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 now been five such pandemics in the last century:
- Spanish Flu (1918)
- Asian Flu (1950s)
- Hong Kong Flu (1960s)
- H1N1 Flu (2009)
- COVID-19 (2019-present).
As many employers are now experiencing first-hand, a pandemic can have a major impact on business operations. For example:
- employees may be forced to remain at home to care for family members
- multiple employees may fall ill at the same time
- employees may refuse to leave their home due to sheer panic.
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:
- create or update a pandemic preparedness plan (PPP)
- provide employee training or a refresher course on the PPP
- engage the state and local health department to confirm channels of communication and methods for dissemination of local outbreak information
- review sick leave policies to make sure they are flexible and consistent with public health recommendations
- purchase supplies, like tissues, soap and alcohol-based hand cleaners to encourage healthy habits in the workplace.
Pandemic preparedness plans
The Department of Health and Human Services (HHS) and the Centers for Disease Control and Prevention (CDC) have developed guidelines to assist businesses in planning for a global outbreak of influenza and other comparable catastrophes. The mantra for such plans, as noted by previous Administration encourages employers to “be flexible and non-punitive” when dealing with pandemic outbreaks.
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 consider:
- Triggers and procedures for starting and ending a pandemic response. These triggers may be identified with the assistance of local health officials.
- Establish a clear chain of command and communication that assigns responsibilities and duties and instructs both managerial and rank-and-file employees on the implementation and enforcement of the plan.
- Identify essential business functions and critical supply chains that are needed to keep the business running. Plan how the business will operate if a high number of employees must stay home, or supply chains are interrupted.
- Create policies for flexible work leave (e.g., consider staggered shifts).
- Be prepared if schools dismiss students or childcare programs close.
- Take into consideration the plan and policies already set forth by federal and local government authorities (city evacuation plans, plans for citywide immunization).
Preventing the spread of illness
A pandemic preparedness plan should identify, at a minimum, the following steps to keep employees from getting sick:
- Advise employees to stay home if they are sick. The CDC recommends that employees with flu-like symptoms stay home for at least 48 hours after they no longer have a fever or signs of a fever (have chills, feel very warm, have a flushed appearance or are sweating). A fever is defined at 100 degrees Fahrenheit or 38 degrees Celsius. If specific symptoms apply to a disease, such as COVID-19, advise employees to stay home if they exhibit the specific symptoms of that disease (i.e., shortness of breath, dry cough, fever, etc.).
- Encourage vaccines. Encourage all employees who want protection from the flu or other viruses to get vaccinated if a vaccine is available.
- Encourage respiratory etiquette. This includes providing employees with an adequate supply of tissues and reminding employees to cover coughs and sneezes.
- Encourage hand hygiene. Employees should be encouraged to wash their hands with soap and water for at least 20 seconds. This is approximately the time it takes to sing “Happy Birthday.” Alternatively, employees should have access to alcohol-based cleaners with at least 60% alcohol.
- Separate employees. Separate employees who become sick at work from other staff. When appropriate, ask the ill employee to go home.
- Routinely clean surfaces and items. Viruses can live on hard objects for up to eight hours and may spread when a person touches a hard surface or an object where the virus has landed and then touches his or her eyes, nose or mouth. Because hard surfaces and objects that are more likely to have frequent hand contact (such as computers keyboards, door handles, phones, etc.) they can be a source of employee contamination.
- Encourage contact with healthcare providers. Sick employees at higher risk of complications from the flu or any coronavirus strain should be directed to contact their healthcare provider as soon as possible.
- Consider essential business functions. Prepare for employees to stay home from work and plan ways for essential business functions to continue. This may mean that extra stock of essential business product is ordered or that employee shifts are staggered, in order to ensure a sufficient number of employees are present in the workplace.
- Provide information to overseas employees. Provide information to employees overseas about what to do if they get sick.
In addition to steps referenced previously, employers should take additional steps to prevent the spread of viruses if the conditions become more severe. These additional steps include:
- Active screening of employees. Conduct active screening of employees when they arrive at work. Ask about any symptoms during previous 24 hours. If the employee has experienced flu-like symptoms, direct the employee to go home.
- Extend employee sick leave to seven days. Extend the time sick employees stay home to at least seven days.
- Changing work duties and workspaces. Try to change work duties, workspace or work schedules for employees who are at higher risk for complications from contracting a virus. The goal is to minimize unnecessary contact/exposure.
- Detailed planning about essential business functions. Prepare for employees to stay home from work and plan ways for essential business functions to continue.
- Practice social distancing. Find ways to increase the space between people. This may be accomplished by canceling nonessential face-to-face meetings, by moving meetings to conference calls or Internet-based meetings or by canceling nonessential business travel. A more immediate solution may be moving workspaces further apart or creating flexible work hours, so there are fewer workers in the workplace at the same time. Also, telecommuting options may be necessary for some employees.
- Contingency planning for absenteeism. Make a contingency plan for increased absenteeism cause by illness. This may include cross training employees or hiring temporary workers.
- Guidance for overseas employees. Provide guidance to employees who are traveling overseas on what to do if they become ill.
There are currently no federal or state laws preventing an employer from requiring all employees – physically entering the workplace – to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII of the Civil Rights Act (Title VII) and the Americans with Disabilities Act (ADA) and other equal employment opportunity (EEO) considerations discussed herein.
In some circumstances, Title VII and the ADA require an employer to provide reasonable accommodations for employees who, because of a disability or a sincerely held religious belief, practice or observance, do not get vaccinated for COVID-19, unless providing an accommodation would pose an undue hardship on the operation of the employer’s business. The analysis for undue hardship depends on whether the accommodation is for a disability (including pregnancy-related conditions that constitute a disability) or for religion.
Reasonable accommodation requests
Persons with disabilities
An employee who chooses not to get vaccinated because of a disability (covered by the ADA) or a sincerely held religious belief, practice or observance (covered by Title VII) may be entitled to a reasonable accommodation that does not pose an undue hardship on the operation of the employer’s business.
Example An unvaccinated employee entering the workplace might:
- wear a face mask
- work at a social distance from co-workers or non-employees
- work a modified shift
- get periodic tests for COVID-19
- be given the opportunity to telework
- accept a reassignment.
To determine if an unvaccinated employee poses a “direct threat” in the workplace, an employer first must make an assessment of the employee’s present ability to safely perform the essential functions of his or her job. The factors that make up this assessment are the:
- duration of the risk
- nature and severity of the potential harm
- likelihood that the potential harm will occur
- imminence of the potential harm.
The determination that a particular employee poses a direct threat should be based on a reasonable medical judgment that relies on the most current medical knowledge about COVID-19. Such medical knowledge may include, for example, the level of community spread at the time of the assessment. Statements from the CDC provide an important source of current medical knowledge about COVID-19, and the employee’s healthcare provider, with the employee’s consent, also may provide useful information about the employee. Additionally, the assessment of direct threat should include factors such as:
- whether the employee works alone or with others or works inside or outside
- the available ventilation
- the frequency and duration of direct interaction the employee typically will have with other employees and/or non-employees
- the number of partially or fully vaccinated individuals already in the workplace
- whether other employees are wearing masks or undergoing routine screening testing
- the space available for social distancing.
If the assessment demonstrates that an unvaccinated employee with a disability would pose a direct threat to self or others, the employer must consider whether providing a reasonable accommodation, absent undue hardship, would reduce or eliminate that threat. Potential reasonable accommodations could include:
- requiring the employee to wear a mask or work a staggered shift
- making changes in the work environment (such as improving ventilation systems or limiting contact with other employees and non-employees)
- permitting telework if feasible
- reassigning the employee to a vacant position in a different workspace.
As a best practice, an employer introducing a mandatory COVID-19 vaccination policy and requiring documentation or other confirmation of vaccination status should notify all employees that it will consider requests for reasonable accommodation based on disability on an individualized basis.
If an employee is choosing to be unvaccinated due to his or her sincerely held religious belief, practice or observance and communicates his or her inability to be vaccinated for any of these reasons, the employer must provide a reasonable accommodation unless it would pose an undue hardship. Employers also may receive religious accommodation requests from individuals who wish to wait until an alternative version or specific brand of COVID-19 vaccine is available. Such requests should be processed according to the same standards that apply to other accommodation requests.
Under Title VII, some employees may seek job adjustments or may request exemptions from a COVID-19 vaccination requirement due to pregnancy. Such employees may be entitled (under Title VII) to adjustments to keep working if the employer makes modifications or exceptions for other employees. These modifications may be the same as the accommodations made for an employee based on disability or religion.
If an employee seeks an exemption from a vaccine requirement due to pregnancy, the employer must ensure that the employee is not being discriminated against compared to other similar employees in regard to their ability or inability to work. This means that a pregnant employee may be entitled to job modifications, including telework, changes to work schedules or assignments, and leave to the extent such modifications are provided for other employees. Employers should ensure that supervisors, managers and human resources personnel know how to handle such requests to avoid disparate treatment in violation of Title VII.
As with any employment policy, employers that have a vaccine requirement may need to respond to allegations that the requirement has a disparate impact on – or disproportionately excludes – employees based on their race, color, religion, sex or national origin under Title VII – or age under the Age Discrimination in Employment Act (ADEA).
Note: Because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement than others.
It would also be unlawful to apply a vaccination requirement to employees in a way that treats employees differently based on disability, race, color, religion, sex (including pregnancy, sexual orientation and gender identity), national origin, age or genetic information, unless there is a legitimate nondiscriminatory reason.
Confidentiality of medical information
The ADA requires an employer to maintain the confidentiality of employee medical information, such as documentation or other confirmation of COVID-19 vaccination. Although the EEO laws themselves do not prevent employers from requiring employees to bring in documentation or other confirmation of vaccination, this information, like all medical information, must be kept confidential and stored separately from the employee’s personnel files under the ADA.
Insurance surcharges for the unvaccinated
The legal issues surrounding companies choosing to levy surcharges on the unvaccinated rather than imposing vaccine mandates on all of its employees were addressed in specific guidance from the Department of Labor (DOL), Health and Human Services (HHS). The guidance confirmed that employers can incentivize employees by offering discounts on monthly insurance premiums for those who have been vaccinated for COVID-19 or impose insurance “surcharges” for those who choose not to be vaccinated (for reasons other than due to a medical condition). However, there are certain protocols, of course, that must be adhered to:
- Insurance discounts/surcharges for COVID-19 vaccinations must adhere to existing Health Insurance Portability and Accountability Act (HIPAA) wellness guidelines for activity-based wellness programs. Requiring an employee to be vaccinated for COVID-19 to receive the benefit of lower health insurance premiums does require the employee to perform or complete an activity related to a health factor and thus must satisfy the existing five criteria for activity-based wellness arrangements under HIPAA:
- The program must be reasonably designed to promote health or prevent disease (the guidance suggests helping schedule vaccination appointments and establishing a toll-free hotline to answer questions);
- The program must provide a reasonable alternative standard to qualify for the discount on health insurance premiums (the guidance suggests providing the discount if the individual can verify it would be unreasonably burdensome or medically inadvisable to be vaccinated for COVID-19 due to an existing medical condition);
- The program must provide notice of the availability of a reasonable alternative standard (the guidance suggests mandating compliance with the CDC’s mask guidelines for any employee who cannot otherwise be vaccinated because of an existing medical condition);
- The incentive award (or penalty) cannot be more than 30% of the total cost of employee-only coverage when combined with all other wellness program awards or penalties; and
- All employees must be offered the opportunity to qualify for the incentive at least once per year.
- Note: The guidance does not require an accommodation for religious or other non-medical reasons. There is also no prohibition against allowing employees to meet the vaccination criteria at any time during the year.
- The premium discount/surcharge amount must be included in affordability calculations under the Affordable Care Act (ACA). Wellness incentives for COVID-19 vaccinations are considered the same as any other non-tobacco incentive. To determine whether the employee’s monthly premium cost is “affordable” employers with more than 50 full-time employees or full-time equivalents must disregard any premium discount amounts and include any vaccine surcharge amounts in the total cost of employee-only coverage.
- Employers may not exclude employees from eligibility or coverage under a group health plan solely because of an employee’s COVID-19 vaccination status. As an alternative to using a vaccine surcharge to incentivize employees, several employers have considered providing an exclusion from coverage under a group health plan for COVID-related claims for nonvaccinated employees. Such exclusionary practices would violate HIPAA nondiscrimination mandates and thus are not permissible.
- Employers must provide 100% coverage of all COVID vaccination costs, including boosters. Employers must provide coverage under their non-grandfathered group health plan for 100% of the cost of all vaccine shots this coverage mandate also include the cost of any booster doses authorized or approved by the Food and Drug Administration (FDA) or through an Emergency Use Authorization through the Centers for Disease Control (CDC). Other laws covering pandemics
The creation and implementation of a Pandemic Preparedness Plan (PPP) should consider the overlap of several employment related statutes.
Other Laws covering pandemics
Family and Medical Leave Act
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:
- the care of an employee’s spouse, son or daughter or parent with a serious health condition
- a serious health condition that renders the employee unable to perform essential functions of his or her position.
In certain circumstances, workers or their family members who contract an illness similar to the H1N1 virus 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.
The Families First Coronavirus Response Act (FFCRA) has expanded the FMLA to include family and medical leave in the event of a “public health emergency.” Under this new law employers with fewer than 500 employers are required to provide leave for employees to care for children due to school closures or the loss of a caregiver due to COVID-19. For more information see the Families First Coronavirus Leave Act chapter.
Occupational Safety and Health Act
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 virus symptoms. See the Safety and Health chapter for more information.
Americans with Disabilities Act
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 H1N1 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.
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. 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:
duration of the risk
the nature and severity of the potential harm
the likelihood that potential harm will occur
the imminence of the potential harm.
The ADA is further relevant to pandemic preparation in at least three ways:
- The ADA regulates employers' disability-related inquiries and medical examinations for all applicants and employees, including those who do not have ADA disabilities.
- The ADA prohibits covered employers from excluding individuals with disabilities from the workplace for health or safety reasons unless they pose a "direct threat" (i.e., a significant risk of substantial harm even with reasonable accommodation).
- The ADA requires reasonable accommodations for individuals with disabilities (absent undue hardship) during a pandemic.
The “direct threat” standard is the most important concept during a public health emergency. Whether a pandemic flu or virus rises to the level of a direct threat depends on the severity of the illness.
During a pandemic, employers should rely on the latest CDC or state or local public health agency recommendations as to their recommendations for the workplace. Based on the guidance of the CDC and other public health agencies as of March 2020, the COVID-19 pandemic meets the direct threat standard. This supports a finding that a significant risk of substantial harm would be posed by having someone with COVID-19, or symptoms of it, present in the workplace at the current time. Such assessments could change over time.
Company actions that are permitted upon the finding that a virus has reached the level of a pandemic
- Employees who become ill with symptoms of a flu-like illness at work during pandemic should leave the workplace and employers may advise such workers to go home. Thus, an employer can send home an employee with a virus or symptoms associated with it.
- Employers may ask employees if they are experiencing symptoms, such as fever or chills and a cough or sore throat; or in the case of COVID-19, symptoms such as fever, chills, cough, shortness of breath or sore throat.
- Employers may monitor employees' temperatures. Generally, measuring an employee's body temperature is a medical examination. Once a pandemic illness becomes widespread in the community as assessed by state or local health authorities, or the CDC, employers may measure employees' body temperatures. However, employers should be aware that some people with influenza, including the 2009 H1N1 virus or COVID-19, do not have a fever. As with all medical information, the fact that an employee had a fever or other symptoms should be kept confidential.
- Generally, an employer may not inquire about specific underlying medical conditions that its employees may have. However, if a pandemic become severe or serious according to state or federal public health officials, employers may conclude that its employees will face a direct threat if they contract the pandemic illness. In those circumstances, employers may make disability-related inquiries or require medical examinations of asymptomatic employees to identify those at higher risk of complications if they contract the illness.
- An employer may ask an individual who did not report to work the specific reason for his or her absence.
- Employers may require employees who have been away from the workplace during a pandemic to provide a doctor's note certifying their fitness to return to work. However, doctors and other healthcare professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as an email to certify that the individual does not have the pandemic virus.
Privacy rights and possible employee exposure
If an employer becomes aware that one its employees has tested positive for a pandemic illness, such as COVID-19, it may not share the name of the infected employee with other employees. Instead, an employer should simply inform fellow employees of their possible exposure to the pandemic illness, but maintain the confidentiality of the employee with the confirmed illness. Employers should advise employees exposed to a co-worker to refer to CDC guidance for how to conduct a risk assessment of their potential exposure.
The ADA’s regulations state that any medical information regarding the medical condition of an employee shall be treated as a confidential medical record, except:
Supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations.
First aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment.
Government officials investigating compliance with this part shall be provided relevant information on request.
Genetic Information Nondiscrimination Act
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.
Under many state workers’ compensation statutes, to be compensable, an occupational disease must be related to a “special risk” or hazard of employment beyond the risk ordinary people are exposed to. Thus, if the employees work environment and specific responsibilities may increase that workers’ exposure to a virus or bacteria, the worker could potentially argue that the disease is compensable. This creates a further incentive for the employer to create or update a PPP and keep employees well informed of its policies and procedures.