A new policy brief from the United Nations projects that the COVID-19 pandemic will cost the tourism industry approximately $1 trillion in losses and threaten more than 100 million jobs worldwide.  In additional to the dramatic fiscal impact facing the tourism industry, hospitality professionals are forced to comply with constantly evolving federal, state, and local regulations.

The following are answers to five of the most asked questions from hospitality professionals.

Can employees refuse to come to work if they are afraid of contracting COVID?

Federal, state, and local regulations require employers to use reasonable care to provide a suitable and safe place to work.  Fear of contracting the virus – among healthy employees where the employer has followed all safe re-opening guidelines – generally is an insufficient reason for an employee to refuse to return to work.  In most situations, an employer may treat an employee’s refusal to return to work despite the employer’s reasonable safety efforts as an unexcused absence.

If an employer encounters an employee who refuses to return to work, employers must carefully consider why the employee is refusing to return.  If an employee identifies a legitimate safety concern, the employer should immediately work to address it.  The employer should also consider whether the employee is entitled to an accommodation or protection under state or federal leave laws.  Further, an employer should consult legal counsel before taking any adverse actions against an employee to evaluate the risk of a possible retaliation claim. Moreover, if the employee is covered by a collective bargaining agreement, the employer should carefully review the agreement to determine whether any provisions limit an employer’s ability to take action against the employee for refusing to return to work.

Finally, employers should ensure that their conduct and attendance policies address employees who unreasonably refuse to attend work, or travel for work, based on an unreasonable fear of contracting COVID-19.

Can an employee take leave under the Families First Coronavirus Response Act (“FFCRA”) to assist their children with remote learning?

The FFCRA entitles eligible employees of covered employers to take up to two weeks of Paid Sick Leave, and up to ten additional weeks of Expanded FMLA leave, when the employee is unable to work (including telework) due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.

Pursuant to the FFCRA regulations and previous guidance issued by the Department of Labor, if a child’s school is physically open and the child is permitted by the school to attend in person, then any personal choice made by the child’s parents to instead have the child participate in remote schooling, or “distance learning,” does not provide a qualifying reason for an employee to take FFCRA leave.

If an employee requests FFCRA leave, you should ask follow-up questions as necessary (e.g., Is the child’s school actually closed?  Does the employee have a choice to send the child to school in person, but instead is exercising a choice to have the child engage in remote learning?).  You should also require the employee to provide information and documentation to support their request for FFCRA leave.

Can I take the temperature of employees and guests?

Generally, yes.  Businesses must balance the obligation to provide a safe workplace against obligations of medical privacy and confidentiality. Local regulations may also require businesses to conduct temperature screening of all employees and guests.

Medical information gathered about the health of an employee or guest must be kept confidential.  Employees and guests should also be clearly notified in advance and should always be asked to give their expressed, voluntary consent to any health screening measures.  Also, health screenings should be administered on all employees and guests to avoid any potential claim of discrimination.

What do I do if an employee tests positive for COVID?

If an employee tests positive for COVID-19, there are requirements in most countries to notify local authorities.

The employer should immediately ask the employee to leave the workplace (or ask them to stay home).  The employee may be eligible for federal, state, or local sick leave benefits if they are unable to work due to contracting COVID-19.

The employer must then take additional steps such as:

• Perform a deep clean and disinfect the work premises and its ventilation system;
• Conduct an assessment of who may have been in close contact with the employee; and
• Require employees to work from home (to the extent possible).

In some cases, where a significant number of employees and guests contract the virus, the business may need to close for a short period of time to ensure proper sanitation measures are performed.

The employer should also notify employees that an unidentified employee or guest with whom they have had recent contact with has tested positive for COVID-19.  The employer should also advise the employee to monitor the development of potential symptoms or obtain a test for the presence of COVID-19.   The identity of the person who has tested positive should not be disclosed unless required by law and must be kept confidential and only revealed to employees in the control group who need to know (e.g., Human Resources Manager or the Hotel’s General Manager).

What do I do if an employee or guest is suspected of contracting COVID-19 but has not yet tested positive?

This is possibly the most difficult scenario to navigate.  When an employee or guest is suspected of having COVID-19 but has not yet tested positive, businesses must take all steps necessary to prevent the spread of the disease.  On the other hand, businesses must ensure that they do not disclose an employee or guest’s name and medical information to other staff members when there is insufficient reason to do so.  This may cause unnecessary panic and anxiety for employees in the hotel.

In general, hotels should take the following steps when an employee or guest is suspected of having COVID-19:

• Require employees and guests to report if they or a family member are suspected to have contracted COVID-19 or are experiencing any flu like symptoms.
• Recommend that employees or guests who are suspected of having COVID-19 should immediately seek medical attention including obtaining a test for the presence of COVID-19.
• If an employee is generally fit to work or is waiting for the results of testing, they should be asked to work from home (to the extent feasible) and to self-quarantine. They should continue to be paid their normal wages during this time.
• The employee’s work area and surrounding area should be cleaned and sanitized.
• Employees who have come into close contact with the employee or guest may be asked to work from home or in secluded areas of the hotel for a period of 14 days.