March 2, 2020Client Alert

Considerations for Responding to the Coronavirus

Late last week, the first cases of coronavirus reportedly unrelated to a cruise ship or a trip to China were reported in the United States. The Centers for Disease Control and Prevention (CDC) report that it is not a question of whether employees or contractors working in the U.S. will be affected by the virus, but when. To that end, employers face significant practical and legal issues in addressing these matters with their employees and with business relationships.

To address the coronavirus threat, employers should be creating (or perhaps dusting off from the H1N1 situation of a decade ago) an epidemic preparedness plan. We recommend this occur as soon as possible. Employers also should establish a process for tracking developments related to coronavirus, identifying the events that trigger plan implementation, and identify members of the employer’s response team (which should include members of human resources, safety, operations, finance, and communications). Below are key considerations that should be taken into account when crafting a coronavirus preparedness plan.

This alert addresses some of the Human Resources issues that the coronavirus epidemic presents employers. Other business considerations will be addressed in future Michael Best alerts.

Employment Considerations

From an employment perspective, the plan must balance the employer’s obligations to keep employees safe with the employer’s obligations to protect employee personal information from public disclosure. Factors that need to weigh into these decisions include:

1.  Occupational Safety and Health Administration (OSHA)

Under the General Duty Clause of OSHA, employers must “provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm.” Employers cannot afford to be passive with respect to the coronavirus. Employers should increase their cleaning efforts in shared work areas and provide antibacterial supplies/masks for employees. In addition, employers must create and implement leave plans that encourage sick employees to stay home from work until they are no longer contagious. Lastly, employers should provide employees with relevant, up-to-date information about the coronavirus and infection control practices by widespread email communications and displaying posters that remind workers about proper hand washing, respiratory hygiene, and cough etiquette. Employers considering utilization of respirators to handle the situation should consult with counsel before implementation to ensure OSHA requirements are met.

UPDATE (March 4, 2020): The American Bar Association (ABA) OSHA Law Conference, March 3 - 6, discussed new developments specifically regarding employees wearing masks at work. Click here for more details.

2.   Family Medical Leave Act (FMLA)

Under the FMLA, employers must provide leave for an employee to care for his/her own serious health condition or the serious health condition of a family member. Although the FMLA does not generally extend to a cold or flu, the coronavirus appears sufficiently serious to constitute a “serious health condition” if it involves either hospitalization or continuing treatment by a health care provider for incapacitation lasting at least three consecutive days. Continuing treatment involves either two in-person doctor visits or one in-person doctor visit followed by a treatment regimen, such as prescription medication. Where an employee’s situation qualifies as a “serious health condition,” employers covered by the FMLA must provide the qualifying employee with job protected leave (up to twelve weeks total). Although court jurisdictions differ, generally an employer may force an employee to use FMLA leave as long as the employee is on leave for a condition that constitutes an FMLA-qualifying condition.

In addition, employers who receive health information in support of FMLA are not required to protect this information under HIPAA, but are still expected to maintain confidentiality of the information. Thus, an employee’s direct supervisor is not permitted to learn of the condition through the FMLA process. Consequently, it is important to run these processes through Human Resources and ensure that knowledge of a diagnosis is contained to company representatives on a need to know basis.

3.   Americans with Disabilities Act (ADA)

If an employee contracts coronavirus, the ADA will likely be implicated because the ADA no longer imposes a temporal standard on the length of the disability. Further, the ADA protects individuals who are perceived as being disabled and who have a record of being disabled. Consequently, individuals who have contracted the coronavirus and individuals who have recovered from contracting the coronavirus have similar standing under the ADA. An employer can be liable for unlawful discrimination under the ADA if the employer makes impermissible disability-related inquiries or takes a tangible employment action because of an employee’s actual or perceived disability.

Similarly, the ADA also covers employees with respect to medical examinations. The mandating of a medical examination must be job-related and consistent with business necessity. Caution should be exercised when requiring an employee to see a doctor.

An employee with an underlying disability may experience complications as a result of coronavirus. Employers must be prepared to accommodate disabilities that are aggravated by coronavirus.

Finally, the same concerns regarding employee health privacy that apply in the FMLA context apply in the ADA context.

4.   Fair Labor Standards Act (FLSA)

Employers must be careful not to jeopardize an employee’s salary-exempt status by making impermissible deductions. For example, if an exempt employee is out for four days, and works the fifth day, that employee must be paid for the entire week unless the time away is FMLA-covered. FMLA time taken by an exempt employee need not be paid. Moreover, under the FLSA, employees do not need to be paid for weeks when they do not work for all five days of the work week. Employers might also want to review their telecommuting policies and allow sick employees to work from home. It is necessary to track the employee’s hours accurately no matter where the employee is working.

5.   Worker's Compensation

Employers might need to handle worker’s compensation claims relating to coronavirus. For example, if an employee is required to travel and contracts coronavirus in the scope of his or her employment, the employer may be liable under the relevant worker’s compensation act. Moreover, if a cluster of employees becomes infected with coronavirus after working in close contact with another employee who has coronavirus, a claimant might be able to show a causal link to the workplace. This possible source of claims further emphasizes the need for employers to take proactive steps to avoid the spread of the virus in the workplace.

6.   Title VII/State Discrimination Laws

First and foremost, whatever plan an employer implements to address coronavirus must be facially neutral and enforced non-discriminatorily. Employers must not make employment decisions based on a perception that an employee has a protected characteristic or status that increases the employee's likelihood of being infected with the coronavirus.

Similarly, there have been reports of mistreatment of individuals of Asian descent in certain areas based upon the reported origin of the virus. It remains important to ensure that employment discrimination is not occurring based upon an individual’s ethnicity or race.

7.   National Labor Relations Act (NLRA)

The NLRA protects the right of employees to engage in protected concerted activities. Employers also should be cognizant of the NLRA in making decisions that impact their employees’ wages, hours, or working conditions. In a unionized workplace, employers might be required to negotiate elements of their coronavirus strategy. In light of the spread of coronavirus, employers could face employees taking collective action with respect to their work hours, leave, time off policies, and other similar issues. These actions might constitute protected concerted activities and, as a result, employers must be careful not to retaliate, discriminate against, or otherwise take action in violation of the NLRA with respect to employees engaged in these activities.

8.   State and Municipal Paid Leave Laws

Several states and municipal areas have implemented paid leave laws since the H1N1 outbreak. It is important to note that these laws likely have application to the coronavirus. Just as significant, however, is the situation that an employer may not always have the right to force substitution of these paid leave rights. Although these rights differ, an employer should make sure to weigh its rights and obligations when requiring an individual who has become contagious to stay home from work.

9.   International, Federal, State, and Local Directives

Employers must comply with all federal (including another country’s laws for an expatriated employee), state, and local directives regarding closings, quarantines, and isolation. It also is important for employers to keep up to date with CDC travel recommendations.

Practical Considerations

Practical considerations for employers include, but are not limited to:

  • Employers should consult the CDC's guidance.
  • Employers should communicate with their employees regarding the prevention of the spread of coronavirus.
  • Employers should plan how to handle business travel and recreational travel to an area where coronavirus has been reported. Employers should further consider whether to restrict from coming to the workplace an asymptomatic individual who has travelled to an affected area during the incubation period (currently estimated to be 14 days).
    • Employers should ask employees about their recent travel and should request information regarding travel history during the incubation period.
  • Employers should hold employees who have (or who live with someone who has) coronavirus out of the workplace. While it is not required that a non-exempt employee be paid for this time, an employer should consider whether to do so anyway.
  • Employers who find an employee who has been exposed and/or who has exposed coronavirus to its workforce should consider if/whether crisis communications should be planned.
    • This would include responding to media requests about a quarantined employee complaining about treatment by the employer

This is a dynamic situation and employers should be prepared to adapt to changing circumstances, including updating their coronavirus preparedness plan and addressing the myriad legal and other considerations related to coronavirus. For assistance with these issues and help answering any questions that arise, please contact one of the authors or another Michael Best attorney.

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