Our nation’s fire and EMS agencies are making extraordinary operational decisions in their role as the first line of defense against the COVID-19 pandemic. These unique circumstances raise many questions for agency leadership about how to both take care of their invaluable employees as well as the communities they serve. Primarily, the question is: how can we protect our employees both physically and financially while they protect our communities in need, all while complying with the law and within budget constraints?
Here, I attempt to answer some of the employment law related questions that come up in this setting. Keep in mind, and as you are fully aware, this is a fluid discussion and it changes on a near daily if not hourly basis.
1. Can we continue to pay our employees who must be off work due to COVID-19 exposure or illness? Are we required to pay them?
First and foremost, employers are free to provide additional paid and unpaid leave at their own discretion. If this is something your agency chooses to do, leave should be provided fairly and in accordance with applicable nondiscrimination laws. You should also take into consideration your current leave policies and be sure that any new leave policy is consistent with these existing policies. Agencies will need to decide if they want employees to exhaust currently available paid time off (PTO) before receiving any additional benefit or if they want this to be an entirely separate pool of PTO. Another option is to develop a policy where employees may contribute available PTO to their coworkers.
Under federal law, employers are not required to pay non-exempt employees for work they do not perform and are not required to pay exempt employees for full-week absences in which they perform no work. Also, employers must also consider state and local wage and hour requirements that may be in addition to federal rules. It’s also important to remain consistency with your general practices that have been followed before under similar situations.
Again, circumstances are changing rapidly and you should pay attention to your local governments for any emergency changes related to PTO. Some states have instituted or proposed emergency paid sick leave measures. For example, in Colorado, employers in certain industries must provide up to four days paid sick leave to employees for COVID-19 testing. New York has also proposed emergency measures. The National Governor’s Association tracking page is a good resource for following local changes.
Finally, keep in mind that collective bargaining agreements in unionized agencies may create additional obligations to pay for lost time under some circumstances. Also, short-term disability plans may cover illness, so agencies should consult their policies and provide paperwork as needed.
2. What are best practices if an employee either has an exposure risk or tests positive for COVID-19?
Again, at this time, there is no universal standard here. However, agencies should develop written policies for assessing exposure risk and for the management of EMS personnel once it is determined there is potential exposure to COVID-19. It’s my opinion that policies can be drafted so that they are flexible and not punitive in nature. These policies should also take into consideration, and even in coordination with, state or local public health authorities as well as federal guidance.
Across all industries, the general guidance from employment attorneys is that employees who test positive or exhibit symptoms should be sent home and asked to self-quarantine for at least 14 days. This timeframe seems to be emerging as a standard but the EMS industry is unique. When you start losing staff for two weeks at a time, your workforce can obviously become depleted if not entirely eliminated. Again, I recommend being in regular contact with your state and local health authorities, because they will likely be providing guidance on modified staffing models if they have not already. I expect to see a further relaxation of staffing requirements and the majority of time this will come from your state agencies. You should also review and implement your mutual aid agreements.
Notice should be provided to all employees who worked in close proximity to the individual in question. If possible, do so without the individual’s name or other personal information. Ideally, you should document this notice which could be efficiently sent via text message or email.
3. What about time off to care for family members with COVID-19 or possible symptoms?
Under current federal law, eligible employees can use leave as provided under the Family and Medical Leave Act (FMLA) to recover from COVID-19 or to care for a spouse, son, daughter, or parent with COVID-19. Therefore, you should consult your FMLA policies and apply them to such circumstances.
In addition, the Families First Coronavirus Response Act was just signed into law on March 19, 2020 and it provides additional protections under this scenario. The Act does not go into effect until early April and regulations on how to implement the Act will be forthcoming. Therefore, you and your counsel should follow these new regulations to determine how they will impact current leave requirements. The Act does not apply to all employers and there are exceptions for certain industries so, again, this should be closely monitored.
4. Can you ask employees if they have COVID-19 or require medical examinations?
Employers can inquire about flu-like symptoms during a pandemic which may involve inquiring about such things as fever and respiratory problems.
5. Are workers who contract COVID-19 at work entitled to workers’ compensation benefits?
In order for workers to be entitled to workers’ compensation, illnesses must:
- Be occupational, and
- Arise out of or be caused by conditions peculiar to the work and create a risk of contracting the disease in a greater degree and in a different manner than in the public generally
Given this, it is likely that first responders and healthcare workers will have legitimate claims under workers’ compensation laws.
