Recommended Employer Response to the CoronavirusBy: Amanda Thibodeau
March 5, 2020
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The spread of coronavirus (COVID-19), and its effects on business markets, travel, and public health, are dominating the news cycle. As this public health emergency (and related public anxiety) continues to develop, it is critical that employers adopt measured policies that promote safe working environments, and that employers identify and execute on strategies to limit business interruptions.
The Centers for Disease Control and Prevention (“CDC”) has released an interim guidance for private sector employers that relates to the management of coronavirus concerns. We advise that the CDC’s guidance provides employers with a reasoned roadmap for developing coronavirus response strategies. The core themes of the guidance are discussed below:
Promoting Use of Sick Time
Now is a great time for employers to review their current sick time policies for compliance with state law. Employers are also recommended to review these policies with their workforce and encourage their use.
Employers may also want to review their policies to be prepared for increased numbers of employees being absent, either for sickness, or to care for family members, including children, in the case of illness or if schools and daycares temporarily shut down.
Cleaning Workspaces and Encouraging Good Hygiene
Employers are also recommended to review hand hygiene and cough and sneeze etiquette with their employees to help minimize the spread of the virus.
Many large, global companies have ultimately decided to pause non-essential international travel and are encouraging employees in other countries to work remotely (or are shutting down operations completely in certain affected areas, like China). Additionally, many companies are requesting returning employees to work from home for a period of time before returning to the office.
Do Not Discriminate
Mandated employee quarantines may also run afoul of the ADA if not implemented correctly. If an employer wishes to implement a quarantine, it is recommended that you allow the employees to work from home, or put them on a paid leave if they cannot work during the quarantine period. Employers should also be mindful of HIPAA privacy violations. While HIPAA does have an exception if a disclosure is necessary to protect the lives of others, employers should thoroughly evaluate the situation before making such a disclosure.
In addition, the Occupational Safety and Health Act (“OSHA”) requires that employers protect the safety of their employees, and this includes protecting employees from exposure to the coronavirus. OSHA recently released resources on their website regarding steps employers may take to control and prevent possible exposures. It is important to be mindful of OSHA regulations in setting your policies, however. OSHA has, for example, regulations on when and how respiratory protections and safety masks must be provided to employees.
Employers must also continue to protect their employees from discrimination on the basis of race, color, national origin, and other protected classes. The targeting of any particular class of the workforce, either by the employer or by other employees, is strictly prohibited under both federal and state laws. Policy decisions must be made with these protections in mind, and employers cannot implement response policies meant to single out any particular protected class.
Have a Plan
In addition to our work in the employment area, we are advising clients in COVID-19 matters associated with contractual liability and obligations, including in the context of force majeure provisions. Please contact Faith Kasparian with questions.