Coronavirus Disease 2019 (COVID-19) has received heightened media attention
in recent weeks as the number of confirmed cases around the world, and now
in the United States, continues to rise. This focus is certainly warranted
in light of the fact that the World Health Organization has declared
COVID-19 a public health emergency. As federal and local health officials
move to address this crisis, employers would be wise to remain flexible in
their plans and policies and take proactive steps to ensure their employees
are safe and their businesses are in the best position possible to weather
the outbreak.
The Centers for Disease Control and Prevention (CDC) has published
Interim Guidance
for Businesses and Employers
to help companies respond to COVID-19. This guidance offers helpful
suggestions regarding employee communications, screening and monitoring
sick employees, travel, environmental cleaning, the development of business
continuity plans and other topics.
As employers plan to address the wide number of issues presented by
COVID-19, they must confront a variety of business and legal hurdles. Some
of the key issues are outlined below.
What must employers do to maintain a safe workplace?
At present, the Occupational Safety and Health Administration believes most
U.S. workers are not at significant risk of infection. However, the
situation is evolving and employers have a general duty under the
Occupational Safety and Health Act (OSHA) to provide a workplace free from
recognized hazards that are likely to cause death or physical harm.
There are several basic steps employers can take to try to limit the spread
of communicable diseases like COVID-19 and keep their employees healthy:
- Educate employees on the symptoms of the virus.
- Encourage employees to wash their hands frequently with soap and water
for at least 20 seconds and provide hand sanitizer with at least 60 percent
alcohol for times when hand washing is not available.
- Encourage employees to avoid touching their eyes, nose or mouth with
unwashed hands.
- Avoid close contact with people who are sick and minimize unnecessary
meetings and visitors.
- Clean and disinfect frequently touched, commonly-used surfaces and
objects, like door handles, copiers or common office equipment, employee
cafeterias and break rooms, and conference tables.
- Adopt appropriate travel guidelines, procedures and protocols for exposed
or sick employees. (See discussion below for more details.)
- Encourage employees who are sick or may have a family member who is sick
and who may have been in contact with someone with COVID-19 to stay at
home.
For information in addition to these basic steps, see
OSHA’s COVID-19 Guidance
for U.S. workers and employers.
How should employers handle travel concerns?
As of today, the CDC has issued Level 3 Travel Health Notices for China,
Iran, South Korea and Italy, meaning it recommends all individuals avoid
nonessential travel to those countries. The CDC has issued a Level 2 Travel
Health Notice for Japan, recommending that older adults or those with
chronic medical conditions consider postponing travel to that country. For
the most recent information, watch for updates on the
CDC’s travel recommendations.
Many employers have either suspended work-related travel to locations on
the CDC travel notice list completely, or have implemented policies that
require employees to seek approval for work travel to those areas. For
employees whose business requires travel to high-risk countries that are
under travel notice, employers should consider whether such travel is truly
essential and weigh alternatives to that travel for the duration of the
threat, such as videoconferencing, moving the location or postponing the
trip. Employers should remain flexible and consider reasonable alternatives
— especially for employees who voice concerns about traveling to the
affected locations, including regions in the United States that are
severely impacted by COVID-19.
Many employers are also requesting employees submit personal travel plans
for review of any precautionary measures that might need to be taken if
those plans involve travel to an affected area.
How should employers address employees who have recently returned from
an affected area?
The incubation period of COVID-19 is thought to be 2-14 days, and there
have been reports of virus transmission to others before the infected
person displays symptoms. Given this uncertain time period for symptoms to
present, if an employee (or a member of his or her household) has recently
returned from an affected area but is not showing symptoms, employers
should consider implementing one of the following for the duration of the
estimated incubation period:
- Require the employee to work from home during the 14-day incubation
period and confirm the employee has remained symptom-free for that period
before returning to the work place.
- If working from home is not practicable because of the nature of the
employee’s job duties, consider providing paid leave for the employee.
- Provide job-protected leave for employees who are asked to remain out of
work or agree not to count such absences under the company’s attendance
policies.
Employers should also review their business continuity plans and ensure
that work-from-home policies and procedures are clear and that there are
measures in place to facilitate any work-from-home requirement, including
technology support and communication requirements.
How should employers address employees who have been exposed to or show
symptoms of COVID-19 infection?
Employers should assess the risk of any employee who has been exposed to or
is exhibiting symptoms of a potential COVID-19 infection on a case-by-case
basis. However, in addition to the guidance above, employers may want to
consider modifying sick leave and other policies:
- Follow CDC guidance and relax requirements that employees provide a
doctor’s note to exercise sick leave, given the possibility of busy and
overwhelmed medical facilities.
- Advance leave if an employee does not have sufficient accrued leave or
agree to not charge leave for COVID-19 related issues against an employee’s
annual leave allotment.
- Allow additional time off until the employee is cleared to return to
work, should an employee exhaust his or her leave.
Which laws could be implicated by an employer’s response to COVID-19?
There is no one-size-fits-all approach to developing a plan to address the
concerns raised by COVID-19. However, employers should keep in mind that
several federal and state laws could be implicated by an employer’s
response to COVID-19:
-
Americans with Disabilities Act (ADA)
. The ADA generally prohibits discrimination against qualified
individuals with a disability. Having COVID-19 likely would not be
considered a disability under the ADA, especially given that it is a
temporary illness. However, if an employer makes assumptions about an
employee’s illness, it potentially risks a “regarded as” claim under
the ADA. Regardless of whether COVID-19 is considered a disability,
employers should be cautious of violating confidentiality provisions
under the ADA by disclosing identifying information about potentially
contagious employees to individuals beyond supervisors, human resources
and medical and safety personnel with a need to know. Some employers
have considered conducting temperature screening for all employees
before allowing them into the workplace. The Equal Employment
Opportunity Commission has made it clear that such screenings would be
considered a medical exam under the ADA, and for it to be permissible,
an employer must demonstrate that the screenings are job-related and
consistent with business necessity. According to the EEOC, this
exception is met where the CDC or a state or local health authority has
expressed the view that COVID-19 has become widespread in the
community.
-
Occupational Safety and Health Act
. As described above, employers have a duty under OSHA to provide a
workplace free from recognized hazards that are likely to cause death
or physical harm.
-
Family and Medical Leave Act (FMLA)
. The FMLA allows certain qualifying employees of covered employers to
take up to 12 weeks of unpaid leave within a 12-month period due to a
serious health condition or to care for a family member suffering from
a serious health condition. If an employee is taking leave because he
or she is suffering from COVID-19 or if the employee is caring for a
family member with the disease, the leave may very well be covered by
the FMLA. If, however, the employee is taking leave to avoid exposure
in the workplace, the leave will not be covered by the FMLA.
-
Fair Labor Standards Act (FLSA) and Pay Issues
. As COVID-19 spreads, employers may see an increase in absenteeism. In
addition, as noted above, employers may direct that employees stay home
if they have traveled to high-risk areas or have otherwise been exposed
to the virus. In such situations, employers need to be mindful of their
obligations under the FLSA when it comes to paying employees for the
time they are away from work, whether working remotely or on leave. The
U.S. Department of Labor – Wage and Hour Division has published “Pandemic Flu and the FLSA: Questions and Answers,” which offers helpful guidance on dealing with these and other pay
issues. When considering compensation-related issues, employers must
also be mindful of any obligations they may have under individual
employment agreements or company policies.
-
Title VII of the Civil Rights Act of 1964 (Title VII)
. Singling out employees because of their national origin, race or
ethnicity for testing, leave or other actions could lead to charges of
discrimination. In addition, passing over an older or pregnant employee
for travel opportunities because the employer assumes the employee
would opt out of travel may also result in a discrimination charge.
-
National Labor Relations Act (NLRA)
. The modification of sick leave, attendance and other policies to
address a potential pandemic may trigger bargaining rights at unionized
workplaces. In addition, unionized and non-unionized employees
may attempt to claim their refusal to work with certain coworkers or to
report to work during a perceived or actual outbreak is “protected
concerted activity.”
Further assistance
For assistance in developing or modifying your organization’s employee
communications, monitoring procedures, leave or travel policies, and
benefits to address the unique employment issues raised by COVID-19 (or the
threat of communicable disease generally), please reach out to your
McGuireWoods contact, one of the authors or any other member of the
McGuireWoods Labor and Employment Group or the COVID-19 Response Team.
