Coronavirus: Guidance for Employers

March 4, 2020
The developments concerning the spread of coronavirus/COVID-19 (the “coronavirus”) change daily. Companies in the U.S. and throughout the world are implementing new policies and protocols in order to address the coronavirus, including limitations on travel and telecommuting policies. 
 
Employers should keep various employment laws and regulations in mind as they develop a response to the coronavirus. Employers should also monitor guidance from federal, state and local health authorities, and consult with legal counsel regarding specific changes to policies or procedures or for assistance in developing new protocols because the particulars of each workforce and workplace will determine the preferred course of action. 
 
In considering measures in response to the current coronavirus situation in the U.S. and abroad, employers should bear in mind the following:
  • Under the Occupational Safety and Health Administration (“OSHA”), employers are required to provide a working environment “free from recognized hazards that are causing or are likely to cause death or serious physical harm to [their] employees.” 29 U.S.C. § 654(a)(1).
     
  • The CDC has issued guidance for employers to help prevent the spread of coronavirus and limit infection in the workplace, including the measures outlined below.
     
    • Employers should encourage ill employees, particularly employees with symptoms of acute respiratory illness (i.e., cough, shortness of breath), to stay home until they are symptom- and fever-free for at least twenty-four hours without the use of fever-reducing or other symptom-altering medications. As part of these efforts, employers should ensure that their sick leave policies are flexible and should not require a healthcare provider’s note for employees who are sick with acute respiratory illness to validate their illness because providers and medical facilities may be extremely busy.
    • Employers should also understand that employees may need to stay home to care for a sick family member.
    • Employers should separate employees who arrive to work with acute respiratory illness symptoms or develop symptoms during the day, and send them home immediately.
    • Employers should emphasize staying home when sick, respiratory etiquette and hand hygiene by employees. Employers should also provide soap and water, hand sanitizer, tissues and no-touch trash bins for use by employees.
    • Employers should perform routine environmental cleaning of all frequently touched surfaces, such as workstations, countertops and doorknobs, and provide disposable wipes for employees to wipe down surfaces before each use. Employers should also consider increasing the frequency of environmental cleaning in high traffic areas such as pantries, restrooms, elevator banks and conference or meeting rooms.
    • Employers should advise employees to take certain steps before traveling, including reviewing the CDC’s Traveler’s Health Notices for the latest guidance and recommendations for each country to which the employee will travel. Employers should also advise employees to check themselves for symptoms of acute respiratory illness before starting travel and notify their supervisor if they become sick while traveling. If employees become sick when traveling, they should promptly call a healthcare provider for advice, if needed, and, if outside the U.S., they should follow the employer’s policy for obtaining medical care overseas or contact a healthcare provider or overseas medical assistance company to assist them with finding an appropriate healthcare provider. A U.S. consular officer can help locate healthcare services, however, U.S. embassies, consulates and military facilities do not have legal authority, capability and resources to evacuate or give medicines, vaccines or medical care to private U.S. citizens overseas.
       
  • In implementing responses to the coronavirus, employers must be mindful of various employment laws and regulations, including the Americans with Disabilities Act (“ADA”), Fair Labor Standards Act (“FLSA”), Family Medical Leave Act (“FMLA”) and privacy laws, including but not limited to: 
     
    • Under FMLA and other sick leave laws, an eligible employee may be entitled to unpaid leave if the employee is infected or is caring for a qualifying family member who is infected. Governor Cuomo announced on March 3 that he will amend his Paid Sick Leave budget proposal to require employers to pay and protect from termination people who are required to stay home from work because they are being isolated or quarantined as a result of the coronavirus.
    • If an employee is confirmed to have coronavirus, employers should inform fellow employees of their possible exposure to coronavirus in the workplace but maintain confidentiality as required by the ADA, HIPAA and other privacy laws.
    • Employers need to be mindful of ADA in screening employees and accommodating those who have contracted coronavirus. Employers should continue to apply leave policies in a uniform, neutral and equitable manner. Employers can require medical testing or evaluation of an employee if the employee reasonably poses a “direct threat,” defined as “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”29 C.F.R. § 1630.2(r). In determining whether an employee is a “direct threat,” employers must base their assessment on objective, factual information and consider four factors:“(1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that potential harm will occur; and (4) the imminence of the potential harm. ”Id. The coronavirus likely qualifies as a “direct threat” under the ADA.
    • Coronavirus plans should focus on all similarly situated employees, not just individuals of a particular race, national origin or other protected classes.
    • OSHA prohibits retaliation against workers for raising concerns about safety in the workplace.
 
The spread and global impact of the coronavirus is fluid, and as the situation develops, employers should continue to revisit their policies and procedures and prepare for various contingencies.

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