Coronavirus (“COVID-19”) - Employer Guidance and Strategies

03.09.2020

By Rosemary Gill Kenyon and Jenny Bobbitt

As the number of reported cases of COVID-19 increases in the United States and in the world, employers are faced with many questions and decisions about how to protect their workforces while continuing to run their businesses. The Centers for Disease Control and Prevention (“CDC”) in particular has issued interim guidance about specific steps employers should take now to help prevent workplace exposures to COVID-19 and other acute respiratory illnesses. There are several employment laws that impact decisions about health in the workplace. The following article provides practical guidance and recommended strategies to help employers navigate these laws in order to effectively respond to the COVID-19 outbreak.

Transmission Prevention and the Occupational Safety and Health Act
Employers have a legal obligation under Section 5(a)(1) of the Occupational Safety and Health Act to provide “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm . . ..” To comply with this legal requirement, in the first instance, employers should follow the guidelines promulgated by the Occupational Safety and Health Administration (“OSHA”), the CDC and the World Health Organization (“WHO”) to provide a safe workplace. Employers should instruct employees who have symptoms of acute respiratory illness to stay away from the workplace. As advised by the CDC, employers also may find it necessary to take strong measures to bar infected or exposed individuals from the workplace to prevent the spread of the illness, even if the employees wish to continue working.

Inquiries into Employee Health and the Americans with Disabilities Act
As a general rule, employers are prohibited from making health-related inquiries under the Americans with Disabilities Act (“ADA”) and similar state laws unless such inquiries are job-related and consistent with business necessity. Health inquiries are considered job-related and are consistent with business necessity when based on objective evidence that an employee may pose a direct threat to co-workers due to a medical condition. In light of the continued worldwide spread of COVID-19, employers should follow the CDC’s guidance on health inquires. The Equal Employment Opportunity Commission (“EEOC”) has recently emphasized that while the ADA rules continue to apply, they do not interfere or prevent employers from following the guidelines and suggestions made by the CDC.

The CDC has advised employers to do the following, among other things:

An employer should ask employees to notify Human Resources or their supervisors if: (i) the employee is confirmed to have COVID-19; or (ii) a family member at home is confirmed to have COVID-19.
If an employee is confirmed to have COVID-19, employers should inform fellow employees of their possible exposure, but otherwise maintain confidentiality as required by the ADA.
If an employee reports to work exhibiting or later develops symptoms of an acute respiratory illness (i.e., cough, shortness of breath), the employee should be separated from other employees and sent home immediately.
An employee who has been exposed to COVID-19 should stay home from work for the virus’s 14-day incubation period.

Although a temporary infection such as COVID-19 might not be considered a disability or qualify the employee for protection under the ADA, the employer may be required to make reasonable accommodations if the employee’s illness is severe enough or results in long-term impairments.

Telecommuting or Working from Home
Employers should evaluate job duties and responsibilities now to determine which jobs may be performed from home or remotely so they are prepared should employees be required to stay away from the workforce due to exposure to or confirmation of COVID-19.

Paid and Unpaid Sick Leave and Family and Medical Leave
Employers should examine their paid sick leave policies and be sure that they are informing employees on how such leave will apply to COVID-19 in the event that an employee is too ill to work, even from home, or the job duties may not be performed remotely. This includes complying with the many state paid sick leave laws that have been enacted recently. If an employer does not provide paid sick leave, developing a new policy is advisable to provide an incentive for ill employees to stay away from work. In addition, it is likely that an employee who becomes ill or must take care of a family member who has COVID-19 will be entitled to unpaid leave under the Family and Medical Leave Act or its many state counterparts.

As a practical matter, employers should plan for more widespread absences if employees must stay home to care for well children if schools and child care facilities are closed. These absences may not technically be covered by existing leave policies or laws, but may become a fact of life to be addressed.

Employers should be flexible in requiring medical notes to support absences. The CDC recommends that employers not require a healthcare provider’s note for employees who have acute respiratory illnesses since many medical offices will be too busy to provide them in a timely manner.

Travel and Business Meetings
Employers should carefully consider whether employee travel outside of or within the United States is necessary or essential, especially if the travel is to an area experiencing a widespread outbreak of COVID-19. Many employers give employees a choice on traveling under these circumstances or prohibit certain or all travel. If an employee travels to an area with a widespread outbreak, either for work or personal reasons, the employer should refer to the CDC’s risk assessment guidance to determine whether the employee should be required to remain out of the workplace for the virus’s 14-day incubation period. Employers should ask employees to report on all travel plans, whether personal or work-related.

Employers also should consider limiting large and small face-to-face meetings.

Confidentiality Obligations
As employers implement COVID-19 preparedness plans, it is possible that they may receive information about employees’ susceptibility to viral infections or other health-related information. The ADA requires employers to maintain the confidentiality of all health information and they should take care in limiting disclosure of such information. Employers also should limit disclosure of an employee’s diagnosis of COVID-19 to only those who need to know from a health and safety standpoint. Under both the ADA and the Genetic Information Non-Discrimination Act, employers that receive health or genetic information from their employees must maintain such information separate from other employment-related files and treat all such information as confidential.

Practical Guidance for Employers

Develop a Communicable Illness Policy for your workforce.
Require those who are ill to stay away from the workplace.
Require employees to report to Human Resources if they or a member of their household have COVID-19.
Require employees who have been exposed to COVID-19 to stay out of the workplace for the virus’s 14-day incubation period.
Prepare a plan to communicate with exposed employees about their exposure and what to do.
If an employer does not have flexible and non-punitive sick leave and remote work policies, it should consider adopting them now to encourage employees to stay at home while ill.
Explain clearly to employees how they may use time-off policies or leave, paid or unpaid, and the availability of telecommuting options.
Plan for absences of a large number of employees if schools or day cares are shut down or if the illness continues to spread.
Consider what travel will or will not be allowed.
Require employees to report to Human Resources on their personal and work-related travel.
Circulate information regarding prevention measures and hygienic practices such as covering mouths and noses with a tissue while coughing or sneezing and thoroughly washing hands with soap and water.
Routinely clean frequently-touched surfaces such as workstations, countertops, and doorknobs.
Stay up-to-date with the CDC’s guidance and the guidance from the WHO, OSHA and EEOC.