Alert

Guidance for Employers to Address Coronavirus in the Workplace

COVID-19 (commonly referred to as the “coronavirus”), a respiratory illness that was first diagnosed in Wuhan, China, in late 2019, has hit the United States. The World Health Organization (“WHO”) has declared the outbreak a public health emergency of international concern and the virus is being classified as an epidemic. With the spread of the virus, employers face a series of constantly evolving questions regarding their competing legal obligations to provide a safe workplace, while protecting the privacy rights of their employees, and without violating anti-discrimination laws.

WHAT LAWS ARE POTENTIALLY IMPLICATED?

Before an employer responds to these challenges, they should be familiar with the laws implicated with an epidemic like the coronavirus:

Occupational Safety and Health Act (“OSHA”)

OSHA’s General Duty Clause requires employers to maintain a safe workplace for all workers and to distribute information and training about workplace hazards. It also bars employers from retaliating against employees for exercising their rights to safe workplaces.

The situation is constantly evolving. Employers must monitor the developments about the ongoing outbreak and assess government notifications to formulate appropriate workplace responses and preventative measures.

Americans with Disabilities Act (“ADA”)

The ADA protects employees from discrimination based on their disability, record of a disability, or perceived disability. “Disability” has a broad definition, which could cover the coronavirus. This means that those who have or are suspected of having the coronavirus could be covered by the ADA, depending on its impact on the employee, or, for instance, if an employee is perceived to be disabled. Employers must be sensitive to the risk of discrimination under the ADA. The ADA also requires employers to keep employee medical information and records confidential and in a separate folder from the employee’s personnel file.

Employers must balance these competing legal requirements as they adjust business practices to address coronavirus concerns. Employers should act to protect their workforce, with an eye toward discrimination laws, all the while maintaining tact and sensitivity towards those who have or may be suspected of having contracted the virus. This is not a science and often involves a case-by-case determination.

HOW SHOULD WORK TRAVEL BE HANDLED?

Employers should monitor and follow travel advisories. The U.S. State Department issued Level 4: Do Not Travel advisories for China and Iran, and Level 3: Reconsider Travel advisories for South Korea and Italy. This is a fluid situation, and travel advisories should be monitored daily. The Centers for Disease Control and Prevention (“CDC”) currently recommends avoiding all nonessential travel, including layovers, to China, Iran, Italy, and South Korea. It is also recommended that older adults and those with chronic medical conditions avoid Japan and take precautions when traveling to Hong Kong. Employers may want to ban business-related travel to these countries. Employers can require their employees to provide advance notice and request approval for all business travel. Publishing clear guidelines to employees is critical.

If employers require international or even domestic travel for business purposes, an employee may claim that she does not want to travel for fear of contracting the coronavirus. If there is evidence to validate such a concern (e.g., the existence of a level 4 travel advisory warning), it is risky to impose discipline or force the employee to travel. The employee could claim that the employer retaliated against her for opposing unsafe working conditions under OSHA. The employee could also argue that the employer is violating the General Duty Clause by sending employees to high-risk areas. If the employer’s business involves frequent travel, consider other options such as attending meetings by videoconference.

Also, if an employee informs an employer that she has an underlying health condition impacting her request not to travel, the employee may be entitled to refrain from traveling as a reasonable accommodation under the ADA. For instance, if the employee has a medical condition (i.e., an ADA disability) that makes her more susceptible to contracting the virus through travel, and there is a reasonable concern she could contract the virus, an employer should engage in the ADA interactive process to determine whether the employee is entitled to refrain from traveling in order to perform the essential functions of her job, or whether refraining from such travel would result in an undue hardship upon the employer.

CAN EMPLOYERS LIMIT EMPLOYEES’ PERSONAL TRAVEL?

Employers may not be able to limit their employees’ personal travel. Certain state labor laws (e.g., California, New York) limit an employer’s ability to restrict lawful off-duty conduct. What’s more, any restriction of employee activities based on the fear that the employee might later become sick or disabled risks exposure to a disability discrimination claim.

In this case early and continued communication with employees is essential. Providing written travel guidance with recommendations is also essential. Employers may request that employees inform them of when and where they are traveling, so that employers are aware of any exposure risk. Employers should also notify these employees that they may be required to work remotely or take leave for the 14-day incubation period (i.e., self-quarantine) after returning from their trip.

HOW SHOULD EMPLOYERS RESPOND TO EMPLOYEES WHO HAVE TRAVELED TO HIGH-RISK AREAS OR HAVE POTENTIALLY BEEN EXPOSED TO THE VIRUS?

Employers must have a plan in place that determines how they will respond to employees returning from travel in high-risk areas and those who were potentially exposed to the virus in other ways (e.g., caring for a family member who contracted the virus). The CDC has published clear guidance to follow in these scenarios.

Encourage Sick Employees to Stay Home

Encourage employees who are sick to stay home. This includes any employee who has a fever of 100 degrees or higher, has a persistent cough, or has a respiratory illness. Sick employees can also be sent home. Employers should implement a protocol to handle this situation that respects an employee’s privacy but immediately separates sick employees from the rest of the employee population to contain potential community spread.

Remote Work

Remote work is one of the most commonly used options to address workplace concerns. But be aware that allowing employees to remote work now may impact future remote work requests. Be clear in communications that this is a temporary arrangement based on extreme public safety concerns and will be authorized only for a limited period (e.g., four weeks maximum).

Leaves of Absence

If an employee is sent home due to illness or in a self-quarantine situation, allow them to use all available leave, and be certain to comply with any state or local sick leave laws. If an employee does not have paid leave available, it is recommended that they be granted an unpaid leave of absence as a reasonable accommodation. Basic wage and hour principles continue to apply in these cases. Non-exempt employees are only required to be paid for time actually worked. While not legally required, employers can consider offering extra paid time off to those in self-quarantine or allow employees to go into arrears on any paid time off accruals to promote self-reporting. In light of the circumstances and to enhance employee relations, employers should work with employees to assist in maximizing the employees’ ability to utilize any available paid time off options and leave.

Medical Certification or Testing

Employers may not require an employee to get a medical certification or testing without objective evidence that the employee is a direct threat to the health and safety of others. Consult the CDC’s interim guidance on risk assessment for reliable exposure risk information. Medical testing can include questions about employee medical information, such as asking about an employee’s body temperature or pre-existing conditions that make them susceptible to contracting the virus. Medical inquiries, testing, and certifications are all fertile ground for ADA claims. In deciding how to respond to employees potentially exposed to the virus, employers should be explicit that the action is not meant to be punitive and that the employee is welcome back to work after clearing the 14-day incubation period with no symptoms. This plan should also be applied uniformly and to all employees regardless of age, disability, or any other protected characteristic.

SHOULD EMPLOYERS ADAPT WORKFORCE POLICIES AND COMMUNICATIONS?

It is critical that employers quickly formulate specific workplace policies and guidelines. This includes directives to the workforce, as well as updating or creating business continuity plans and forming management response task forces. Also, a communications plan to educate their workforce on basic information about the coronavirus, including the following important facts:

• Symptoms include fever, cough, and shortness of breath. Shortness of breath is the one symptom that can differentiate the virus from the common flu. If an employee or a family member experiences these symptoms, do not enter the workplace and seek medical attention immediately.
• Symptoms may appear two to 14 days after exposure. Asymptomatic infected persons can still infect others.
• Officials at the CDC believe that the virus is spread mainly from person-to-person close contact (within about six feet) and respiratory droplets. Spread may also be possible from infected surfaces or objects.
• Explain heightened workplace cleaning directives. Provide supplies to clean workstations and shared areas. While the CDC recommends that only people who are infected or could be infected wear face masks, respect employees who choose to wear protective gear.
• Employees can help prevent the spread of the virus by: avoiding touching their eyes, nose, and mouth; staying home when they or a family member feels sick; washing their hands often and before eating; using hand sanitizers; coughing or sneezing into a tissue or arm; cleaning and disinfecting frequently touched objects and surfaces; among other good hygiene protocols.

Employers should be prepared to communicate openly and frequently to stress that they are committed to ensuring a healthy and safe workforce. As part of that commitment, business responses and workplace monitoring and precautionary measures will be updated as necessary and in response to the spread of the coronavirus.

An employer should clearly communicate its plan and standard policies related to this virus. This includes an employer’s plan for responding to employees with exposure risk, how to request a reasonable accommodation, how to handle possible exposure, and the employer’s prohibition on disability discrimination. Employers should also assure confidentiality to the extent possible. If a business-related travel ban is issued, employees should be notified of such a ban and whether any international company events are being canceled. Employers should be clear that they are actively monitoring the situation and that some of these procedures are subject to change.

Employers should discuss health and hygiene with all employees as a standard precaution but emphasize that they are not offering a medical opinion. Refer employees to reliable resources such as the WHO and CDC. Further, employers should identify a contact and provide contact information for employees with questions.

Overall, it is important to raise awareness and share accurate information about the virus, without creating panic. With a well-communicated and defined plan, employers can effectively protect their workforce while limiting exposure.

WHAT TYPES OF QUESTIONS ARE EMPLOYERS ASKING BLANK ROME? 

This is a rapidly changing situation. The potential legal issues and implications are quickly evolving. Blank Rome is working with our clients to address employer questions and concerns, such as:

• Should an employer cancel a business conference scheduled for its salesforce in California next week?
• Can an employer mandate key employees to attend an important business meeting on the West Coast?
• What can an employer ask an employee returning from personal travel abroad?
• Should an employer ask employees to monitor one another in the workplace?
• Can an employer require visitors to follow certain hygiene procedures, or restrict their access to the workplace?
• How can an employer address business slowdowns in production due to supply chain problems?
• Does a force majeure contract provision apply in these circumstances?
• How can an employer prepare for a forced closure of operations?
• What are the requirements to pay employees that are not working due to coronavirus concerns?
• What should an employer do if the company issued a travel ban, but an employee must travel abroad on urgent business?

Blank Rome continues to advise on these and other emerging issues, draft communication and business continuity plans, and create and adapt disease prevention policies for employers of all sizes operating in the United States and globally. Please contact a member of the Labor & Employment group with any questions—no question is too small.

© 2020 Blank Rome LLP. All rights reserved. Please contact Blank Rome for permission to reprint. Notice: The purpose of this update is to identify select developments that may be of interest to readers. The information contained herein is abridged and summarized from various sources, the accuracy and completeness of which cannot be assured. This update should not be construed as legal advice or opinion, and is not a substitute for the advice of counsel.