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.”
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.