The outbreak of respiratory disease (COVID-19) caused by the new coronavirus presents many issues for employers. The Centers for Disease Control and Prevention (CDC) expects the disease to continue to spread throughout the country. Meanwhile, the global spread of the disease, the rise of travel advisories, and the widespread media coverage on these topics are leaving employers worried about the health and safety of their employees and assessing the actions they should take in response.
Employers should prioritize implementing plans to manage and address workplace concerns about the coronavirus. In doing so, employers must be mindful that their plans and actions are compliant with applicable employment laws.
This guidance addresses common areas of concern that may arise in the workplace and strategies for responding. Given the complex legal landscape, employers are strongly encouraged to consult with legal counsel prior to taking any action in response to the coronavirus.
● Stay
informed. Employers should stay up-to-date on
officially recommended actions and factual information in their
jurisdictions. Sources within the United States include
the
CDC and the
World Health Organization (WHO). The CDC has
implemented
interim guidance for businesses and employers to plan,
prepare, and respond to COVID-19. |
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● Adopt
travel guidelines and protocols. Employers should
establish work travel protocols and revisit them based on
recommendations from the WHO and CDC. Currently, the CDC recommends
avoiding nonessential travel to Italy, China, South Korea, and
Iran. Employers should continue to consult the
CDC's website for current travel notices. Employers
should strongly consider limiting employee business travel to and
from areas where COVID-19 is most prevalent to prevent illness and
loss of productivity due to quarantine or employee exclusion from
the workplace after travel. Many employers are suspending all
nonessential business travel or limiting travel to within the
United States. Employers should also be sensitive to employee requests to avoid travel, particularly to high-risk areas. Alternatives to in-person meetings should be encouraged. |
● Actively
encourage sick employees to stay at home and seek medical
attention. The CDC recommends that employees who
have symptoms of acute respiratory illness symptoms (i.e. cough,
shortness of breath) stay at home until they are free of fever and
any other symptoms for at least 24 hours. Employers should
communicate with employees about the importance of staying home
when ill, and maintain flexible policies permitting employees to
stay at home when necessary without adverse actions. This may
include potentially adopting temporary leave or work-from-home
policies. Policies that give employees confidence that they will
not be penalized for taking necessary sick leave are important
tools in reducing potential exposure. |
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●
Address potential exposure
risks. According to the Occupational Safety and
Health Administration (OSHA) guidance,
employers should implement policies that will result in
the "prompt identification and isolation of potentially
infectious individuals." OSHA has also indicated that
employers may take action with regard to high-risk individuals,
including those who have traveled to impacted areas or those who
have been exposed to the illness. Employers can mandate that employees report on their recent travel to impacted regions to assess exposure risks. An employer that has a reasonable belief an employee has travelled to a high-risk country or area and either has acquired or been exposed to COVID-19 may ask that the employee not return to work for the COVID-19's incubation period (which is currently identified as a 14-day incubation period). In these instances, the employer should be sure to comply with applicable leave, wage and hour laws regarding entitlement to leave and pay. |
● Avoid
claims of discrimination. Title VII and state law
prohibit discrimination based on race, national origin, and other
protected classifications. In this context, the CDC has advised
employers to use its
guidance to determine risks of COVID-19 and to "not
make determinations of risk based on race or country of origin, and
be sure to maintain confidentiality of people with confirmed
COVID-19." Employers should take care not to exclude
employees from the workplace or work-related activities without
evidence of illness or recent travel to a high-risk area. |
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● Americans
with Disabilities Act considerations. The U.S. Equal
Employment Opportunity Commission (EEOC)
recently commented on the coronavirus and implications
under the Americans with Disabilities Act (ADA). In short, the
EEOC cautions that employers remain cognizant of their obligations
under the ADA, with regard to reasonable accommodations and
prohibited medical examinations. The EEOC has made clear,
however, that the ADA does not interfere with or prevent employers
from following the guidelines and suggestions made by the CDC about
steps employers should take regarding the coronavirus. |
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● Family
and Medical Leave Act (FMLA) considerations. An
employee who tests positive for COVID-19 may qualify as having a
"serious health condition" for the purposes of the
federal FMLA, which guarantees unpaid, job-protected leave for
eligible workers at businesses with at least 50 employees who have
a serious health condition. However, employees are not entitled to
take FMLA to stay at home to avoid getting sick. |
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● Follow
OSHA reporting requirements. Employers have an
obligation to report certain types of work-related injuries and
illnesses to OSHA. OSHA has deemed an employee infected with
the coronavirus as a recordable illness
when a worker is infected on the job. |
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● Stay
Calm. Given the media attention the coronavirus has
received, employees may seek to avoid the workplace despite a low
number of outbreaks in the employer's region. Employers
should consider proactive measures to combat misplaced
worries. Among other steps, employers can regularly update
employees on the relative risk of outbreak in the employer's
area, take extra steps to sanitize work locations, provide hand
sanitizers, and other cleaning materials to encourage positive
hygiene and encourage sick employees to stay home. Employers
can also circulate the CDC recommendations: washing hands with soap
and water for at least 20 seconds after using the bathroom, before
eating, and after blowing your nose or sneezing. Avoid touching
your eyes, nose and mouth and clean objects and surfaces you touch
often. Employers should also consider sharing regular updates
from the CDC on the status of the coronavirus, including
the
CDC's recommendations regarding detecting symptoms and
preventing and treating the disease. |
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.