameters around these policies, including the circumstances under which the policy will be implemented, notice to the hold-over employee, and considerations for maximum continuous and total weekly working hours. In addition, the policy should provide for employee self-reporting and fatigue protocols which include non-retaliation protections for employees who express fatigue or safety concerns.
Employee who are held over must be paid consistent with federal, state, and local wage laws, including any applicable overtime provisions of the Fair Labor Standards Act (FLSA). Non-exempt salaried employees should be paid consistent with federal, state, or local overtime wage laws. FLSA Exempt employees do not have to be paid overtime for hours worked over forty (40) hours.
Employers who have a unionized workforce should refer to the Collective Bargaining Agreement (CBA) for any provisions impacted by hold-over or pay practices.
What can/should we do if an employee refuses to work with another employee due to concerns of exposure to COVID-19?
It is important for employers to learn or understand why this employee is refusing to work with the other individual. If the employee is refusing to work with the other individual because that individual is exhibiting virus-like symptoms, then that employee should not be in the workplace anyway. Under OSHA, employers have an obligation to furnish to employees a place of employment which is free from recognized hazards that are causing or are likely to cause death or serious physical harm to other employees. This would include exposure to employees suspected of having COVID-19.
Under OSHA, an employee is only entitled to refuse to work if they believe they are in imminent danger. OSHA has recommended actions for an employee to take if they believe performing the task or working would pose an imminent danger. The right to refuse work is protected if all of the following conditions are met:
- Where possible, you have asked the employer to eliminate the danger, and the employer failed to do so; and
- You refused to work in “good faith.” This means that you must genuinely believe that an imminent danger exists; and
- A reasonable person would agree that there is a real danger of death or serious injury; and
- There isn’t enough time, due to the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection.
You should take the following steps:
- Ask your employer to correct the hazard, or to assign other work;
- Tell your employer that you won’t perform the work unless and until the hazard is corrected; and
- Remain at the worksite until ordered to leave by your employer.
However, if the employee is refusing to work with the other employee because of their belonging to, or being a member of, a category of people who are protected under Title VII of the Civil Rights Act or one of the other anti-discrimination statutes, that would violate law and an employer would be required to address this behavior. It is equally important that employers monitor workplace behavior, and the treatment of their employees by individuals not employed by the EMS organization, to ensure that they are not subject to direct or indirect discriminatory actions. This includes patients who refuse to be treated by your EMS personnel due to discriminatory motives or fears.
Due to the nature of the work performed by EMS personnel and other healthcare workers, our workers are more likely than the general population to be exposed to workplace hazards, including viruses like COVID-19. It is important to remember that our teams face far greater a risk on a daily basis than those associated with this virus. Employers should remind their staff of the available benefits and services, such as Employee Assistance Programs, Support for Medics, Short-Term Disability, and available paid time off, should they wish to utilize them during this stressful time.
If we ensure that our employees are following our occupational safety practices and policies, they will significantly reduce the likelihood of workplace exposure or injury. This will not happen without every individual on the team taking ownership of fostering a culture of safety. Communication and monitoring are key to maintaining a safe work environment and significantly ease worker’s fears surrounding this virus.
As always, the American Ambulance Association and its team of staff and consultants can assist EMS organizations with these challenges. Be sure to visit the AAA website for more information.