March 6, 2020
Background
The rapid emergence of the novel coronavirus (“COVID-19” or “coronavirus”) has employers rightfully questioning how best to ensure the health and safety of their employees. Indeed, employers have an affirmative duty to maintain a safe workplace, pursuant to the U.S. Occupational Safety and Health Act (“OSHA”).
The coronavirus has proven to be contagious with varying physical symptoms. Given all that is known about the coronavirus, and what is yet to be learned, employers should take proactive measures to ensure they are maintaining a safe workplace.
Individuals infected with coronavirus typically display symptoms including: mild to severe respiratory illness, fever, cough, and difficulty breathing. At present, there is no vaccine, cure, or specific treatment for coronavirus. Although, as of March 5, 2020, the Senate is in the process of directing significant resources to maintain and stop the spread of the coronavirus nationally.
According to the Centers for Disease Control and Prevention (“CDC”) there are a host of simple measures individuals can take to minimize their risk of contracting the virus, such as:
- Frequent hand washing;
- Maintaining a safe distance from others of 6 ft. to 9 ft. (“social distancing”);
- Avoiding contact with one’s nose, mouth, and eyes to prevent the virus from entering the body; and
- Seeking medical care if one believes he or she is exhibiting symptoms of the virus.
Although not yet confirmed, one of the means through which the coronavirus is believed to be spread is through person-to-person transmission. It is suspected that it is transmitted through coughing and sneezing by infected individuals. Accordingly, the workplace environment is a breeding ground for the spread of the coronavirus. Below, we address best practices that employers should consider using to combat the spread of the coronavirus and alleviate employee concerns.
Recommended Workplace Practices
1) Communicate
In order to avoid increased exposure of the coronavirus in the workplace, employers should maintain a channel of open communication with their employees. In doing so, employers should consider the following:
- Ask employees about the countries they have recently traveled to and if they may have had any exposure to coronavirus;
- Ask if employees have had close contact with others who have traveled to at-risk countries and/or may have otherwise been exposed to the virus;
- Require employees to limit all non-essential travel to affected regions;
- Provide instructions and updates from the Centers for Disease Control and Prevention (“CDC”) and the World Health Organization (“WHO”) to employees via email as the updates arise. Knowledge and education go a long way in maintaining a calm and rational approach, which is invaluable in these situations; and
- Avoid panic by assuring employees that developments are being actively monitored and the employer will respond as necessary.
2) Act When Appropriate
There are several proactive and reactive measures employers should consider in responding to the coronavirus including:
- Review and implementation of their Communicable Disease Plan and Emergency Action policies and protocols (seek counsel if needed);
- If an employer reasonably concludes that an employee poses a coronavirus risk (e.g. recent travel to affected areas and/or exhibition of symptoms), the employer may request that the employee stay home for the coronavirus’ incubation period, which is currently identified as 14-days. Note that such an employee could potentially be eligible for protected leave under the federal Family Medical Leave Act (“FMLA”) and corresponding state laws where applicable. If an employee is unable to work for health reasons or relating to a potential health threat to other employees, the employer may want to consider placing the employee on a paid administrative leave a minimum of the 14-day incubation period;
- Consider providing alcohol based hand-sanitizers and other cleaning materials to encourage positive hygienic behavior, which the CDC has confirmed serves as a preventative measure;
- Encourage employees to work from home if exhibiting signs and symptoms of illness;
- Encourage employees to use precautionary measures to protect against the spread of illness, including washing hands regularly and using common sense to avoid the spread of germs;
- Require self-monitoring for both location-based and remote employees for symptoms of the virus. If symptoms develop, the employee should immediately inform the company and should not return to work prior to completing a Fitness for Duty evaluation with their medical provider; and
- In the event an employee does contract the coronavirus, contact the CDC and local health department, inform employees, and work with those affected to monitor and treat their illness.
3) Handle Confirmed Cases Quickly
In the event an employee does contract the coronavirus, the employer should:
- Contact the CDC and local health department, inform employees, and work with those affected to monitor and treat their illness;
- Hire a hazmat company to clean and disinfect the workplace;
- Permit employees to expense their medical test;
- If the employee contracted the coronavirus at work or in connection with a work-related activity, such as traveling for work, communicate with employer’s workers’ compensation carrier to determine if there is coverage available. Note that generally, airborne diseases are often excluded from workers compensation with the exception of some healthcare providers;
- Apprise employees to monitor their health and be mindful of symptoms without identifying the employee who has tested positive;
- Place the employee on administrative leave or provide the employee with the opportunity and ability to work from home; and
- Observe the usual company policy regarding administrative leave; such leave may be paid or unpaid pursuant to regular company policy.
4) Avoid Existing Legal Pitfalls
While it is vital that employers take all necessary measures to protect and maintain a safe work environment, there are limits to steps employers may take which could infringe upon an employee’s right to privacy. Employers should remember to comply with other legal obligations such as:
- Maintain employee privacy. Employers should refrain from identifying or disclosing to other employees the reason that an employee is not at work. This includes not disclosing why an employee is working from home;
- Safeguard employee medical information. Any communications with employees about their medical conditions, or documents related thereto, should be kept in a secure location apart from the employee’s personnel file;
- Strictly comply with all disability and leave laws. Employers should engage in the interactive process and accommodate employees who exhibit signs and symptoms of the virus by allowing them time off from work for medical care; and
- Ensure that the employer is not engaging in discriminatory or retaliatory conduct against an employee who tests positive for coronavirus, or an employee who exhibits symptoms of, or is suspected to have, coronavirus.
Gordon Rees Scully Mansukhani’s employment attorneys are equipped to provide advice and counsel on policies and procedures related to handling the coronavirus.
For updates pertaining to the coronavirus, the CDC and WHO websites are provided here:
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Visit our COVID-19 Hub for ongoing updates.