As the 2019 coronavirus disease (COVID-19), has spread from mainland China, to European countries and has now begun to infect communities across the United States, it has grown into a “public health emergency of international concern,” according to the Centers for Disease Control and Prevention (CDC), imposing on employers of all sizes an obligation to help protect their workforces from contracting and spreading the disease. Employers face numerous issues related to COVID-19, including establishing protocols for employees who may travel, or who already have traveled to affected areas, as well as adjusting workplace conditions to reduce the likelihood of becoming a vector that accelerates the disease’s spread. While the health and safety of employees and customers is always of paramount concern, employers do not have carte blanche in crafting responses to the growing outbreak. As always, any policy changes must be reasonable, and balanced against workers’ autonomy and rights to privacy, among other considerations.
Fortunately, the CDC has issued guidance to employers on how to deal with COVID-19, providing scientifically based, government-sanctioned advice that employers should use when developing their responses. The CDC’s most recent publication, titled Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19), February 2020 (the guidance), is directed specifically at employers with recommendations to both reduce transmission of the virus and advice on how to prepare for potential consequences if the disease’s growth rate increases. Furthermore, the guidance also provides planning considerations if there are more widespread, epidemic-type outbreaks of COVID-19. The CDC will continually update this guidance as more data about the disease becomes available.
The CDC’s guidance is an excellent starting point for employers to craft health-safety policies best suited for their specific circumstances. However, employers should also be mindful of other legal ramifications of any policies they adopt. For example, employers should never make determinations of risk based on race or country of origin—a blanket ban on Chinese nationals from a campus would not pass legal muster, even if such a restriction may slightly decrease the risk of transmitting disease to other workers. Further, employers must beware of potential privacy concerns of employees with confirmed COVID-19.
There is much more to learn about the transmissibility, severity, and other features of COVID-19 and investigations are ongoing. Employers should review the CDC guidance page on COVID-19. Some key takeaways of the guidance include:
Employers should actively encourage sick employees, or employees with sick family members, to stay home and telecommute when possible. Specifically, the guidance states that “employees who have symptoms of acute respiratory illness are recommended to stay home and not come to work until they are free of fever (100.4° F [37.8° C] or greater using an oral thermometer), signs of a fever, and any other symptoms for at least 24 hours, without the use of fever-reducing or other symptom-altering medicines (e.g. cough suppressants).”
The guidance also recommends that employers speak with any third-party companies that provide contract or temporary employees about the importance of sick employees staying home.
Employers may isolate and/or send home employees who are sick or who become sick during the workday; guidance states that employers “should inform fellow employees of their possible exposure to COVID-19 in the workplace, but maintain confidentiality as required by the Americans with Disabilities Act (ADA).”
In situations where a household or family member of an employee has been diagnosed, the CDC states that such employees “should notify their supervisor and refer to the CDC on how to conduct a risk assessment of their potential exposure.”
Employers may consider implementing policies requiring employees who are diagnosed with COVID-19 or who have a household member with the virus, to notify their employer of such diagnosis and direct this communication to Human Resources, or a similar function, in order to maintain confidentiality of medical information to the greatest extent possible.
Guidance also states that employees who appear to have symptoms upon arrival to work or during the day may be sent home immediately.
Employees should receive education about hand hygiene, as well as coughing and sneezing etiquette. Employers are encouraged to provide tissues, hand sanitizer, and no-touch disposal receptacles.
Sick-leave policies should be flexible; follow federal, state, and local laws; and remain consistent with public health guidance. Employers should understand that exceptions may have to be made for unique situations.
Employers should ensure that routine environmental cleaning is performed and provide disposable wipes for employee use during the day.
Employers should discourage travel to China, Hong Kong, Iran, Italy, Japan, Singapore, South Korea, Taiwan, and Thailand, as well as cruise ship travel in Asia. Also, employees should be advised to take certain steps before traveling, including regularly checking the CDC’s Health Notices for guidance and recommendations for each country in which they will travel.
If an outbreak occurs in the U.S., employers should be prepared to cancel all non-essential business travel and all non-essential large-group, work-related meetings or events.
If outside the United States, a company’s protocol for obtaining medical care, or contacting a healthcare provider or overseas medical assistance company, should be followed.
The Occupational Safety and Health Administration (OSHA) has also set up a site for employers to prepare for a potential coronavirus outbreak. Under OSHA, employers have a duty to provide a workplace “free from recognized hazards that are causing, or are likely to cause death or serious physical harm.” Employers should review their safety programs and emergency action plans to ensure these are compliant with OSHA and other health and safety regulations.
The CDC and OSHA’s guidelines, as well as any issued recommendations by state and local government agencies, can help employers in crafting policies that proactively help control the spread of coronavirus and keep employees and customers safe.
With this guidance in mind, employers must be careful to avoid discriminating against individuals who are disabled, or are perceived as disabled, because of symptoms associated with COVID-19, and avoid identifying a potentially infected employee by race, national origin, or on the basis of disability. Furthermore, employers need to be cognizant of their legal obligations to maintain confidentiality of any medical records relating to leaves of absence. Also, employers who allow persons who are self-quarantined to work from home must ensure that the employee is being properly compensated. Rules regarding compensation of exempt employees who work only partial workweeks continue to apply. Employers should also establish written policies that address the COVID-19 virus and other infectious diseases that can be transmitted in the workplace. Those policies should discuss when an ill employee must stay home or will be sent home, and the circumstances of when they will be allowed to return.
For example, in the event an employee becomes ill with the virus or has been exposed to someone with the virus, an employer can require the employee to stay home for the 14-day quarantine period and to obtain a fitness-for-duty notice from their physician. Flexible-leave policies may include providing leave during this period or until the employee returns with a fitness-for-duty note. As always, these policies must be administered uniformly.
Employers should be aware that the guidance still leaves unanswered some potentially difficult decisions regarding how to handle issues of health privacy, claims of racial discrimination, and pay/sick-leave particulars, among many others. Employers need to try to balance the legally protected entitlements of their workers against whatever policies they adopt to keep those same workers safe. We at Hinckley Allen are available to assist in the development of policies and to answer your questions on these issues.
We are here to help answer specific questions and offer advice on your options. Feel free to contact Lisa A. Zaccardelli or any other member of our Labor & Employment group.
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