Takeaways

A host of federal, state, and local laws place limits on how employers may implement infection control safeguards—and, conversely, the extent to which they may require employees to continue to work as usual.
Employers may require employees to telework, even without evidence of potential COVID-19 exposure. A more careful approach is required before mandating unpaid leave or use of accrued leave for employees who are not sick or known to be infectious.
Employers must base their decisions on reliable information and ensure they monitor the changing situation.

As coronavirus disease 2019 (abbreviated “COVID-19”) spreads worldwide, businesses in the U.S. face practical and legal employment challenges as they take measures to further the immediate goal of preventing the spread of physical infection to and within their workforces.

As of March 6, 2020,[1] according to the Centers for Disease Control and Prevention (CDC), the potential public health threat posed by COVID-19 is very high—to the United States and globally. However, to date, the CDC has not categorized this epidemic as a worldwide “pandemic disease” and has stated that for “workers in non-healthcare settings and where it is unlikely that work tasks create an increased risk of exposures to COVID-19, the immediate health risk from COVID-19 is considered low.” The Department of Labor (DOL) currently advises that, absent “sustained human-to-human transmission, most American workers are not at significant risk of infection.”  Yet, if the situation in the United States were to shift and a “pandemic disease” declared, and if the U.S. experiences widespread outbreaks with mortality rates significantly exceeding that of seasonal influenza, that could signal that COVID-19 is, indeed, a “direct threat” in U.S. workplaces and would further shift the compliance landscape under the Americans with Disabilities Act (ADA) and the Occupational Health and Safety Act (OSHA).

At this juncture, the middle ground between mild concern and hysteria is to recognize that this is a rapidly evolving situation, and therefore vigilance, monitoring of CDC updates, and continual risk assessment are appropriate for every aspect of the business, including employee relations.

As a highly communicable disease, COVID-19 raises potential employment law compliance issues related to, among others: wage and hour laws, including the Fair Labor Standards Act (FLSA) and equivalent state laws; the ADA and local equivalents; OSHA; the Family and Medical Leave Act (FMLA) and equivalent state laws; and local and municipal paid sick leave laws. Company policies, practices and contracts, including collective bargaining agreements (CBAs), must be considered alongside the essential practicalities of continuing business operations with as little disruption as possible.

As overarching guidance, employers should begin by following the current guidelines from the leading health authorities, as applicable overall to the geographic regions where the employer has a business presence. These include: CDC Guidance for Businesses and Employers; Pandemic Preparedness in the Workplace and the ADA; OSHA’s COVID-19 Overview and Resources for Preventing Workplace Exposure and, internationally, the World Health Organization’s Update on COVID-19 Outbreak.

On a practical level, employers would be prudent to implement at least the following procedures:

Disseminate Current Resources and Information to Workforce

All employers have the basic obligation to provide employees with a safe and healthy workplace. Employers should communicate with workers to underscore that commitment, including with respect to epidemics and disease outbreaks. U.S. employees should be directed to the CDC Coronavirus Website for the most current updates and should be encouraged to consult the following:

Avoid Discrimination Claims

Commentators have noted the spread of misinformation about COVID-19 and how it has caused some consumers to avoid certain ethnic restaurants or engage in other exclusionary behaviors based on irrational fear. In the workplace, employers should avoid workplace discrimination or harassment due to cultural biases or racial perceptions that particular workers are more likely to be exposed to or infected with COVID-19. On a parallel front, employers should recognize the potential ADA implications of the virus, assess any accommodation obligations, and monitor whether any circumstances pose a “direct threat” to the workforce that might justify enhanced precautions such as otherwise unlawful disability-related inquiries and/or medical examinations (which could include measuring an employee’s body temperature) or enhanced OSHA precautions. In compliance with the ADA, employers must also ensure that they protect the confidentiality of any medical information they receive from or about individual employees.

Require Employees to Engage in Preventative Workplace Behaviors

Even though the CDC has not yet declared COVID-19 a pandemic, the precautions listed in the OSHA Employer Guidelines remain prudent. Employers should, at a minimum, require that employees not come into work sick or, after a known exposure to a confirmed case of COVID-19, for at least 14 days. Employers should also explain expectations of proper handwashing and coughing etiquette and distribute/display CDC Posters and Factsheets (including “Stop the Spread of Germs” poster) (available in English, Spanish and Chinese). Many employers are providing additional hand-washing instructions, hand sanitizer stations, workspace sanitizing wipes, and also requesting employees engage in social distancing to the extent possible.

Assess Whether Telework and Additional Preventative Measures Are Appropriate

The CDC has recommended telework as among the most effective approaches to reducing the spread of COVID-19. As feasible, employers should liberally grant requests for extended telework due to exposure concerns or COVD-19 related disruptions, such as school and public transportation closures. Employers should establish compliance and security protocols for timekeeping, expense reimbursement, employee oversight and protection of trade secrets for these remote workers. Where telework is an option, employers should adopt telework policies and utilize telework agreements to delineate the responsibilities of both parties to the arrangement. Many jobs, however, cannot be performed remotely. Depending on workflow and physical layout, many companies are taking additional protective measures for employees who continue to report to the office, such as more frequent cleaning or erecting additional physical barriers between employees in the workplace (especially for traditionally open workspaces).

Establish Leave Administration and Accommodations Guidelines

For employees in jobs not suitable for telework, employers face more difficult decisions. Employees who have a medical condition that places them at heightened health risk could potentially be entitled to job-protected leave (under ADA, FMLA or state law). Employers should also determine whether to provide job protection to employees who are not sick but who seek leave to self-quarantine after exposure to the virus or to avoid infection. Even younger, healthy employees may have legitimate interests in taking heightened safeguards against contracting COVID-19 so as not to jeopardize the health and lives of household members—even if those concerns do not qualify for ADA protection.

Where an employee is required to self-quarantine but has no remaining paid leave available, difficult questions arise as to pay policies, retention of exempt status, and employee morale. Forcing employees to choose between taking measures to protect their colleagues or loss of pay or of accrued leave could lead employees to withhold information from employers. Employers should proceed carefully before requiring an employee to take leave if the employee is not sick, has not recently traveled to or from areas of known high outbreak (“Level 3” and “Level 2” locations per CDC designation), or has not been exposed to a known case. That an employee has recently returned from a U.S. destination that has reported a handful of COVID-19 cases does not appear at this point sufficient reason to prohibit an employee from performing work, unless other symptoms are present or if the employer is prepared to place the employee on paid administrative leave.

Employers should also be mindful that they may only require employees to use statutory paid sick leave if the reason for the absence is covered by the relevant statute (typically, the employee’s own illness or the employee’s request to care for a sick family member).

Establish Travel Guidelines

One of the biggest challenges employers face is how to balance the need for business travel, the desire for personal travel, and the risk of exposure to COVID-19 during travel. Companies must decide whether they wish to restrict business travel into only the high-risk areas identified in the current CDC Risk Assessment, or impose broader restrictions. Where business travel is required, employers should provide and enable a protocol for reducing exposure during travel, and be aware that some employees with heightened sensitivities may require a no-travel job accommodation. Employers cannot bar employees from personal travel, but they can require travel to high-risk areas to be reported, and may also require employees to report any known exposure to COVID-19, whether occurring through travel or otherwise. They may also require returning travelers from high risk areas to self-quarantine up on return.

Establish Protocol for Exposure and Sickness

At this stage in the evolving scenario, employers should work with counsel to develop protocols for how it will handle, among other things, employees returning from travel, employees who have been exposed to either confirmed or potential cases of COVID-19, employees who have respiratory symptoms similar to COVID-19 but have not yet been diagnosed, and employees who have been diagnosed. Protocols should cover whether self-quarantine will be requested or required, what reporting is mandated, what leave policies will apply, and what return to work documentation is required.

Assess Potential Work Slowdown/Stoppage Issues

If a significant portion of a company’s workforce is involved in round-the-clock manufacturing, the company should determine what emergency protocols could be deployed to avoid work stoppage (e.g. lock-out contingency plans, increased hiring of part-time workers now, etc.). It should also identify any CBA issues that affect contingency planning and initiate planning with union representatives for coordination in developing the guidelines and protocols listed above. If a significant downturn in business is anticipated, furlough and RIF planning, taking into account applicable Worker Adjustment and Retraining Notification Act (WARN) considerations, are critical.

Engage in Crisis Management Response Approach to Ensure Coordinated Risk Management and Business Continuity

COVID-19 has the potential to impact all areas of a business. Assessment of these overall business issues, with coordination by a crisis management team, is a prudent approach to ensure all of the risks are assessed and managed. Pillsbury’s Crisis Management Team works with clients to coordinate responses on various interdisciplinary legal fronts, including

  • Employment
  • Business Contracts and Supply Chain Interruptions
  • Insurance Recovery
  • QA and Regulatory Compliance
  • CyberSecurity
  • Real Estate

Pillsbury clients may obtain advice and strategic input on workplace preparedness plans concerning COVID-19, by contacting Laura Latham , Kimberly Higgins, Julia Judish or other Pillsbury employment lawyers, who can also coordinate involvement of colleagues on the Pillsbury Crisis Management Team.

[1] This information is current as of March 10, 2020. For the most up-to-date information, readers are encouraged to consult the websites identified in this article.