When May Employers Require Workers to Self-Quarantine?

Allen Smith, J.D. By Allen Smith, J.D. March 5, 2020
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teleworking woman

​Spring break is near, and globe-trotting employees soon may return to the workplace from countries that the Centers for Disease Control and Prevention (CDC) and State Department have classified as areas where travelers could be at high risk for contracting COVID-19.

Employers can require workers to stay away from the workplace during the maximum incubation period of the virus—thought to be approximately 14 days—but may decide to not be so strict with employees returning from countries with low-risk assessment levels or low travel-alert levels.

But where do employers draw the line? The answer depends on the health and legal risks employers are comfortable taking. The Americans with Disabilities Act (ADA) prohibits discrimination against those regarded as having disabilities, in addition to those who have disabilities. Whether someone with the coronavirus has an ADA disability will depend on the severity of the case. If the illness substantially limits a major life activity, it’s covered by the act. In its ADA regulations, the Equal Employment Opportunity Commission (EEOC) includes breathing among its list of major life activities, and difficulty breathing is a symptom of the coronavirus. Fever and coughing are the other two main symptoms.

The ADA prohibits an employer from excluding individuals with disabilities from the workplace for health or safety reasons unless they pose a “direct threat”—a significant risk of substantial harm to others even with reasonable accommodation.

“There is no clear-cut guidance on this, but if someone is returning from a [CDC] level 3 country, it seems defensible to require that person to work remotely for a period of time or to take time off if remote work isn’t feasible,” said Susan Kline, an attorney with Faegre Drinker in Indianapolis.


Alert Levels

The CDC’s ratings system for risk assessment is similar but not identical to the State Department’s rating system for travel alerts. The CDC’s highest alert for its risk assessments is level 3, whereas the State Department’s highest travel alert is level 4.

Should employees returning from a CDC level 2 country or State Department level 3 country be quarantined? To understand experts’ views on these questions, it’s necessary to first understand the differences between the CDC’s risk-assessment levels and the State Department’s travel alerts.

The CDC’s risk-assessment levels for COVID-19 as of March 5 are:

  • Level 3, which is divided into two subcategories:
    • Widespread sustained—ongoing—transmission and restrictions on entry to the United States from these countries (currently China and Iran).
    • Widespread sustained—ongoing—transmission (as in South Korea and Italy).
  • Level 2, sustained—ongoing—community transmission (as in Japan).
  • Level 1, a risk of limited community transmission.

The State Department’s travel alerts as of March 5 include:

  • Level 4, a warning not to travel to that country (for example, to China and, due to kidnappings, to Iran).
  • Level 3, indicating that travelers should reconsider going to that country (for example, to South Korea and Italy).
  • Level 2, meaning to exercise increased caution before traveling (for example, to Japan).
  • Level 1, indicating that travelers should exercise normal travel precautions.

Laura Jacobsen, an attorney with McDonald Carano in Reno, Nev., recommended that employers impose waiting times for employees who have recently returned from a State Department level 4 country. These workers should stay away from work and monitor themselves for 14 days, she said. She wouldn’t recommend a self-quarantine for workers coming from countries with lower travel alerts.

A waiting period for workers returning from CDC level 3 and level 2 countries would be reasonable, according to Alka Ramchandani-Raj, an attorney with Littler in Walnut Creek, Calif.

It comes down to a risk assessment, she said, adding that she saw no need for a self-quarantine for those returning from CDC level 1 countries.

An employer may want to consider where employees have layovers in their travels, she added. For example, if someone traveling from India stops in Rome on the way home, he or she might have to wait 14 days before returning to work, she said.

Employers should tell traveling employees before they leave that they may be required to stay away from work for 14 days on their return, Ramchandani-Raj said.

Dr. Jay Butler, deputy director for infectious diseases at the CDC, said on a call with businesses March 4 that CDC researchers estimate that transmission can occur two to 14 days after initial exposure, mostly occurring between four and seven days. He was aware of some research indicating that the transmission period could be longer but said those cases would be outliers and may be based on bad notes.

Employers shouldn’t promise employees that they will be paid while in quarantine, said Jonathan Segal, an attorney with Duane Morris in Philadelphia and New York City. Whether the waiting period is paid will depend on whether work can be performed at home and the nature of the job classification, such as exempt or nonexempt. Some employers are saying that if employees must wait at home before returning to work, they will still be paid, but not every business can afford that, Segal said.

Domestic Travel

Segal said that as the coronavirus spreads in the U.S., employers may make employees who’ve traveled to locations experiencing outbreaks, such as the Seattle area, wait before returning to work.

“An employee could argue that there isn’t any basis for it because public health authorities haven’t recommended [self-quarantine], but if the employer pays for it, there are no damages,” he said.

The concern is that as the coronavirus spreads to other areas, waiting times will have to be applied to other workers, Segal added. But he said that waiting times for domestic hot spots is a reasonable option.

In addition, people may simply be in the vicinity of someone who has the coronavirus and for that reason need to self-quarantine for 14 days after that exposure, Ramchandani-Raj said. That could lead to more and more of the workforce either telecommuting or staying away from the workplace as the virus spreads.

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