Update on COVID-19: What Employers Can Do as World Health Organization Declares a Pandemic

Employment Law

The World Health Organization (WHO) declared COVID-19 a pandemic in light of the alarming levels of the coronavirus spread, its severity, the level of inaction among governments/organizations, and the numbers of expected deaths and affected countries. The declaration of a pandemic means that employers can now take several additional steps to combat the spread of COVID-19 and protect their workforces.

1. What does the declaration of a pandemic mean for employers?

First, employees who become ill with COVID-19 symptoms at work during a pandemic may be sent home. Second, employers may ask employees whether they are experiencing symptoms—such as fever—related to COVID-19. In a pandemic, these inquiries are justified if they are based on objective evidence, because the spread of such illnesses may pose a direct threat. Third, employers may also send an employee to be tested for COVID-19 when there is an objective and reasonable belief that the person is experiencing symptoms of coronavirus, and the employer bears the cost of the test. Fourth, employers may ask questions about exposure to illness if an employee returns from travel to an area affected by the virus.

On the other hand, the declaration of a pandemic does not give employers the right to ask employees who are not symptomatic whether they have conditions that would make them more vulnerable to complications from COVID-19.

2. If a medical test is required, where can employers send their employees?

In California, such testing is done through local counties.

In Los Angeles, for example, FDA-approved testing is available through the Los Angeles County Department of Public Health. Because of the lack of supplies and tests available, however, the County requires that the individual seek treatment through a primary care physician. If the physician believes that the individual may have COVID-19, the physician can order testing through the County. California has 18 health department laboratories that can run the tests, but at this time it is unclear what the turnaround time is for this testing.

Some private labs are also offering non-FDA-approved testing. For patients to qualify for private testing, labs generally require that they meet the CDC criteria for testing and be referred for a test by a physician. 

3. Who pays for the testing?

Last week, California Governor Gavin Newsom ordered that insurance plans cover the cost of all testing for COVID-19 in California. This means that anyone with insurance (public or private) can get the test at no charge. In the event that the individual does not have insurance, the Los Angeles County Department of Public Health recommends going to one of the low-cost health clinics that can be found here. On this website, individuals can search “clinics” in their ZIP code. If the physician at that location thinks there is a risk of COVID-19, they too can order testing kits from the County.

Additional resources

For further pertinent considerations for employers as they navigate this situation, review our recent guidance here. Additionally, Manatt will be hosting a webinar for healthcare stakeholders on practical approaches for meeting the regulatory, financial and operational challenges of COVID-19. Register for the webinar here.

For additional assistance with respect to compliance and concerns regarding your company’s response to COVID-19, please reach out to a member of Manatt’s Employment and Labor team.

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