March 2, 2020 What Should Employers Do Regarding the Coronavirus, COVID-19?

As the COVID-19 virus continues to create national and international unease, employers are increasingly asking what they should be doing, and what is/is not permitted, to protect their employees. This E-Update is intended to provide some proactive steps and considerations.

Discussion

When taking action to respond to a global health crisis like COVID-19, employers should balance their obligations to protect their workforce from illness and injury (premised on state and federal Occupational Safety and Health Administration (OSHA) guidance) with their obligation to not discriminate against employees based upon protected characteristics like medical conditions or national origin (premised on Title VII and, in California, the FEHA).

For now, we recommend the following steps:

1. Advise employees of the World Health Organization’s (WHO) currently recommended health and safety precautions. These include:

  • Wash hands often, with soap and water, for at least 20 seconds
  • Avoid touching eyes, nose, or mouth with unwashed hands
  • Avoid close contact with people who are sick
  • Cover your coughs or sneezes with a tissue, then throw the tissue in the trash

2. Encouraging sick employees to stay home, with a communication like this: “In accordance with Occupational Safety and Health Administration (OSHA) guidance on maintaining a healthy workplace and best practices, employees who have a fever, respiratory symptoms (excluding allergies), or other contagious illness should stay home. When you are sick, you may use paid sick leave or, if you do not have paid sick leave available, unpaid leave. Alternatively, you may use vacation/PTO, with manager approval. Also, if your position is of a nature that allows for remote work, you may be permitted to work from home as an option.”

3. Pause unnecessary travel. Although most employers are stopping all travel to regions particularly impacted by COVID-19, many are pausing all inessential travel, especially internationally. The U.S. State Department provides guidance on this, rating countries by level of risk. Current areas listed at heightened risk include China, Hong Kong, Iran, Italy, Japan, and South Korea, but it seems likely that list will change, and likely grow, over time.

4. Assess employees traveling to/from impacted regions on a case-by-case basis. It is reasonable to request that the employee provide a return-to-work release from a healthcare provider, or that they work remotely upon their return for a period of 14 days, out of an abundance of caution. If the employee is in a position that does not lend itself to remote work, providing paid leave is a reasonable option.

(As a cautionary note, employers should be cautious with universally offering or requiring remote work. In particular, employers who now permit or require remote work for traditionally “on-site” positions may find it difficult to later demonstrate that remote work isn’t a viable option for employees who request it. As such, employers who do encourage or require remote work should be thoughtful in communicating the temporary and unique nature of that arrangement.)

5. Ensure routine cleaning of hard surfaces in the workplace and provide employees with disposable wipes or other disinfectants to use on keyboards and telephones.

6. When responding to employee concerns – whether about their own health or travel or that of co-workers – look to paid sick leave, anti-discrimination, reasonable accommodation, and leave of absence policies to guide decisions. Keep in mind that although transitory illnesses are generally not serious enough to qualify for FMLA/CFRA leaves, more serious illnesses that disable an employee for more than three consecutive days may invoke statutory leave protection.

Some clients have asked about the advisability of building-entry health checks – for example, temperature screenings. We have been advising against that, partially because those processes may be seen as an unauthorized “medical examinations” under the Americans With Disabilities Act (ADA), but also because the efficacy of that type of testing has not yet been established. This is an area to monitor, however, especially if the virus spreads more widely and early tests become available domestically.

For additional information, please see the Centers for Disease Control and Prevention's (CDC) recently published interim guidance for non-healthcare businesses, available here.

What This Means

The COVID-19 virus situation is changing by the day. Employer actions and responses should be individually tailored, based on facts and governmental recommendations (rather than fears and biases), carefully communicated and revisited as new information becomes available. For now, thoughtful employers will, at a minimum, pause unnecessary travel, encourage sick employees to stay home, keep their workplace as hygienic as possible, and monitor developments closely.

This E-Update was authored by Joe Connaughton and Camille Gustafson. For more information please contact Mr. Connaughton, Ms. Gustafson, or any other Paul, Plevin attorney, by calling (619) 237-5200.

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