The patchwork of federal, state and local laws addressing leaves of absence, protections of people with disabilities and a manufacturer’s general obligation to provide a safe workplace come head-to-head with public reports of an evolving situation. Right now, the CDC admits that “[m]uch is unknown about how the virus that causes COVID-19 spreads.” Manufacturers should be prepared to respond before an identified local outbreak.
As manufacturers face the complex issues presented by coronavirus, courts, legislatures and policy makers will address the legal challenges in greater detail. Today, a manufacturer’s legal response will depend on (i) the location of the manufacturer’s facilities, (ii) the manufacturer’s current policies and practices, (iii) local and state legal obligations, (iv) the location of the customer or event, and (iv) the practical make-up of the specific manufacturer’s business.
The CDC has published Interim Guidance for Businesses, which can be found here. Among other things, the CDC cautions that manufacturers should make sure that employment decisions are based on factors unrelated to the employee’s country of origin, race or ancestry, or other discriminatory criteria; encourage employees who are ill or may have been exposed to the coronavirus to work from home (if possible) or take leave; cancel business travel to areas of high infection or risk; and adopt cleaning and hygiene policies which can help stop the spread of disease generally.
It may also be wise for manufacturers to anticipate issues that may arise, train local managers and supervisors on appropriate responses and obtain prompt legal advice from skilled practitioners. A list of issues that manufacturers may want to consider are set out below.
- Does the manufacturer require an employee to report any trip outside the United States, to a level 2 or 3 infected area, or to an area which may have exposed the employee to a person who traveled outside the United States or to an infected area?
- Does the manufacturer require employees traveling to a level 2 or 3 infected area to stay home from work on either paid or unpaid leave? If paid leave is available, what rates apply and does the exempt or non-exempt status of the employee matter?
- Will the manufacturer require an employee returning to work after being ill or in self-quarantine to provide a “fitness for duty” examination or medical clearance?
- Will the manufacturer permit employees who fear workplace exposure from others to work from home or take leave?
- If a manufacturer refuses to allow an employee to work, must the manufacturer pay the employee for the time or can it allow the use of paid sick, vacation or personal leave?
- Does the manufacturer have a contingency staffing plan in the event of a local outbreak and are protections in place to make sure contingency labor has been trained?
- Have any union bargaining representatives been consulted about the manufacturer’s contingency planning?
Manufacturers should keep in mind that not only do state and local leave laws differ by jurisdiction, but the severity of the coronavirus situation may vary greatly as well. Local managers should be trained on the company’s policies and be given flexibility to quickly respond to local developments.