As concern about the novel 2019 coronavirus disease (COVID-19) grows, employers should be proactive in taking the necessary precautions to prevent the spread of the virus within the workplace, protect employees, and minimize potential liability under applicable employment laws.
The outbreak of an infectious disease, like the coronavirus, has the potential for significant implications for employers under various federal, state and local laws. For example, the U.S. Occupational Safety and Health Act imposes a legal obligation on all employers to maintain a safe workplace. The Occupational Safety and Health Administration (“OSHA”) oversees and enforces the Act by issuing regulations and holding employers responsible for violations. If OSHA determines that employees at a worksite are reasonably likely to be exposed to an infectious disease or virus, it requires the employer to develop a plan with necessary procedures to protect its employees.
In light of the recent coronavirus outbreak, all employers should have appropriate plans, policies and procedures in place and ensure that all infectious disease protocols comply with applicable federal, state and local laws.
Recommendations
Establish an Emergency Response Plan. Employers should have a plan in place to prepare for the risk of an employee coming into contact with the coronavirus. A detailed plan can assist employers and managers in complying with legal obligations by demonstrating the steps the company has taken to protect the workplace from an outbreak, as well as the steps that will be followed if there is an outbreak in order to reduce its impact. An Emergency Response Plan should include, at a minimum, information such as:
- guidance as to when an ill employee must stay home;
- whether the employer will pay employees for time spent in mandatory quarantine and/or on sick leave;
- when, how and to whom employees should report any suspected illness or exposure to illness;
- how staff will be notified in the event of an office closure;
- any travel or other limitations, such as schedule changes, that will be imposed; and
- additional business contingency plans, such as telecommuting policies.
Alternatively, employers should review their current Emergency Response and/or Business Continuity plans to ensure such plans appropriately cover infectious diseases.
Review the Company’s policies and procedures. Employers should ensure their policies regarding sick leave, dependent care leave, telecommuting and business travel are flexible and comply with legal obligations and current public health guidance to account for a potential outbreak of the coronavirus. In making decisions, employers should consider the facts and circumstances of each situation and make decisions that protect the workplace, but also account for employees’ rights by being sensitive to employee concerns and accommodating them to a reasonable extent.
Consider suspending non-essential international business travel. Employers should stay informed about the current and ongoing risks of traveling to any countries and regions where employees may have to travel by monitoring Centers for Disease Control (“CDC”), World Health Organization (“WHO”), and State Department travel advisories and alerts. Employers should also consider suspending or restricting employees from traveling to high risk destinations unless absolutely necessary. Additionally, if an employee refuses to travel during an infectious disease outbreak because of safety concerns, employers should not mandate it or discipline them as a result. Doing so could implicate OSHA’s anti-retaliation protections and create potential liability. Instead, employers should be responsive to any safety and health travel-related concerns an employee raises, and provide accommodations when feasible. If employers do not already have a written travel policy, they should consider implementing such a policy.
Communicate with employees. Employers should advise employees about how to protect themselves and prevent the potential spread of infectious diseases within the workplace by providing accurate information that is consistent with current guidelines offered by the CDC, WHO and other government agencies. It is important for employers to anticipate employee fear, anxiety, rumors and misinformation, and plan accordingly by:
- communicating the company’s policies, procedures and Emergency Response plans to employees;
- encouraging sick workers to stay home and away from the workplace;
- reminding employees to whom they should report if they have been to a high risk destination or are exhibiting signs and symptoms of illness; and
- educating employees on proper hygiene etiquette.
Take additional preventative health and safety measures. Employers should consider taking measures to better protect the workplace from an outbreak, such as providing hand sanitizer and hand washing stations in the workplace, cleaning and disinfecting objects and surfaces more frequently and minimizing unnecessary meetings and visitors.
