Illinois has had only two confirmed cases of the Corona COVID-19 virus and both patients recovered. According to the Illinois Dept. of Health, there are no known, infectious Illinois residents at this time. Nevertheless, employers need to plan. Even though the immediate risk to Illinois residents is low, this is an excellent time for employers to review their sick day policies and make plans for a possible COVID-19 outbreak here, or update their plans to deal with the more immediate concerns, the seasonal flu.
Employers should review their sick day policies.
While not required to offer paid sick leave, most employers offer a set number of sick days with pay. When it is a set condition of the employment, the employer cannot refuse to allow an individual to use the time for a legitimate illness or reduce their pay for using the sick days
Employers should encourage employees to stay home when sick.
According to the CDC, handwashing and staying away from sick people is more effective then wearing masks and gloves to curb the spread of not only the COVID-19 virus but also all influenzas. Accordingly, employers should encourage employees to use their sick days.
Employers should review the Family and Medical Leave Act (FMLA).
The FMLA may cover influenza for both the employee as well as the employee’s family member. Under the FMLA, an eligible employee may take up to 12 workweeks of leave during any 12-month period because of a “serious health condition that makes the employee unable to perform the functions of [the employee’s] position.” 29 U.S.C. § 2612(a)(1)(D). It is unlawful for an employer to interfere with the exercise of an employee’s rights under the FMLA. § 2615(a)(1).
The FMLA defines “serious health condition” as “an illness, injury, impairment, or physical or mental condition . . . involv[ing] . . . (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider.” § 2611(11).
The FMLA regulations define “serious health condition” as “an illness, injury, impairment or physical or mental condition that involves inpatient care . . . or continuing treatment by a health care provider.” 29 C.F.R. § 825.113(a). A “serious health condition involving continuing treatment” includes, inter alia, a period of incapacity of more than three days and any subsequent treatment or period of incapacity that involves “[t]reatment two or more times, within 30 days of the first day of incapacity, unless extenuating circumstances exist, by a health care provider.” § 825.115(a)(1). “[I]ncapacity means inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery therefrom.” § 825.113(b).
Employers should have a plan for a possible local outbreak.
Even if the COVID-19 virus does not cause widespread illness, it is wise to have a plan for what to do if it does happen. According to the news reports, most who have tested positive for the COVID-19 have not had serious symptoms – some may be asymptomatic or have symptoms that mimic a cold yet may be able to spread it to others at work. Where there is a concern that an employee may be contagious, or there is a known outbreak in a the workplace, employers should be prepared to ask individuals who are able to do so to work remotely and to also prepare for a temporary shutdown of the workplace. The plan should be as individualized as your business with the notion of containment and avoiding the spread of the virus.
Plan ahead. Prepare now for the temporary reduction of employees and potential incapacity of key players. Encourage any employee who exhibits symptoms of COVID-19, or has been exposed to COVID-19 to stay home. It may cost the company more in the short run, but will have more long-term benefits.
If you have any questions regarding your sick-day policies, contact Kristin Tauras at McKenna Storer. firstname.lastname@example.org