An Employer’s Guide to Managing the Coronavirus in the Workplace

March 9, 2020
Publications

According to the Centers for Disease Control and Prevention (CDC), the Coronavirus, or COVID-19 as it has been named, is a respiratory illness that can spread from person to person. COVID-19 is a novel coronavirus that was first identified in late 2019 during an investigation into an outbreak in Wuhan, China. Cases of coronavirus have passed 100,000 globally, with a significant number of reported and confirmed cases in the US. The most common symptoms of the virus are fever, tiredness, dry cough, aches and pains, nasal congestion, runny nose, sore throat or diarrhea.

All employers need to consider how best to limit the impact of COVID-19 on their business and protect their employees. The CDC has published Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19), which include the following guidance.

Emphasize staying home when sick. Require sick employees to stay home until free of fever, signs of a fever, and any other symptoms for at least 24 hours without use of fever-reducing or other symptom suppressing medicines.
Separate sick employees. The CDC recommends that employees who appear to have flu-like symptoms upon arrival to work or become sick during the day should be separated from other employees and sent home immediately.
Emphasize Measures to Prevent Spread. Encourage good respiratory etiquette (covering your mouth and nose with your elbow when you cough or sneeze) and hand hygiene by all employees – place posters on proper hygiene around the workplace, provide tissues and no-touch disposal receptacles; instruct employees on effective hand sanitation; and ensure adequate supplies of alcohol-based hand sanitizer.
Perform routine environmental cleaning.
Consider limiting all non-essential business travel and using Skype or web-based meetings as an alternative.
Monitor and plan for increased employee absence due to illness of the employee or their family members, or potential exposure or school closings.
Review available occupational health resources on a regular basis. Closely monitor daily updates from public health officials as up-to-date information is key due to the rapidly evolving situation. The main sources of information are provided below.
1. www.cdc.gov /coronavirus/2019-ncov/specific-groups/guidance-business-response.html
2. www.who.int

The continued spread of this virus internationally and in the US has created a number of practical and legal issues for employers to consider, including the following:

What can employers do to limit the likelihood of exposure to the virus?
Employers may choose to limit work-related travel and restrict visitors to the workplace, and they may require that employees who exhibit flu-like symptoms stay at home or go home if they have reported to work. Additionally, if an employee has been out of the office due to an illness or quarantine, an employer can require that the employee provide a doctor’s note certifying their fitness to return to work, or other verification that he or she has been symptom free for at least 24 hours.

In order to provide greater distancing and limit potential exposure, employers may want to consider flexible work policies, such as work from home, flexible work hours, or staggered shifts. If telecommuting will be permitted, businesses should ensure that information technology systems are sufficient to permit increased usage of remote access.

Employers can require employees who have traveled to key affected areas, for personal or business reasons, to stay home for a certain period of time (up to 14 days).

How does the Americans with Disabilities Act (ADA) affect an employer’s Coronavirus preparation and response?
The ADA prohibits discrimination in the workplace against employees and applicants with disabilities and requires employers to provide reasonable accommodations when necessary. The ADA also limits the type of medically related inquiries that an employer can ask of an applicant or employee, and imposes strict confidentiality requirements relating to any medical information that is obtained. A medical inquiry or examination during employment is permissible only if it is job-related and consistent with business necessity. If an employer has a reasonable belief based on objective evidence that an employee will pose a direct threat to other employees due to a medical condition, then medical inquiries concerning that condition will be job-related and consistent with business necessity. According to the Equal Employment Opportunity Commission (EEOC), taking an employee’s temperature to determine if he or she has a fever is an example of a medical inquiry.

The EEOC has issued Guidance on Pandemic Preparedness in the workplace that offers some helpful guidelines for employers, which can be found at www.eeoc.gov/facts/pandemic_flu.html. According to the EEOC Guidance, whether the Coronavirus will rise to the level of a “direct threat” under the ADA will depend on it if reaches pandemic levels versus current epidemic levels and the severity of the illness/risk. Employers who are considering temperature scans or other medical inquiries should consult with labor and employment counsel to ensure that the medical inquiry is permitted under the ADA.

It is also important to emphasize that employers are required under the ADA to keep all medical information received from or about an employee confidential.

How should employers pay employees who are ill or quarantined as a result of the Coronavirus?
Employers may require an employee who needs time off work due to symptoms or potential exposure to the virus to use available paid time off, such as sick leave or vacation. If paid time off benefits are exhausted, the law does not generally require employees to be paid when not working. However, before making any salary deduction from an employee who is exempt from the overtime requirements of the Fair Labor Standards Act, employers should ensure that the exempt employee performed no work in the workweek, or that the deduction is otherwise permissible.

The CDC also recommends that employers consider whether current leave and attendance policies are flexible enough to allow employees who have symptoms or have potentially been exposed to the virus, but cannot work from home, to take time off from work.

What other steps should employers take to prepare?
Employers should be ready to implement strategies to protect their employees from COVID-19 while ensuring business continuity. This is accomplished by developing and implementing a Business Continuity and Disaster Recovery Plan to maintain operations without interruption of vital business functions. Key issues for employers to consider include:

How many absences can the organization handle before business operations are interrupted?
How will the business continue to operate during an interruption?
What changes can be made to keep the business operating effectively?

Employers should consider establishing a critical incident response team to manage this plan once implemented. Finally, frequent communication with employees will be necessary to assure them that the business has a plan to keep them safe and keep the business running.

If you require support in creating your preparedness plan, or in addressing any specific circumstances that may arise, please do not hesitate to contact any member of the McNees Labor and Employment Group.

© 2020 McNees Wallace & Nurick LLC
McNees Employment Law Client Alert is presented with the understanding that the publisher does not render specific legal, accounting or other professional service to the reader. Due to the rapidly changing nature of the law, information contained in this publication may become outdated. Anyone using this material must always research original sources of authority and update this information to ensure accuracy and applicability to specific legal matters. In no event will the authors, the reviewers or the publisher be liable for any damage, whether direct, indirect or consequential, claimed to result from the use of this material.