What every employer should know about responding to coronavirus
Navigating the balance of being prepared and not being panicked
The novel coronavirus (COVID-19) is spreading. This week, Gov. Polis declared a “State of Emergency” under Colorado’s Disaster Emergency Act, which gives him expansive powers. However, to date, he has only exercised that power to a limited degree, and, like all of us, is trying to balance between being prepared but not being panicked. Colorado residents are understandably concerned about the situation – especially at work.
How can employers effectively and legally protect employees? The following are some best practices that can help mitigate legal risk in responding to the outbreak.
Communicate with employees
Reassure your employees that you’re following reputable sources (and share these with them) to monitor the outbreak, travel restrictions, prevention guidance and more. (The Center for Disease Control and Prevention is a great source of information.) However, it’s important not to offer medical advice or voice opinions.
Do, on the other hand, remind employees to stay home when they exhibit symptoms of illness and reiterate any sick leave or paid time off policies and consider amending them on a temporary basis. In addition, refresh employees of your policies and procedures for voicing concerns and requesting accommodations. Similarly, remind supervisors of their responsibilities for responding to those inquiries.
Consider appointing a qualified individual as the COVID-19-point person to ensure messaging consistency and response uniformity across your organization.
Keep the workplace safe and healthy
Re-emphasize the importance of handwashing and hygiene to your employees and be sure that high-touch areas receive regular deep cleaning and make cleaning supplies available. Plus, make sure that you are complying with Occupational Safety and Health Administration (OSHA) regulations and be aware of any industry-specific precautionary measures recommended for high-risk environments like healthcare.
If an employee is diagnosed with COVID-19, inform others of their possible exposure while maintaining the confidentiality of the infected person, as required by the Americans with Disabilities Act (ADA) and relevant state laws. Stay abreast of any special regulations that pertain to your industry, such as the Health Insurance Portability and Accountability Act (HIPPA), and consider public health reporting requirements, public safety need and protections accordingly.
Review your remote access and telecommuting policies and empower employees to take advantage of these opportunities under appropriate circumstances and on a non-discriminatory basis. However, be cautious about requiring employees to work from home if they display certain symptoms since many of the early symptoms of COVID-19 share similarities with the common cold.
Revisit your policies
If you can, postpone work travel to impacted areas and consider postponing or conducting large group events via videoconference. Make sure that you stay up to date on travel guidance from official sources. And remember, requiring your employees to travel to high-risk areas could expose employers to employment law or OSHA liabilities.
Should an employee refuse to travel or work over outbreak concerns, review whether such concerns are reasonable and validated by current Centers for Disease Control recommendations before insisting on travel or taking corrective action.
Consider a temporary policy that employees stay home for 14 days after having direct contact with someone who has been exposed or diagnosed. You will also need to consider whether such stays are paid or unpaid. Apply polices uniformly regardless of race, country of origin or other protected characteristics.
Respect privacy and the law
If an employee requests an accommodation related to COVID-19, treat it the same way you would any other request for a possible disability accommodation. (It is unclear if and when COVID-19 will be considered a disability under the ADA or similar state statutes.) Regardless of whether it is deemed a disability, you should still engage in the “interactive process” with the employee to explore possible “reasonable accommodations.”
Be sure to grant all necessary leaves required by state and federal laws as well as your own organization’s policies. As COVID-19 will likely be qualified as a “serious health condition,” under the Family Medical Leave Act (FMLA) and state law, employers will need to consider complying with that statute regarding time off (for the employee’s own serious health condition or that of his/her family ) and job protection.
Don’t directly ask employees about their condition or require medical examinations unless they are “job-related and consistent with business necessity” or you can identify a “direct threat” to the workplace. “Direct threat” is defined by the ADA as “[a] significant risk of substantial harm to health or safety of self or others that cannot be eliminated or reduced by reasonable accommodation,” (29 C.F.R. § 1630.2(r)).
Seek guidance only from reputable public health agencies in determining threat.
New cases of COVID-19 are being diagnosed daily. Employers across industries should immediately take stock of their policies and procedures and develop response plans to legally manage the concerns of their staff, ensure safety and health in the workplace and protect the privacy of individuals. Regularly monitor information and guidance from U.S. public health authorities and consult legal counsel as needed to navigate various OSHA and employment laws in light of the outbreak. And remember: be prepared and not panicked.
Donald L. Samuels is a principal attorney and labor and employment practice chair at Polsinelli.