During the current crisis, employers should closely follow current guidelines
April 14, 2020
Independent restaurant operators have long been wrangling with policies and procedures for sick employees, but the current coronavirus pandemic has escalated these issues to unprecedented levels.
Among the host of challenges wrought by this highly contagious and lethal virus is how an operator should respond if a worker has COVID-19 symptoms or tested positive for the virus. Information about coronavirus is relatively limited and has been evolving almost daily, resulting in rapidly changing recommendations from authorities about best practices to prevent its spread.
On April 8, the Centers for Disease Control and Prevention issued updated guidance allowing workers who may have been exposed to the virus but are not showing symptoms to return to work in essential businesses, including restaurants, if certain precautions are taken. Before that change, exposed workers had been required to isolate at home for 14 days, which is thought to be the period when an infected individual may be contagious without exhibiting symptoms.
While some longstanding federal regulations around work rules have changed significantly in light of the pandemic, operators must still protect the privacy of employees who test positive, according to industry experts.
“The most important piece is maintaining confidentiality, because of the Americans with Disabilities Act,” said Linda Addy, a human resources consultant with Portland Ore.-based HR Annie Consulting, and a former restaurateur. “We should be confidential and respectful and graceful in that process.”
Operators should alert local authorities that an individual has tested positive and follow their recommendations about whether the restaurant should be closed for cleaning and sanitization, she said.
In addition, other staff members should be notified — without naming the individual who has tested positive — and reminded of the proper procedures about preventing transmission.
Addy suggested operators refer to CDC guidelines that detail the various degrees of risk based on the type of exposure workers and others may have had to an infected person. The CDC offers a “self-checker” that employees can use to screen themselves.
In addition, for people who have symptoms, the CDC has a step-by-step guide that includes the advice to stay home and separated from others, rest and stay hydrated and stay in touch with a doctor.
Employers should also check with local authorities about any restrictions on employee screening and stay abreast of fast-changing regulations. When in doubt, err on the side of caution to maximize the safety of workers and the community, experts recommended.
Interviewed in early April, Tom Van Wyngarden, partner at the Los Angeles-based law firm Pillsbury Winthrop Shaw Pittman LLP, outlined some basic principles employers should be aware of:
• If an employee has any COVID-19 symptoms — fever, cough or shortness of breath — they need to notify their supervisor and they should stay home. Employers are permitted to ask a worker if they are experiencing symptoms of COVID-19, but the information must be treated as a confidential medical record.
• Employers are also permitted to take any of their employees’ body temperatures, which is not normally allowed.
• The Equal Employment Opportunity Commission now permits employers to require employees with symptoms to stay home, whether or not they've actually tested positive for COVID-19. Information can be found at https://www.eeoc.gov/coronavirus/
In addition, Van Wyngarden said that if an employee either appears ill when they arrive at work or becomes ill during their shift:
• Separate that employee from other workers, customers, and visitors immediately, and send that person home.
• Ask the employee for the names of anyone that they've been in close contact with in the last 14 days — including other employees, vendors and delivery personnel, and those people should be informed without revealing the employee’s identity.
• Encourage employees to self-monitor for signs and symptoms of the virus.
• Recommendations on cleaning vary, but Van Wyngarden suggested using common sense and conducting a thorough sanitization of the relevant areas of the restaurant, at a minimum.
Addy of HR Annie noted that restaurants’ experience protecting customers from food-borne illnesses is an asset in these times.
“Restaurants already have to subscribe to certain levels of sanitation, so they're in that right mindset of prevention when it comes it comes to surface disinfections, and the other things that need to happen,” she said.
Roslyn Stone, left, chief operating officer at Zero Hour Health, which developed an app called Zedic that restaurant operators can use to help them navigate the crisis, said some local authorities have instructed restaurants to close for a period of time for cleaning and sanitization if an employee tests positive.
“We had it happen in Delaware, Pennsylvania, Georgia and California over the last four days where they made someone close, at least for 24 hours, to sanitize, do the risk assessment, exclude anybody who came in close contact [with the infected person], and then reopen,” she said in April.
In many cases restaurants may want to sanitize — with EPA-approved COVID-19 sanitizing products — as soon as they know an employee is sick, regardless of whether or not they have tested positive, Stone said.
Stone also said she’s seen state regulations and recommendations changing quickly, sometimes with only hours of notice before new policies take effect. Compounding those state-by-state changes is that there is no central repository for them, she said.
Another critical aspect of the pandemic that operators need to be aware of is the changes that have been made in federal regulations around sick leave and unemployment insurance under the recently passed Families First Coronavirus Response Act.
Under Families First, the Family Medical Leave Act, requiring employers to provide up to 12 weeks of paid family and medical leave, has been expanded temporarily to include any workplace with fewer than 500 workers, and cover any employee who has worked for the company for at least 30 days, for COVID-19 related reasons.
In addition, the Emergency Paid Sick Leave Act requires employers with fewer than 500 employees to provide employees with 80 hours of paid sick leave at the employee’s regular rate, or two-thirds the regular rate if the worker is ordered to quarantine, or care for a family member due to COVID-19, according to an employer advisory from law firm Fisher Phillips.
Employers will get a tax credit for compliance under the new law, which is in effect through Dec. 31, 2020
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