All employers play a key role in protecting the health and safety of their employees during a pandemic outbreak. A “pandemic” is a global epidemic. There have been four such pandemics in the last century, prior to the 2020 COVID-19 outbreak:
A pandemic can have a major impact on business operations. For example:
These and other potential effects underscore the importance of disaster planning, making it crucial for employers to have a pandemic preparedness plan to minimize the risk and panic of employees and at the same time, provide continuity in business operations. Employers should:
The Department of Health and Human Services and the Centers for Disease Control and Prevention have developed guidelines to assist businesses in planning for a global outbreak of influenza and other comparable catastrophes. More specifically, the CDC has issued guidance for businesses and employers to respond to the 2020 coronavirus pandemic, COVID-19.
A successful pandemic preparedness plan includes a variety of measures to protect workers and ensure that the business operations can continue. Specifically, a plan should:
A pandemic preparedness plan should identify, at a minimum, the following steps to keep employees from getting sick:
In addition to steps referenced previously, employers should take additional steps to prevent the spread of the flu virus or coronavirus if the conditions become more severe. These additional steps include:
The creation and implementation of a Pandemic Preparedness Plan should consider the overlap of several employment related statutes.
The Family and Medical Leave Act (FMLA) requires covered employers to provide eligible employees with up to 12 weeks of unpaid leave during a “12-month period,” for various qualifying reasons. Qualifying reasons include:
In certain circumstances, workers or their family members who contract an illness similar to the flu or coronavirus may be eligible for FMLA leave. To make this determination, the degree of illness needs to constitute a serious health condition. Employers who become aware of an employee's need for FMLA leave must notify the employee of his or her eligibility, either orally or in writing. See Chapter 17: Family and medical leave.
In the context of the COVID-19 pandemic, Congress passed the Families First Coronavirus Response Act, which temporarily expanded the reasons for which employees could take FMLA leave to include the care of a child due to the COVID-19-related closures of a school or child care provider. This expanded FMLA right, which applies to employers with fewer than 500 employees, including smaller employers not usually covered by FMLA, is scheduled to end on December 31, 2020. See Chapter 17: Other types of leave.
Under Occupational Safety and Health Act (OSH Act) employers have a general duty to provide their workers with a safe workplace. This duty implies potential liability if an employer flagrantly allows a serious ill employee to remain at work. As such, employers should identify possible work-related exposure and health risks to your employees and in the event of pandemic, employers should send employees home if they display influenza like symptoms. See Chapter 33: Safety and health.
The Americans with Disabilities Act (ADA) prohibits employers from discriminating against “qualified individuals” with a disability. Generally, an employee who suffers from a one- or two-week bout with the flu or coronavirus would not be considered disabled, however, employers should take care not to make inquiries about work availability that are disability related. For those employees who have a disability, an employer is required to provide reasonable accommodations, absent an undue hardship, however, regardless of disability status, employers must be prepared to accommodate sick employees and should be cautious of caregiver discrimination. In addition, those with underlying health conditions that place them at a greater risk of severe illness because of the pandemic virus may be entitled to reasonable accommodations to reduce their possible exposure to the virus.
The ADA also regulates an employers’ disability related inquiries and medical examinations for all applicants and employees, including those who do not have an ADA disability. The ADA prohibits covered employers from excluding individuals with disabilities from the workplace for health or safety reasons unless they pose a “direct threat.” Factors used to consider whether an employee poses a “direct threat” include:
See Chapter 11: Disabilities and reasonable accommodations.
The Genetic Information Nondiscrimination Act (GINA) prohibits the use of genetic information in employment decisions and requires that genetic information be maintained as a confidential medical record, with strict limits on its disclosure. Employers need to take care about how they treat medical information voluntarily disclosed during an employee’s illness. See Chapter 12: Discrimination.
If the employees’ work environment and specific responsibilities may increase those workers’ exposure to a virus or bacteria, a worker could potentially argue that the disease is compensable under Tenesee’s workers’ compensation program. This creates a further incentive for the employer to create or update a PPP and keep employees well informed of its policies and procedures. See Chapter 35: Workers’ compensation.
In addition to the expanded FMLA leave right discussed above, the Families First Coronavirus Response Act also created a new paid sick leave mandate. Employers with fewer than 500 employees must provide two weeks of paid leave for certain specific reasons associated with the COVID-19 pandemic. This leave right expires on December 31, 2020. See Chapter 17: Other types of leave.
Policies and Forms
Chapter 43: Pandemic outbreaks