Key Takeaways:

  • As the coronavirus continues to spread, employers are strongly urged to exercise measured but deliberate actions to protect against the virus in the workplace

  • Employers should exercise prudence and vigilance to avoid financial consequences, business disruption, hostile or offensive work environments, or the filing of discrimination lawsuits

  • This article contains step-by-step guidance for employers to maximize chances at protecting against the spread of the virus to as many employees and other persons as possible

The coronavirus (also known as COVID-19) is making headlines around the world and is adversely impacting the stock market. As of March 1, 2020, media outlets report that more than 88,000 people have been infected globally, with more than 3,000 deaths. In the United States, there are 87 confirmed reported cases, with two deaths in Washington state. More cases are being confirmed throughout the country with each passing day. There is no question that businesses, large, small, and everything in-between are feeling the effects of the coronavirus outbreak. One question many clients ask—how should employers address this growing concern?

At the onset, all employers must exercise prudence and vigilance, while avoiding panic and poor decision-making in addressing these concerns. Decisions made in haste can lead to financial consequences and business disruption. These could include creating awkward situations between customers and employees, promoting hostile or offensive work environments, or the filing of discrimination lawsuits by employees or third parties against the employer.

Instead, employers should do the following:

  1. Re-review their illness and absence policies to ensure they are in compliance with all applicable local, state, and federal laws, including Occupational Safety Health Act (OSHA), Family Medical Leave Act (FMLA), Americans with Disabilities Act (ADA), and equivalent local ordinances and state law
  2. Emphasize leaves of absence and working remote options when sick as allowed per company policy
  3. Provide proper safety equipment, including hygiene products and other safety equipment to protect against exposure from the virus
  4. Circulate information to management and employees providing education on sound hygiene practices, respiratory etiquette, and prevention measures
  5. Develop emergency action plans to ensure they include following infection disease protocols from governmental agencies such as the CDC, state, and county health officials
  6. Perform routine environmental cleaning as appropriate
  7. Limit all non-essential travel to affected regions, as necessary, and provide guidance for employees who are traveling to mitigate risk of contracting the virus
  8. Consider any other policies or procedures to protect and prevent employees, customers and vendors from exposure in compliance with applicable law and regulations

As noted above, employers should avoid enacting policies or acting in a manner that discriminates against employees and third persons under federal, state, and local laws, including without limitation, Title VII of the Civil Rights Act of 1964, ADA, and FMLA. We suggest paying particular attention to race or national-origin based harassment, discrimination or disparate treatment complaints, including those from affected countries. Any such policies should be enforced in a uniform and consistent method, including reasonably accommodating employees unless it creates an undue hardship on the employer.

Under the ADA, employers typically cannot make disability-related inquiries or require medical examinations unless the employer has a reasonable belief based on objective evidence that either:

  1. The employee’s ability to perform essential job functions will be impaired by the medical condition
  2. The employee poses a “direct threat” due to the medical condition, as defined by regulations promulgated by the U.S. Equal Employment Opportunity Commission

Finally, under FMLA and state equivalent laws, employees infected by the virus or flu or employees with a spouse, child, or parent infected by the virus or flu are entitled to FMLA leave. Employers should ask employees for appropriate doctor’s notes, and can ask for FMLA notices and certifications to be completed accordingly.

As the coronavirus continues to impact our lives more every day, employers are strongly urged to exercise measured but deliberate actions by contacting health authorities and legal counsel as to how to take affirmative steps towards maximizing its chances at protecting against the spread of the virus for as many employees and other persons as possible. Our experienced employment attorneys are readily available to assist employers and businesses with this emerging concern.