The coronavirus, which causes the disease known as COVID-19, has taken the world by storm. Unfortunately, it could take a significant toll on businesses and employers who are ill-equipped to deal with an outbreak. The following guidance, some of which was recently promulgated by the Centers for Disease Control, has been prepared for businesses and employers to help properly plan, prepare, and respond to an outbreak which may impact your workplace. OSHA also recently published its Guidance on Preparing Workplaces for COVID-19. The following recommendations and suggestions are applicable to any type of infectious disease outbreak which has the potential of disrupting business.
Encourage Employees to Stay Home and/or Work From Home if Symptoms Arise
Encourage your employees to self-monitor for any symptoms of coronavirus. Employers should strongly advise if not require employees who have symptoms of acute respiratory illness (e.g., coughing, sneezing, shortness of breath, temperature above 100.4 F) to stay home. Employees who appear to have symptoms upon arrival to work or who become sick during the workday should be sent home immediately. Employees should be advised to not return to work until they are free of symptoms for at least 24 hours without the use of fever-reducing or other symptom-altering medicine. Considering placing employees who pose a health or safety threat to the workplace on leave.
Explore allowing employees to work from home and ensure you have clear guidelines and procedures in place for doing so. If you do not already have in place a working from home/telecommuting policy, consider implementing one. Another option to consider is allowing flexible work hours (e.g., staggered shifts) to reduce the amount of close physical contact among and between employees if necessary.
Review Sick/Leave Policies and Prepare to be Flexible
Employers should reiterate their policies regarding notification of ones supervisor of any lost time due to illness. Employers may also want to ensure their sick leave policies are flexible and consistent with public health guidance, and they are encouraged to develop or implement non-punitive leave policies in response to a COVID-19 outbreak. Sick leave policies should permit employees to stay home and care for a sick family member. Also consider that healthcare providers and medical facilities may be extremely busy during an outbreak and may not be able to provide necessary documentation such as a work slip or return to work note in a timely fashion.
Be sure to review and remind employees of any applicable leave policies. Assuming that the Family and Medical Leave Act (FMLA) applies to the employer, coronavirus would likely qualify as a serious health condition which would allow an employee to take FMLA leave if the disease is contracted by the employee or if the employee needs to care for an infected member of his or her family. Review your employer benefit plan to confirm whether short- or long-term disability benefits are payable to employees on leave given the circumstances.
At this time, it is not certain whether COVID-19 will be considered a disability under either the Americans with Disabilities Act (ADA) or a states Human Rights Act. That said, employers may elect to treat any confirmed case of COVID-19 as a disability and engage in the interactive accommodation process. Employees who have contracted the coronavirus must be treated the same as non-infected employees, so long as the infected employee can perform their essential job functions with or without reasonable accommodation. Keep in mind that a reasonable accommodation may include providing an infected employee (or an employee with an infected family member) with an extended unpaid leave if medically required, or with the ability or authority to work remotely.
Consider Developing an Infectious Disease Policy
Employers are encouraged to revise and/or develop a specific infectious disease policy to deal with circumstances such as a coronavirus outbreak. While every workplace functions differently, the following general topics should be taken into consideration:
- Communication: How and when will employer-employee communication take place in the event COVID-19 invades the workplace (via email, mass text, phone calls, etc.)?
- Reporting: To whom is an infected employee encouraged to report and how?
- Working from Home: What are the expectations and requirements of an employee working from home?
- Return to Work: When and how? Are medical certifications required and if so, who bears the cost?
- Business and/or Personal Travel: Reporting any travel when and to whom? Are employees obligated to travel for business? Is business travel to an affected area limited or prohibited?
- Workplace Visitors: Is a visitors log and/or pre-screening questionnaire required?
As with any workplace policy, its terms should be implemented in a consistent and non-discriminatory manner. Employees should also be reminded that they will not be subject to retaliation for reporting and/or engaging in any investigation surrounding a possible or confirmed case of COVID-19 in the workplace. Confidentiality provisions associated with any reporting should also be highlighted.
Plan and Prepare for Increased Absences
Employers should do what they can to prepare for possible increased number of employee absences. Plan to monitor and respond to absenteeism in the workplace, and have a working plan or guidelines in place that allows the continuation of essential business functions to the fullest extent possible. Consider cross-training personnel to perform essential functions that keep the business operating smoothly even if/when key staff members are absent. Businesses with multiple locations are encouraged to provide local managers with the authority to take appropriate actions outlined in their plan or policies.
Nearly all businesses should anticipate dealing with employee fear, anxiety, rumors, and misinformation, and they should plan to distribute effective communications accordingly. While employers are not legally required to report a suspected case of COVID-19 to their local public health unit, employers are strongly encouraged to work with local and state health officials as necessary.
To the fullest extent possible, confidentiality should be maintained among any employees infected or impacted by the coronavirus. In the present circumstances, it is reasonable for employers to request that its employees advise them if: they are experiencing symptoms; have been diagnosed with COVID-19; have been in close contact with someone diagnosed with the disease; or recently traveled to an affected area.
Any medical information provided by employees should be kept in a separate and secure location and should not be broadly disclosed to others. While it may be necessary to advise other employees of a confirmed case of COVID-19 in the workplace, any disclosure should avoid identifying information and should be limited to the extent necessary to protect workplace health and safety.
As with any employment issue, stigma and discrimination in the workplace should be left out of the decision-making process. Do not make determinations of risk based solely on an employees race or country of origin, for example.
Keep the Workplace Clean
While this should come as no surprise, employers are encouraged to routinely clean all frequently touched surfaces in the workplace, including but not limited to workstations, countertops, doorknobs, telephones, keyboards, remotes, etc. Disposable wipes should be provided so that surfaces can be wiped down by employees after each use. Hand sanitizer and tissues should also be readily available to employees.
Tailor Your Approach to Fit Business Needs
There is no one-size-fits-all approach to handling an outbreak in the workplace. Employers and businesses are encouraged to consider their individual needs and requirements when planning and preparing for the spread of disease. Taking a proactive preventative approach and having established policies and guidelines in place will help minimize disruptions in the workplace in the event the coronavirus infects your business.
The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years, and are available to discuss these and other issues. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.