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Workplace Considerations & Policies Under Threat Of A Covid-19 Outbreak

  • Review your workplace policies to consider any measures necessary to protect employees from the current outbreak:
    • Travel policies – consider alternatives to work-related travel to affected areas, and other potential measures to implement around business and personal travel
    • Prepare policies for operations under multiple scenarios and locations
    • Develop business continuity plans in preparation for closures in offices and facilities
    • Test remote access to systems
    • Identify critical business functions which are unable to be performed remotely and develop solutions to perform those functions
  • Stay on top of recommendations from the CDC, WHO and OSHA to determine best course of action amidst the possibility of an outbreak that may impact the workplace:
    • Devise plans to meet minimum duties and basic employee recordkeeping
    • Prepare for communication plan to all employees and local government in the event of any possible exposure
    • Provide protective equipment if warranted and consistent with OSHA guidance
    • Avoid alarmist or speculative language in any communications with employees, and stick to providing factual information based on official guidance.
  • If an employee exhibits symptoms of contagious illnesses at work, Employers may – and should – send employees home.

Respond quickly if an Employee appears sick or presents other known risk factors. The CDC tells us that if an employee: (1) recently traveled to a restricted area under a Travel Advisory according to the U.S. State Department; (2) was in close contact to someone who has confirmed coronavirus; or (3) appears to have acute respiratory illness symptoms (such as cough or shortness of breath), employers are permitted to and should ask them to seek a public health assessment to determine the need for medical evaluation, and require them to leave the workplace immediately.

According to the EEOC, sending an employee home who displays symptoms of contagious illness does not run afoul of the ADA’s restrictions on disability-related actions because: (i) if the illness ultimately turns out to be relatively mild or “run of the mill” (such as seasonal influenza), then it would not have constituted a covered disability in the first place; and (ii) if the illness does turn out to be severe (such that it may constitute a disability under the law), then the actions would be warranted under a direct threat analysis. In either case, an employer can send an employee home who is displaying symptoms of contagious illness, even if such an act is against the employee’s wishes. Employers should consider making it clear in their policies that employees who have symptoms of a potential contagious illness must not report to work while they are sick.

If an employee tests positive for coronavirus, or is suspected to have coronavirus, all employees who have been in contact with that employee should be required to self-quarantine for a 14-day period. Have the infected employee identify all individuals who worked in their vicinity so the company can instruct those workers to self-quarantine. Employers should inform fellow employees of their possible exposure to the coronavirus in the workplace while maintaining confidentiality as required by the ADA.

  • Does FMLA, or do other applicable leave laws, apply?

An employee experiencing a serious health condition or who requires time to care for a family member with such a condition may be entitled to take unpaid leave under the federal Family and Medical Leave Act (FMLA) or state-law analogues. Employees may also be eligible for leave as a reasonable accommodation under the ADA or related state or local law, if the underlying condition constitutes a qualifying disability. However, employees are generally not entitled to take FMLA or reasonable accommodation leave to stay at home to avoid getting sick (though an exception may exist where a preexisting medical condition is likely to be worsened by exposure to a contagious disease).

  • Be aware of OSHA requirements that may apply.

OSHA has not yet promulgated standards covering the Coronavirus, but it has given notice that employers should be aware of the following general standards to which employers may be subject under OSHA:

    • General Duty Clause: The OSHA General Duty Clause requires employers to furnish “a place of employment which [is] free from recognized hazards that are causing or likely to cause the death or serious physical harm to … employees.” Employers should take any readily attainable steps to prevent the spread of the Coronavirus (and other contagious illnesses) within the workplace, such as: making hand sanitizer available to employees, ensuring surfaces and eating areas are disinfected regularly, and encouraging sick employees to stay home. Further, Employers should continue to evaluate policies around allowing employees to work remotely from home.
    • Personal Protective Equipment: OSHA requires protective equipment, clothing, and barriers be provided whenever it is necessary to prevent employees from being exposed to environmental hazards. Employers must assess the workplace, determine if hazards are present, and if so, require employees to use protective equipment. Consider the equipment necessary to protect any employees from the spread of Coronavirus.
    • Recordkeeping and Reporting Requirements: OSHA requires that certain employers keep a record of certain work-related illness and injuries. OSHA has created an exemption for recording instances of the standard cold and flu, but it has deemed the 2019 Novel Coronavirus a recordable illness when a worker is infected on the job.
  • Implement an Employee Telecommuting Policy: Social distancing is one of the most effective ways to combat the spread of the coronavirus. Employers should consider ways to support essential work remotely for the next few weeks. Any telecommuting policy should be applied uniformly for all similarly situated employees. A telecommuting policy is recommended to include:
    • Direction to nonexempt employees that they must continue to comply with the company’s timekeeping policies, create contemporaneous time records, and accurately record all working time.
    • Expectations regarding frequency of communications with supervisors.
    • Instructions to employees identifying essential tools and resources they will need, including remote, encrypted access to company systems.
    • Terms outlining any electronic devices employees should use while they are telecommuting. If employees can or must use personal electronic devices, consider any additional measures necessary to safeguard company property and confidential information.
    • Include a reminder about employee’s responsibilities to safeguard company & client confidential information, including recovery of all confidential information employees take home to telecommute.
  • Consider an Emergency Paid Leave Policy.

Nonexempt employees who are told not to report to work and cannot perform work remotely generally do not need to be paid. Exempt employees who cannot report for work for an entire workweek, and perform no work during that workweek, also do need not be paid for the week they perform no work. For those employees, and there may be many, who have not have accrued paid sick or vacation leave under company leave policies may not be eligible or entitled to salary continuation under any state or local leave laws. In the case of a company with a paid time off policy, the company can mandate that the employee use their accrued time off during the period they are absent from work and not performing work remotely. Though not required by law, while balancing workplace safety and business continuation concerns, businesses may consider implementing an emergency paid leave policy providing for employees affected by coronavirus to be paid during the leave period