Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
The novel coronavirus (COVID-19) has implications for multiple workplace concerns, including health and safety, leaves of absence, discrimination, and travel. Although the U.S. Centers for Disease Control (CDC) has been publishing a steady stream of updated information and guidance, it is not always clear how to translate that information into compliant and appropriate practice in specific workplaces and particular situations.
Employers can do three things:
- Keep informed of the facts and recommended practices as advised by the CDC, World Health Organization (WHO), applicable country or state-specific public health sites, and occupational health consultants;
- Understand the potential legal issues that may arise and the guiding legal principles, and seek legal advice as needed; and
- Consider business risk and make prudent business decisions within the context of available information and legal obligations.
This article provides an update on what U.S. employers can do to manage their U.S.-based workforces in light of current government-provided guidance, and where they can find more information.
Staying Informed – CDC Guidance
The CDC has released guidance (the “Interim Guidance”) intended to help prevent workplace exposure to acute respiratory illnesses, including COVID-19, in non-healthcare settings.
The CDC has indicated that it is basing its recommendations for businesses upon information known at this time. Because much is unknown and the situation is ever-changing, the CDC has provided its website for tracking additional updates on developments.
The WHO is also providing information, including international updates.
Employers’ Affirmative Legal Duty of Care to Employees in the United States
An employer’s duty of care in the United States is constrained by the general duty of care established by the Occupational Safety and Health (OSH) Act, which requires employers to provide a safe and healthy workplace for all employees. Under this general duty of care, employers must ensure that workplace conditions meet or exceed the applicable safety and health regulations in the state where they are located.
Although the Occupational Safety and Health Administration (OSHA)’s jurisdiction does not extend beyond the United States, employers are still expected to assess hazards that arise from work-related travel abroad, and implement means for eliminating potential hazards. A civil court may consider OSHA standards, interpretations, and guidance in determining whether the employer followed a general duty of care and was not negligent in its protection of employees.
OSHA Legal Standards
OSHA’s website highlights existing OSHA standards and directives (which are instructions for compliance officers) and other related information that may apply to worker exposure to COVID-19.
Some OSHA requirements may apply to preventing occupational exposure to COVID-19. Among the most relevant are:
- OSHA's Personal Protective Equipment (PPE) standards, which require using gloves, eye and face protection, and respiratory protection. When respirators are necessary to protect workers, employers must implement a comprehensive respiratory protection program in accordance with the Respiratory Protection standard, which includes training employees on the proper use and care of respiratory protection equipment.
- The General Duty Clause, Section 5(a)(1) of the OSH Act of 1970, 29 USC 654(a)(1), which requires employers to furnish to each worker “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.”
OSHA-approved State Plans may have different or more stringent requirements.
The California Division of Occupational Safety and Health (Cal/OSHA) Aerosol Transmissible Diseases (ATD) standard is aimed at preventing worker illness from infectious diseases that can be transmitted by inhaling air that contains viruses (including COVID-19), bacteria or other disease-causing organisms. While the Cal/OSHA ATD standard is only mandatory for certain healthcare employers in California, it may provide useful guidance for protecting other workers exposed to COVID-19.
As employers strive to comply with the CDC guidelines on cleaning the workplace to prevent transmission, it is important to remember that those tasked with the cleaning, and others in the environment, may face hazards from the cleaning materials themselves, which can contain hazardous chemicals. Where workers are exposed to hazardous chemicals, employers must comply with OSHA's Hazard Communication standard, PPE standards, and other applicable OSHA chemical standards. OSHA provides information about hazardous chemicals used in hospitals in the Housekeeping section of its Hospital eTool.
Employers should be careful in handling safety and health concerns as the OSH Act prohibits employers from retaliating against workers for raising concerns. Additionally, OSHA's Whistleblower Protection Program enforces the provisions of more than 20 industry-specific federal laws protecting employees from retaliation for raising or reporting concerns about hazards or violations of various airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health insurance reform, motor vehicle safety, nuclear, pipeline, public transportation agency, railroad, maritime, securities, and tax laws. OSHA provides guidelines on how to avoid retaliation claims: Recommended Practices for Anti-Retaliation Programs (OSHA 3905 - 2017).
Potential Discrimination Issues
Potential discrimination issues can arise if COVID-19-related restrictions target individuals based on fear, not fact. For example, there should not be additional quarantine requirements imposed on people simply because they are Chinese. This could result in a claim of national origin discrimination. See EEOC Enforcement Guidance on National Origin Discrimination (Nov. 2016). Employer actions should be based on legitimate, non-discriminatory business reasons—objective standards and sources of information that can reasonably be relied upon such as the CDC, or an occupational health provider. If your company is developing an incubation period leave policy, that policy should be based on neutral, objective information and consistent with data received from the CDC, WHO or other source. Contact your employment attorney if you have any questions about how to develop a neutral policy.
Leave and Sick Pay Issues
If an employee is quarantined due to their own travel or exposure or to care for a family member for similar reasons, employers need to work through whether Family and Medical Leave Act (FMLA) or other leave laws apply to an employee’s absence. If the employee has exhibited symptoms and is required to be away from work per the advice of a healthcare provider or is needed to care for a family member, leave laws may apply to the absence. In contrast, if it is the employer’s implemented health and safety precautions that require the employee to be away from work, an employer should proceed with caution before designating any time away from work as leave under a specific leave law. Similarly, while multiple mandatory paid sick and safe time laws provide for paid time off benefits for situations involving illness and public health emergencies, many of these laws do not allow an employer to mandate the use such benefits. For example, the Washington State Department of Labor & Industries takes the position that an employee can never be required to use paid sick and safe time under Washington law; rather, the employee must be allowed to choose whether to use this benefit while absent from work. Further, employers should implement consistent protocols related to an employee’s reentry to the workplace in terms of obtaining a release clearing the employee to return to work and ensuring that the employee does not pose a risk to the health and safety of themselves or others.
Furloughs and Layoffs
Generally, short-term layoffs or furloughs are permitted as long as selections are not based on protected categories such as race, gender, national origin, etc. Care should be taken to avoid undermining the weekly salary of exempt employees, who generally should continue to receive their full salary for each workweek in which they perform any work (including work at home such as checking emails). Hourly workers do not have to be paid for time not worked. A short-term layoff or furlough of less than six months should not implicate notice obligations under the Federal Worker Adjustment and Retraining Notification (WARN) Act, but may require advance notice under some state WARN statutes such as the California WARN Act. (California WARN was recently interpreted as having been triggered by certain short-term furloughs.) Employees may have rights to compensation under state law or employee benefit programs such as short-term disability.
Recommended Practices in the Workplace
Actively Encourage Sick Employees to Stay Home
The standard advice from public health agencies is to “encourage” sick employees to stay home. Sick employees may not feel that they can afford to stay home or that there will be adverse consequences for having a poor attendance record. To this end, employers should ensure their sick leave and attendance policies are flexible and consistent with public health guidance, modify them if appropriate, and communicate these policies and modifications to employees.
Employers may still require compliance with time and attendance policies requiring healthcare provider notes for absences if an employee is calling in sick, subject to applicable law. Employers may also require a fitness-for-duty release in certain circumstances, when an employee has been absent due to illness or as a result of any incubation leave. Whether an employer may require a fitness-for-duty release depends on the particular facts of the situation and should be assessed on a case-by-case basis. As the CDC points out, healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely way. If you have an employee who refuses to follow your incubation leave policy or have questions regarding return-to-work documentation, please contact an employment attorney to discuss.
Separate Sick Employees
The CDC Interim Guidance recommends that employees who appear to have acute respiratory illness symptoms (e.g., cough, shortness of breath) upon arrival to work or develop such symptoms during the day should be asked to go home and if the employee is unable to work from home, an employee should be permitted to use their available sick time or PTO in accordance with the employer’s sick time and leave policies. If additional questions arise, contact an employment attorney to assist with specific issues.
Emphasize Respiratory Etiquette and Hand Hygiene by All Employees
Place posters that encourage staying home when sick, cough and sneeze etiquette, and hand hygiene at the entrance to your workplace and in other workplace areas where they are likely to be seen. Visit the coughing and sneezing etiquette and clean hands webpage for more information.
Advise Employees Traveling to Take Certain Steps Before Traveling
Employees should check the CDC’s Traveler’s Health Notices for the latest guidance and recommendations for each country to which they will travel. Specific travel information for travelers going to and returning from various affected locations, and information for aircrew, can be found on the CDC website.
The Interim Guidance provides that employees who are well but who have a sick family member at home with COVID-19 should notify their supervisor and refer to CDC guidance for how to conduct a risk assessment of their potential exposure.
If an employee is confirmed to have COVID-19 infection, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the Americans with Disabilities Act (ADA). Employees exposed to a co-worker with confirmed COVID-19 should refer to CDC guidance for how to conduct a risk assessment of their potential exposure.
Consider whether materials coming from an area of an outbreak need to be quarantined to avoid surface transmission to employees.
Important Considerations for Creating an Infectious Disease Outbreak Response Plan
All employers should be ready to implement strategies to protect their workforce from COVID-19 while ensuring continuity of operations. Steps for doing so include:
- Identify possible work-related exposure and health risks to your employees. OSHA has more information on how to protect workers from potential exposure to COVID-19.
- Review human resources policies to make sure that policies and practices are consistent with public health recommendations and are consistent with existing state and federal workplace laws (for more information on employer responsibilities, visit the Department of Labor’s and the Equal Employment Opportunity Commission’s websites).
- Explore whether you can establish policies and practices, such as flexible worksites (e.g., telecommuting) and flexible work hours (e.g., staggered shifts), to increase the physical distance between employees and between employees and others if state and local health authorities recommend the use of social distancing strategies. For employees who are able to telework, supervisors should encourage employees to telework instead of coming into the workplace until symptoms are completely resolved. Ensure that you have the information technology and infrastructure needed to support multiple employees who may be able to work from home.
- Identify essential business functions, essential jobs or roles, and critical elements within your supply chains (e.g., raw materials, suppliers, subcontractor services/products, and logistics) required to maintain business operations. Plan for how your business will operate if there is increasing absenteeism or these supply chains are interrupted.
- Set up authorities, triggers, and procedures for activating and terminating the company’s infectious disease outbreak response plan, altering business operations (e.g., possibly changing or closing operations in affected areas), and transferring business knowledge to key employees. Work closely with your local health officials to identify these triggers.
- Establish a process to communicate information to employees and business partners on your infectious disease outbreak response plans and latest COVID-19 information. Anticipate employee fear, anxiety, rumors, and misinformation, and plan communications accordingly.
- In some communities, early childhood programs and K-12 schools may be dismissed, particularly if COVID-19 worsens. Determine how you will operate if absenteeism spikes from increases in sick employees, those who stay home to care for sick family members, and those who must stay home to watch their children if dismissed from school.
- Local conditions will influence the decisions that public health officials make regarding community-level strategies; employers should take the time now to learn about plans in place in each community where they have a business. Engage state and local health departments to confirm channels of communication and methods for dissemination of local outbreak information.
Resources for More Information
- COVID-19 Website
- What You Need to Know About COVID-19
- What to Do If You Are Sick With COVID-19
- Interim US Guidance for Risk Assessment and Public Health Management of Persons with Potential Coronavirus Disease 2019 (COVID-19) Exposure in Travel-associated or Community Settings
- Health Alert Network
- Travelers’ Health Website
- National Institute for Occupational Safety and Health’s Small Business International Travel Resource Travel Planner
- 2019 Novel Coronavirus Recommendations for Ships
Other Federal Agencies and Partners
Examples of Equivalent International Government Entities
- Europe: https://www.ecdc.europa.eu/en/geographical-distribution-2019-ncov-cases
- United Kingdom: https://www.gov.uk/guidance/coronavirus-covid-19-information-for-the-public
- Germany: https://www.auswaertiges-amt.de/de/ReiseUndSicherheit/reise-und-sicherheitshinweise
- Singapore: https://www.moh.gov.sg/covid-19