UPDATE: The Occupational Safety and Health Administration (OSHA) has issued Guidance on Preparing Workplaces for COVID-19, which provides planning guidance intended to assist employers in providing a safe and healthful workplace.

As the number of confirmed 2019 novel coronavirus (COVID-19) cases continues to rise across the country and around the world, employers are looking for guidance regarding how they should react to the potential for spread of the virus. Several government agencies have responded to this demand. The following information is designed to address many of the common questions employers currently face. Our labor & employment attorneys are closely monitoring the government’s response to this developing situation and will update with further guidance as it unfolds.

The Centers for Disease Control and Prevention (CDC) has published and continues to update Interim Guidance for Businesses and Employers to Plan and Respond to 2019 Novel Coronavirus. The CDC encourages employers to:

  1. Actively encourage sick employees who have symptoms of respiratory illness to stay home until they are free of fever (100.4 F), signs of fever, or other symptoms for 24 hours. Note that the CDC encourages employers (contrary to employers’ rights under the FMLA) not to require a health provider’s note for return to work because of concern that such providers’ offices may be overwhelmed.
  2. Separate employees who arrive at work and appear to have acute respiratory illness and send them home.
  3. Emphasize staying at home, “cough and sneeze etiquette,” and hand hygiene by posting provided CDC posters.
  4. Perform routine environmental cleaning.

The CDC has provided separate bulletins regarding travel – CDC’s Travel Health Notices and Conducting a Risk Assessment with suggested measure by risk category.

The CDC is currently urging the avoidance of non-essential travel to South Korea, China, Italy and Iran, and is recommending the use of enhanced protections when traveling to Japan.

The risk assessment information identifies circumstances that would place individuals as high, medium, or low risk and describes what steps should be taken with respect to individuals in each risk category.

Finally the CDC urges businesses to plan for a possible COVID-19 outbreak in the U.S. and recommends the following:

  • Review HR policies
  • Consider telecommuting.
  • Identify essential business functions and supply chain concerns.
  • Establish a process to communicate information to employees and business partners.

What Employment Laws Could Impact Employers’ Responses to COVID-19?

Certainly eligible employees who contract COVID-19 would be entitled to take FMLA leave, assuming they see a physician or other DOL designated caregiver on at least two occasions within 30 days of initially becoming ill (or seeing a physician on one occasion and taking prescription medication thereafter).

The EEOC has posted its “Pandemic Preparedness” guidance to assist employers in maintaining compliance with the ADA while addressing COVID-19.

The ADA is relevant to pandemic preparation in three primary ways:

  1. Regulates employers’ disability-related inquiries and medical examinations for all applicants and employees.
    1. During employment, employee disability-related inquiries or medical examinations are prohibited unless they are job-related and consistent with business necessity, which generally means that an employer has a reasonable belief, based on objective evidence, that:
      1. An employee’s ability to perform essential job functions will be impaired by a medical condition, or
      2. An employee will pose a direct threat due to a medical condition.
  2. Prohibits covered employers from excluding individuals with disabilities from the workplace for health or safety reasons unless they pose a “direct threat” (i.e. a significant risk of substantial harm even with reasonable accommodation).
    1. Whether COVID-19 is a “direct threat” depends on the severity of the illness as reported by the CDC or local health authorities.
  3. Requires reasonable accommodations for individuals with disabilities (absent undue hardship) during a pandemic.

The EEOC guidance includes a sample “Pre-Pandemic Employee Survey” that may be helpful in preparing your workplace for a pandemic.

Below are general guidelines on pandemic response under the ADA, discussed in more detail in the EEOC’s guidance:

  1. During a pandemic, an employer CAN:
    1. Require medical certification releasing the employee to work after medical absences.
    2. Require certain infection-control practices (i.e., handwashing, no internal meetings, etc.) and/or the wearing of personal protective equipment (PPE) at work (i.e., gloves, face masks, etc.).
    3. Ask employees who call in sick whether they have relevant pandemic illness symptoms (must be kept strictly confidential by employer).
    4. Send employees home if they present with pandemic illness symptoms.
    5. Inquire into employee’s personal travel locations.
  2. An employer CANNOT:
    1. Require employees to get a vaccine.
    2. Ask employees who do not have pandemic illness symptoms to disclose whether they have a medical condition that the CDC says could make them especially vulnerable to pandemic illness complications (unless the CDC has reported that the illness is significantly more severe than comparable seasonal flu).

OSHA has not issued new regulations but has provided detailed information regarding how already existing standards may impact an employer’s obligations with respect to COVID-19 including the General Duty Clause and Personal Protective Equipment (PPE). OSHA has also posted specific guidance for employers involved in:

  • Healthcare
  • Deathcare
  • Laboratories
  • Airline operations
  • Border protection
  • Solid waste and wastewater management
  • Business travel abroad

OSHA’S Medical Information page has also provided information regarding such topics as:

  • How is the COVID-19 different from other coronaviruses?
  • What are the signs and symptoms of COVID-19 infection?
  • How is COVID-19 diagnosed?
  • How is COVID-19 treated?