Ten steps for employers to consider during the coronavirus outbreak

June 15th, 2020 Kathy Speaker MacNett at SkarlatosZonarich

Ten Steps for Employers To Consider During the Coronavirus Outbreak

Employers are asking what measures should be implemented in response to the Coronavirus – COVID-19 outbreak.  Some are even questioning if they need a separate Coronavirus policy for their employees. Consider instead utilizing the employment laws and established Human Resources tools already in place, and supplementing with additional policies applicable to this crisis and future health care crises, only as needed.

The Coronavirus has caused some 3,800 deaths as of this writing; and continues to spread causing wide-spread concern inside and outside of the workplace.  Employers can and should implement positive steps, without causing panic.  We recommend consideration of the following ten steps:

  1. Emphasize the basics by encouraging employees to ramp up protections such as:
    • frequent and longer handwashing using soap and water, 
    • use of hand sanitizers, 
    • covering coughs and sneezes,
    • staying home when feeling sick, and 
    • disinfecting workstations, including landlines and cell phones;

       

  2. Stay current with developments by checking the Center for Disease Control’s (“CDC’s”) website and applicable state websites for emergency declarations, which may limit travel or provide closures, or trigger price gouging limitations.  For example, eight states, including California, Florida, Maryland, New York, Ohio, Pennsylvania, and Washington already have emergency declarations in place, and other states will likely follow with their own declarations;

     

  3. Allow liberal use of existing sick leave, vacation time or paid time off (“PTO”) or even advancement of leave for exposed or sick employees and those who believe they are caring for exposed family members, and clearly communicate the availability of potential types of leave to employees, and inform employees of the possible use of Family Medical Leave Act  (”FMLA”), if the employer is covered by the FMLA, and explain any similar policies that a non-covered employer has implemented voluntarily.  Intermittent leave under the FMLA or a voluntary non-FMLA policy, if applicable and available to an employee, for example, could cover doctors’ visits and testing;

     

  4. Mitigate the risk of violating discrimination laws such as the Americans with Disabilities Act, related state laws, or the Rehabilitation Act.  The ADA and other laws, enforced by the Equal Employment Opportunity Commission (“EEOC”) or similar laws enforced by state agencies, prohibit discrimination based on an employee’s “disability” or the employer’s “perception of [an employee’s] disability”.  The EEOC states on its website that “[T]he ADA and Rehabilitation Act do not interfere or prevent employers from following the guidelines and suggestions made by the CDC…”  https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm However, that EEOC language will not prevent individual employees from suing under those acts, if it is perceived that employees were prohibited from working temporarily or terminated because of a “disability” or “perception of disability,” which the employer could have accommodated without undue hardship.  Employers should document and be prepared to enunciate why they were unable to reasonably accommodate the employee by some means other than prohibiting the employee from working or terminating the employee.  One such reasonable accommodation might be allowing the employee to work from home.  On the other hand, be aware that the Occupational Safety and Health Act (“OSHA”) requires you to keep all your employees safe, creating some tension between the laws; 

     

  5. Utilize telecommuting for appropriate employees realizing that this may cause continued demand for telecommuting by employees in the future;

     

  6. Require that symptomatic employees arrange for medical testing and appropriate return to work certification from a health care provider.  To lessen the potential legal risk, employers may wish to consider paying those employees for the time missed from work as a reasonable accommodation to protect other employees; 

     

  7. Request voluntary quarantines of asymptomatic employees, without retaliation for negative responses, unless that employee presents a direct threat to him/herself or others in the workplace;

     

  8. Remember that other laws, such as the federal wage and hour law (“FLSA”) and state minimum wage laws remain applicable. Salaried employees may still have to be paid for time missed from work in a given workweek in which they performed some services, while most hourly employees need only be paid for actual hours worked. Unemployment Compensation benefits may be available to employees, who are able and available for work, but who cannot work due to plant/office closures or being sent home from work; 

     

  9. Rethink the need for gatherings, meetings, seminars and travel by substituting technology such as conference calls, Facetime or equivalents and webinars.  The term “social distancing” is coming into vogue as a result of the recent crisis; and

     

  10. Finally, proactively address production needs in order to lessen potential adverse business impact if more school and day care closures result from the Coronavirus with related impacts upon your employees.  Also check your business interruption insurance for coverage and exceptions.

Overall, react positively, reasonably, and vigilantly as information develops without buying into the culture of panic.

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