As cases of COVID-19 have started to spread throughout the United States, we have received a number of calls from clients about the potential impact on the workplace. Our team is paying close attention to the guidance from relevant government entities, to experience shared by colleagues in Asia and other areas that have already been impacted, and to media reports as we think critically about how to best protect our clients against the commercial and legal risks posed by this public health crisis.
Health and Safety
- Pay attention to updates from the Centers for Disease Control and Prevention.
- Actively encourage sick employees to stay home. Sick employees should remain home until they have been fever-free for more than 24 hours, without the use of fever-reducing medicines.
- Separate sick employees. Employees who develop symptoms at work should be separated from other employees and sent home immediately.
- Emphasize hygiene.
- Instruct employees to wash their hands often with soap and water for at least 20 seconds or with hand sanitizers containing at least 60-95% alcohol.
- Provide tissues and no-touch disposal receptacles.
- Place hand sanitizer in multiple locations in the office.
- Clean common environments.
- Routinely clean all frequently touched surfaces with your usual cleaning agents.
- Provide disposable wipes for employees to use on commonly used surfaces (doorknobs, keyboards, copiers, coffee machines, desks, etc.).
- Consider suspending non-essential business travel. Besides the risk of infection, employers and employees must also consider the risk of involuntary quarantine as a result of exposure during travel.
- Identify contact information for CDC and state and local Department of Health officials in order to promptly alert them to potential exposures.
- Identify a pandemic coordinator or team to manage human resources, technology, or commercial issues and serve as a unitary point of contact.
- Cross-train employees in anticipation of increased absences.
- Test remote access capabilities to confirm that IT infrastructure can handle a significant increase in remote operations. For example, yesterday JPMorgan Chase asked 10% of its staff to work from home for a day to test their remote access capabilities.
- Identify contact information for key vendors and utilities, such as power, internet, phone, mail services, copy services, etc.
Employment Law Issues
- PTO and Leave Policies:
- Consider modifying your PTO or leave policy to provide incentive for sick employees to stay home. Employers should consider providing additional PTO time or permitting employees to use PTO in advance.
- Temporarily waive any requirement for a provider’s note for an employee to use PTO or sick leave. The CDC recommends this step in order to prevent overcrowding of medical facilities and to minimize exposure in waiting rooms.
- Coronavirus would likely qualify as a “serious health condition” under the FMLA. Therefore, an employee would be entitled to unpaid FMLA leave if either they or an immediately family member contract the disease.
- Employees who refuse to come to work out of fear of contracting coronavirus would not typically qualify for FMLA leave.
- In 2009, the EEOC published guidance regarding Pandemic Preparedness in the Workplace and the Americans with Disabilities Act.
- During a global health crisis, as recently declared by the World Health Organization, the restrictions imposed by the ADA are relaxed in important ways.
- Employers may send employees home if they display flu-like symptoms.
- Employers may make “disability-related inquiries” of employees who are experiencing flu-like symptoms. However, employers must maintain the confidentiality of this information.
- Employers may take employees’ temperatures to determine whether they have a fever.
- Employers may ask whether employees are returning from travel to specific locations if the CDC or state or local public health officials recommend that travelers to such locations remain at home for a certain time until it is clear they do not have symptoms.
- Employers may provide remote work as a reasonable accommodation for employees who are still able to perform the essential functions of their position despite illness.
- Wage and Hour Considerations:
- Non-exempt employees need not be paid for sick leave. However, as mentioned above, employers should consider extending paid leave to employees in order to incentivize self-quarantine.
- Exempt employees must be paid for time out unless they miss an entire week of work.