With the arrival of 2019 novel coronavirus (“COVID-19”) to the United States, employers should begin thinking about strategies to mitigate business interruptions, ensure employee safety, and avoid unnecessary litigation.
Know Your Resources
Employers should continue to monitor reliable guidance provided by the U.S. Centers for Disease Control and Prevention (“CDC”) and local public health agencies. Understanding how COVID-19 is transmitted and what steps can be taken to protect diagnosed or exposed employees is essential to dispelling employee fears. Employers can educate employees on prevention and symptoms and should be prepared to answer employee concerns regarding workplace safety. The following are guides which may be helpful to employers:
- Up to date information on COVID-19 can be found here: Coronavirus Disease 2019 (COVID-19)
- The CDC’s interim guidance to employers can be found here: Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19), February 2020
- Information regarding employee travel can be found here: Traveler’s Health
- The CDC’s Interim Guidance for Risk Assessment Guide can be found here: Interim US Guidance for Risk Assessment and Public Health Management of Persons with Potential Coronavirus Disease 2019 (COVID-19) Exposure in Travel-associated or Community Settings
Keep Your Workforce Informed
Employers can and should provide their workforce notice regarding potential exposure. However, when doing so, less is more. Employers should not identify diagnosed individuals by name, or provide other identifying information, which could expose confidential employee health information. This is because under federal, state, and local laws, infectious diseases may constitute disabilities, and thereby confer protected status. Employers should nevertheless address in detail the steps taken to mitigate exposure to COVID-19, including environmental cleaning and other preventative measures, such as supplying antibacterial wipes for employees to use at workspaces and hand sanitizer for use throughout the employer’s facility.
Understand the Interplay with Employment Laws
Although the breadth of COVID-19’s impact remains to be seen, employers must be careful to avoid discrimination against employees who are disabled or perceived as disabled because they are exhibiting symptoms of COVID-19, or because they belong to races or nationalities linked to the virus. Employers should also be aware that COVID-19 might present other legal risks. For example: employees suffering from, or caring for a family member suffering from COVID-19, may be eligible for protections under the FMLA; employees who contracted COVID-19 through occupational exposure may have Workers’ Compensation claims; and employees raising collective concerns regarding working conditions or changes to operations as a result of the virus may be protected under the NLRA.
While much is still unknown regarding the scope of COVID-19’s impact on businesses and workforces throughout the US, employers should consider the following tips:
- Develop a written plan of action if someone become sick with COVID-19, which includes steps to ensure the confidentiality of any employee health information.
- Request employees limit non-essential travel to the affected regions, and provide notice in the event of such travel.
- Consider flexible work arrangements for pregnant or immunocompromised employees, or in the event of a worsening outbreak flexible work hours for employees that commute.
- Understand your workforce vulnerabilities, how staffing shortages could potentially interrupt your operations, and the implications (if any) on applicable collective bargaining agreements.
- Temper employee fears by circulating information from the CDC and other reliable sources.
- Never make determinations regarding employee risk based on race, or national origin.
- Combat potential discrimination by monitoring employee conduct and enforcing anti-bullying and anti-harassment policies.
Finally, and perhaps, most importantly, when an employee issues arises because of COVID-19, employers should consult legal counsel to mitigate risks and forestall potential litigation.