The spread of coronavirus impacts virtually all employers, but especially those with personnel who work in concentrated spaces, travel internationally or interact directly with the public in carrying out their job duties. Although the situation is rapidly evolving, employers can take proactive steps to mitigate the impact of coronavirus on their employees and businesses. Employers should recognize, however, that their approaches should be tailored to their businesses and workforces, and that certain preventative and remedial measures may come with attendant legal risks.

Preventative Measures

Communication

  • Communicate with your employees regarding material developments and updates on coronavirus from the government—including from the Centers for Disease Control and Prevention (CDC) and World Health Organization (WHO)—exercising care to not overcommunicate in a way that creates panic or paranoia.
  • Task someone within the business to follow and report on CDC, WHO and state and local government announcements.

Hygiene and Infection Avoidance

  • Educate employees regarding basic best practices and hygiene in the workplace (e.g., stay home if you are sick; advise human resources or company management if you have recently cared for or otherwise had significant exposure to someone who is sick; cough or sneeze into your arm; avoid touching your eyes, mouth and nose; wash your hands frequently and use hand sanitizer).
  • Promote good hygiene in the workplace. Provide antibacterial wipes and hand sanitizer to employees and place them in bathrooms and shared spaces. Also, ensure that your janitorial service is using best practices to disinfect surfaces during cleanings and consider increasing the frequency of cleanings.
  • Consider the working environment when crafting preventative steps and responses. For example, employers with open-floor working environments may receive requests from employees to work from home to avoid risk of contraction. Evaluate these requests and determine if they are reasonable and appropriate given the circumstances.
  • Implement alternative work arrangements (e.g., telecommuting), if applicable and deemed necessary to avoid the spread of the virus in the workplace.
  • Consider whether it is appropriate to cancel or reschedule large company or public events that you are hosting or sponsoring until further notice.

Travel

  • Establish formal guidelines or policies regarding travel.
  • Instruct employees to inform the business in advance regarding any planned overseas personal or business travel, including and especially to high-risk countries.
  • Require employees to disclose immediately if they (or someone with whom they live or to whom they have been exposed) have traveled to Level 2 or Level 3 countries (e.g., China), as designated by the CDC, in the last 14 days.
  • Advise employees traveling to Level 2 and Level 3 countries to take certain safety precautions, as recommended by the CDC. Given the circumstances, it may be reasonable to ban all work-related travel to these countries.

Response to Potential or Confirmed Cases of COVID-19

If an employer becomes aware of suspected or confirmed cases of COVID-19 among its workforce, it should take the following steps regarding those employees (in addition to the above preventative measures):

  • Protect their privacy, including their identity and medical status.
  • Require them to work from home for the COVID-19 incubation period (currently two weeks, according to the CDC). Also, consider requiring employees returning from countries with widespread infection (or who have recently cared for or otherwise had significant exposure to someone who is sick) to work from home for that period in an abundance of caution.
  • If warranted, require medical clearance from a doctor before employees return to work after an extended absence triggered by their illness (or their exposure to someone with a suspected or confirmed case of COVID-19). However, employers should exercise caution regarding medical clearance requirements given workplace disability discrimination laws.
  • Let employees know that they should consult with human resources regarding applicable medical and related leaves of absence.

Legal Risks

Employers should be thoughtful when rolling out coronavirus measures in the workplace since certain measures involve a higher degree of legal risk and may give rise to claims by employees, including invasion of privacy and disability discrimination. To help mitigate legal risk, the measures should be reasonable and undertaken solely to allow the employer to assess whether remedial action should be taken to protect its workforce. Also, employers should act consistently regarding requiring employees to work from home or taking other actions related to a suspected or confirmed case of COVID-19; not retaliate against employees who reasonably refuse to perform job duties because of concerns about contracting the virus (e.g., an employee refuses to attend a large conference because of fear of exposure) and consult with counsel regarding the laws that employers should follow in pandemics.

As government agencies continue to investigate and monitor the coronavirus outbreak, employers should identify and implement appropriate measures for their workplaces to ensure that their employees, and the community, are safe during this critical time.