As the Coronavirus (also known as “COVID-19”) continues to spread globally, including 43 known cases and increased reports of infections across ten U.S. states, the Centers for Disease Control  and Prevention (“CDC”) has warned that this virus is likely to cause a pandemic. Business owners and employees alike are becoming increasingly concerned about the impact that this virus may have on business operations, and the general health and safety of the workplace. This Alert summarizes the presently known prevention methods that individuals and employers can utilize to lessen potential exposure to this virus, critical action items for effective disease preparedness plans, and related implications under the ADA, FMLA, FLSA that every business owner should know.

What Is the Coronavirus (COVID-19)?

The coronavirus, otherwise known as “COVID-19” is a pneumonia-like respiratory disease that was first detected in China and has now spread to more than 50 countries internationally, including the U.S. COVID-19 was declared a public health emergency by the World Health Organization on January 30, 2020.

Of the more than 87,000 known cases of COVID-19 worldwide, there are presently 43 confirmed cases in the U.S.

What Are the Symptoms of the Virus?

According to the CDC, symptoms of the virus can be mild or severe (including illness resulting in death) and generally include fever, cough and shortness of breath, which can surface 2-14 days after exposure. The virus can spread through person-to-person contact (i.e., through cough or sneeze), or “community spread” where people are infected with the virus in a particular area, but do not know where they became infected.

The CDC has stated that most people in the U.S. presently have little immediate risk of exposure to the virus; however, the global spread and impact of the virus is likely to cause a "pandemic."

General Prevention Measures for Individuals

• Avoid close contact with people who are sick.
• Avoid touching your eyes, nose, and mouth.
• Stay home when you are sick.
• Cover your cough or sneeze with a tissue, then throw the tissue in the trash.
• Clean and disinfect frequently touched objects and surfaces using a regular household cleaning spray or wipe.
• Follow CDC’s recommendations for using a facemask.
  • CDC does not recommend that people who are well wear a facemask to protect themselves from respiratory diseases, including COVID-19.
  • Facemasks should be used by people who show symptoms of COVID-19 to help prevent the spread of the disease to others. The use of facemasks is also crucial for health workers and people who are taking care of someone in close settings (at home or in a health care facility).
• Wash your hands often with soap and water for at least 20 seconds, especially after going to the bathroom; before eating; and after blowing your nose, coughing, or sneezing.
• Individuals who are sick and who have symptoms that may be indicative of the virus should immediately call their healthcare provider for assistance, and may consult the CDC’s recommendations here.

General Prevention Measures for Employers

• Place posters at entrance and around the workplace encouraging employees to:
  • Stay home if they are sick, or may be sick (especially if experiencing fever, cough, or shortness of breath).
  • Engage in appropriate cough and sneeze etiquette.
  • Maintain hand hygiene.
• Employees who appear to have symptoms of respiratory illness (including cough or shortness of breath) should be separated from other employees and be sent home immediately.
  • Employees should remain home until they are free of a fever, or symptoms of a fever, for at least 24 hours without the use of medication (including over the counter treatments).
• Ensure that employees are aware of any paid/unpaid sick time and personal leave policies.
  • Be flexible about work-from-home policies for any employees who are sick or who are staying home to care for a sick family member.
• If an employee becomes sick while traveling, they should promptly notify their supervisor and contact a healthcare professional, if needed.
• Supply additional tissues, disposable wipes, hand sanitizer and no-touch trash cans throughout business premises. Encourage employees to wipe down commonly used surfaces.
• Ensure that all soap, tissue, hand sanitizers and other hygiene supplies are well stocked.
• As always, businesses should not make any determinations of risk based on an employee’s national origin, race or any other protected category.
• Employers should maintain the confidentiality of any individual confirmed with COVID-19, just as they would with an employee who has contracted any other virus or illness. Disease Prevention/Preparedness Plan Tips (Including CDC/OSHA Recommendations)
• Determine which staff are essential to maintaining business operations, versus non-essential employees in the event that emergency circumstances arise.
  • Identify alternative suppliers, prioritize customers, or even temporarily suspend certain operations as needed.
• Consider ways to reduce in-person and close-quarters interactions amongst staff, including increasing phone or video conferences, spreading out staff work stations, staggering work shifts, allowing staff to work from home, sending emails instead of holding non-mandatory staff meetings, etc.
  • CDC defines "close contact" as being about six (6) feet from an infected person or within the room or care area of an infected patient for a prolonged period while not wearing recommended PPE. Close contact generally does not include brief interactions, such as walking past a person.
• Cross-train personnel to perform essential functions of priority positions so that businesses can maintain operations in the event that other key staff are absent.
• Businesses with different locations should be prepared to implement different or increased precautions at each facility, depending on local risk assessment.
• Communicate regularly with staff concerning important updates about business operations, virus prevention and implementation of their outbreak response plan.
• Review employment policies to make sure they are consistent with current public health recommendations.
• Establish a process (i.e., point person, website, bulletin board) to communicate information to employees and business partners on employer’s infectious disease outbreak response plans and latest COVID-19 information.
• Workers who conduct cleaning, healthcare work or other tasks where they are more likely to have increased exposure to the virus should be required to wear appropriate PPE for their position as recommended by OSHA.
  • Such employees must be protected from exposure to blood, certain body fluids, and other potentially infectious materials covered by OSHA’s Bloodborne Pathogens standard (29 CFR 1910.1030) and from hazardous chemicals used in these tasks.
  • In these cases, the PPE (29 CFR 1910 Subpart I) and Hazard Communication (29 CFR 1910.1200) standards may also apply. Do not use compressed air or water sprays to clean potentially contaminated surfaces, as these techniques may aerosolize infectious material.
• Encourage employees to cover their coughs and sneezes with a tissue, or to cough and sneeze into their upper sleeves if tissues are not available.
• Keep work surface and office equipment clean. Discourage employees from using other employees' phones, desks, offices or other work tools and equipment.
• Promote healthy lifestyles, including good nutrition, exercise, and smoking cessation. A person's overall health impacts their body's immune system and can affect their ability to fight off, or recover from, an infectious disease.
• Communicate to employees what options may be available to them for working from home.
• Communicate the office leave policies, policies for getting paid, transportation issues, and day care concerns.
• Communicate the availability of medical screening or other employee health resources (e.g., on-site nurse or employee wellness program to check for pneumonia-like symptoms before employees enter the workplace).
• Consider limiting access to customers and the general public, or ensuring that they can only enter certain areas of the workplace.
• Ensure that sick policies do not penalize or discourage employees with coronavirus-like symptoms from staying home. Recognize that employees with ill family members may need to stay home to care for them.
• Stockpile items such as soap, tissue, hand sanitizer, cleaning supplies and OSHA-recommended personal protective equipment. Make sure that employees know where supplies for hand hygiene are located.
• Provide training, education and informational material about business-essential job functions.
• Work with insurance companies, and state and local health agencies to provide information to employees and customers about medical care in the event of a pandemic, as well as related counseling and mental health resources as necessary.

ADA/FMLA Considerations

Under the Americans with Disabilities Act (ADA) an employer's ability to make disability-related inquiries or require medical examinations is analyzed in three stages: pre-offer, post-offer, and employment:

• At the first stage (prior to an offer of employment), the ADA prohibits all disability-related inquiries and medical examinations, even if they are related to the job.
• At the second stage (after an applicant is given a conditional job offer, but before s/he starts work), an employer may make disability-related inquiries and conduct medical examinations, regardless of whether they are related to the job, as long as it does so for all entering employees in the same job category.
• At the third stage (after employment begins), an employer may make disability-related inquiries and require medical examinations only if they are job-related and consistent with business necessity, which includes circumstances where an employee poses a “direct threat” due to a medical conditions.

A “direct threat” involves a significant risk of substantial harm to the health or safety of the individual or others in the workplace, which cannot be eliminated by reasonable accommodation. Whether a virus like COVID-19 rises to the level of “direct threat” depends on the severity of the illness, which is to be gauged by the latest CDC or other governmental health assessments. COVID-19 has not yet risen to the level of “pandemic” in the U.S.; the CDC has predicted that this is a real possibility.

The ADA requires reasonable accommodations for individuals with disabilities during a “pandemic”:

• When preparing for a possible pandemic, employers cannot ask employees to disclose if they have a compromised immune system or chronic health condition that may make them more susceptible to the virus before a direct threat (i.e., U.S. pandemic) occurs.
  • Instead, in order to determine who is most likely to be absent during a local pandemic, employers can issue “yes or no” inquiries to employees to determine non-medical reasons for absences during a pandemic (i.e., related to childcare, care for other dependents, reliance on public transportation, or the person generally falls into a category identified by the CDC as being high risk for serious complications from COVID-19).
  • An employer can require newly hired employees to have a post-offer medical examination to determine their health status, provided that the employer implements the same requirement for all employees in the same job category.
• During a pandemic:
  • Employers can send employees home if they display coronavirus-like symptoms (fever, cough, shortness of breath).
  • Employers can ask employees if they are experiencing coronavirus like symptoms (provided that they maintain this information in a confidential manner).
  • Generally, measuring body temperature is a medical examination. But during a pandemic, an employer can measure an employee’s body temperature if the employee is displaying severe symptoms of the virus, or if the pandemic is widespread in the community where the employee becomes ill.
  • Require, based on CDC or other state or local public health recommendations, that employees who recently traveled to certain locations remain home for several days after their travel to be sure they are clear of symptoms before returning to work (*however, the CDC has said that COVID-19 symptoms can present between 2-14 days after coming into contact with the virus).
  • An employer may encourage or require employees to telework as an infection-control strategy, based on timely information from public health authorities about pandemic conditions. Telework also may be a reasonable accommodation.
  • An employer can require its employees to wear appropriate personal protective equipment such as gloves to reduce the transmission of the virus, provided that any employee who needs an accommodation for such PPE receives the accommodation, absent undue hardship.
  • Continue to inquire about employee absences (in general), provided that the inquiries are not specific to inquiring about a current or potential disability.
  • Cannot require employees to take a COVID-19 vaccine if one becomes available, but the use of any available vaccines can be strongly encouraged.

An employer may require certification of the illness by the employee’s healthcare provider, as well as certification that the employee is medically able to return to work when that time comes, in accordance with applicable policies and the ADA. Or, for businesses who are short-staffed, employers may be flexible about allowing employees to return to work without a doctor’s note because their doctor’s offices may be dealing with extremely high volume and not able to provide a note in a timely manner.

Under the Family and Medical Leave Act (FMLA): Absences due to an employee's serious health condition are protected by the FMLA, which entitles an eligible employee up to 12 weeks of unpaid leave.

The COVID-19 virus would likely constitute a serious health condition that is protected by the FMLA if an employee or their family member is hospitalized due to the condition, or otherwise incapacitated for more than three consecutive calendar days and receives continuing treatment by a health care provider, as defined in the regulations.

• Ordinarily, the common cold or the flu may not meet the definition of a “serious health condition” under the FMLA regulations (825.114(a)(2)), as they would not be expected to last for more than three consecutive calendar days and require continuing treatment by a health care provider as defined in the regulations.
• If, however, any of these conditions met the regulatory criteria for a serious health condition, e.g., an incapacity of more than three consecutive calendar days that also involves qualifying treatment, then the absence would be protected by the FMLA. (e.g. an individual with the flu is incapacitated for more than three consecutive calendar days and receives continuing treatment, such as visit to a health care provider followed by a regimen of care such as prescription drugs like antibiotics).

Employers can require certification of the illness by the employee's healthcare provider under the FMLA, and certification that the employee is medically able to return to work.

Wage and Hour Issues/FLSA

In the event of office closure due to a COVID-19 outbreak (government-declared emergency), there is no requirement under the FLSA or similar state laws that non-exempt employees be paid for time not worked.

Employers also do not need to pay exempt employees for any week in which no work was performed. For weeks when some work is performed by exempt employees, but limited due to office closure from the outbreak, or the individual is unable to work due to COVID-19-related illness, deductions from pay are only permissable under the FLSA when the employee:

• is absent from work for one or more full days for personal reasons other than sickness or disability; or
• for absences of one or more full days due to sickness or disability if the deduction is made in accordance with a bona fide plan, policy or practice of providing compensation for salary lost due to illness.

Any employee who has accrued and unused paid time off should be permitted to use such time to cover days that the office is closed in accordance with company policy. But, understand that certain CBA provisions may require paid leave for certain unionized workers in the event of office closure.

If during the workweek an employee is assigned to a variety of duties at different hourly rates due to staffing shortages arising from a COVID-19 outbreak – for example, a facilities management employee required to perform custodial work and building checks – his/her overtime pay rate is computed at 1½ times his/her effective hourly rate for that workweek. Exempt employees are not entitled exempt to overtime or any additional pay beyond their regular salary.

Labor Considerations (NLRA)

For employers with unionized workforces, many policy-related decisions are governed by the CBA. In many cases, an employer cannot unilaterally adopt and implement a Pandemic Plan without first notifying and giving the union an opportunity to negotiate its terms.

The NLRA requires an employer to bargain in good faith with the employees’ union representative concerning wages, hours and other terms and conditions of the employees’ employment, and a Pandemic Plan would necessarily impact these areas.  If the employer and union reach a true impasse in negotiations, the employer may be able to implement the terms of its last proposal to the union, provided that it does not conflict with the provisions of any applicable CBA.

If the employee refuses to perform a particular job assignment and/or report to work because he or she has a good faith belief that the working conditions are "abnormally dangerous", this action may be found to be protected concerted activity under the NLRB. However, lack of an immediate danger may render the employee's refusal to work unprotected. If the employee merely has a generalized concern about possible infection, and particularly if the employer has implemented an overall plan to help prevent the spread on the virus, the employee's refusal may be unprotected.