As the sweeping coronavirus outbreak continues to cause disruptions in American workplaces, employment and labor lawyers are busy.
That’s according to Richard Dreitzer, one such Las Vegas-based lawyer with Fennemore Craig.
Dreitzer answered questions recently about employment law in Nevada, federal policies that could impact missed work time, and how the coronavirus crisis could change the American workplace moving forward.
Some employees in different industries in the Las Vegas Valley are being told to work from home amid the outbreak. What do employees need to remember at a time like this?
Employers are not required to pay you not to work. It depends on where you are on the food chain. You have two types of employees in the workplace — exempt and nonexempt. The nonexempt employees are your hourly employees; then you have exempt employees, who are salaried. Depending on who you are, the impact of a short-term workplace closure changes a little. If you’re a salary person and an employer asks you to work one hour during a period you wouldn’t otherwise be working, the employer is obligated to pay that person for an entire pay period. If you’re hourly, though, and your place of employment is shuttered, they have no obligation to pay you.
I think everybody is very worried right now, and that’s understandable, but I don’t think it’s reached a tipping point where we can’t fix things once we get ahold of this.
What do employers need to do right now to protect themselves? What should they be thinking about?
From the employer side, you’d probably want to take temperatures to see if employees have a fever. Unfortunately, if you have more than 15 employees, you’re covered by the Americans with Disabilities Act, which means that you can’t do that. That’s because, under the ADA, measuring an employee’s body temperature is considered a medical exam. That’s only permitted when an employer can show, based on objective evidence, that said employee is a direct threat to the health of other employees. How would you know if somebody is a threat to health and safety if you haven’t tested them? So, it kind of goes in circles.
The other end is if you can, as an employer, ask a person with flu-like symptoms to stay home from work. That’s when you get into OSHA, the Occupational Safety and Health Administration, which Nevada has a branch of called Nevada OSHA. They have something called a general duty clause, which requires employers to provide a safe workplace that is free from hazards that could cause serious harm. A lot of this is what you’re encouraged to do, not what you’re required to do, but I think an employer should encourage people experiencing flu-like symptoms to stay home. They’re not required to, but they should.
Let’s say an employee of an organization refuses to come to the workplace because they’re scared of catching coronavirus. Would they have a case if an employer threatened discipline if they didn’t show up?
I think the answer would be no. Generally, employees are only allowed to refuse to work if they have a reasonable belief that they’re in imminent danger. It has to be more than just "everybody around me is getting sick." If you, personally, are not sick, I think you’d have a hard time saying that you’re justified in not coming to work.
Recently, there was a report of a casino worker in Las Vegas who was told to leave work because they were wearing a surgical mask. Can an employer do that? Or can an employer require an employee to wear a mask?
Generally, under OSHA, an employer can require the use of what they call a respirator if it’s necessary to protect health and safety. So, it’s possible, but it also works the other way. If an employee wants to wear a face mask, I think the answer is an employer can deny that, under most circumstances. You have to look at the facts on the ground. If there’s no general threat to health or safety in a particular workplace, then it may not be justified to say that you demand to wear a mask or you won’t work.
Can an employer ask workers if they’re experiencing coronavirus symptoms?
I think the answer would be yes. The ADA doesn’t prohibit employers from asking people who report feeling ill, or who are calling in sick, if they’re experiencing virus symptoms, such as fever, chills, cough or sore throat. That’s because that information wouldn’t be getting at whether or not a person has a disability. An employer has a responsibility to protect the workplace.
What if an employee is feeling ill, but, for whatever reason, continues to come to work and be around other people. Would the employer have a case to come after that worker if it’s found out they were carrying this virus?
It would come down to what that person knew and when they knew it. If an employee who is never sick suddenly gets these symptoms and, by coming to work, infects the entire workplace, that could create some issues for that employee. I think the answer is yes — an employer could require an employee to self-report. Remember, though, there’s such a heightened sense of emotion around this outbreak right now, I think employers would hesitate to be harsh on someone in that situation.
Do you think there’s a possibility that this pandemic, which is apparently going to require a lot of people to either not work or work from home, could change the way we think about the American workplace?
I think employers are having to get creative in how they staff their business because of this. The coronavirus could instantly damage a workplace’s productivity. Of course, there are solutions for that, like being able to work remotely. There are great software packages for that now. Certainly if you’re in one of the service industries, the casinos in town, it would be tough to have a lot of people working remotely. That’s a whole different ballgame. As a lawyer, yes, I could certainly do my work remotely. There could be some economies of scale that come of all this. We don’t know the impact this all will have on the workplace in this country just yet.