While world governments scramble to contain the spread of the coronavirus, businesses are fielding questions from employees who are concerned for their safety and protection in the workplace. As you develop your coronavirus response strategy, be mindful of employee privacy, anti-discrimination, and other employment law considerations. Ultimately, any actions employers take should be proportionate to the risks presented. Here are a few of the most common questions employers should ask and some practical tips.
Is Your Workplace Safe Under The Occupational Safety And Health Act?
The Occupational Safety and Health Act (“OSHA”) requires employers to provide a safe working environment for employees. This includes providing protections against “recognized hazards” which could lead to death or serious injury. When employees are likely to be exposed to hazards like coronavirus (e.g., healthcare workers, airline and other travel industry personnel, laboratory workers, etc.), OSHA requires the employer to (1) conduct a “hazard assessment” of its worksite; (2) conduct employee awareness training; (3) develop procedures for issuing and using “personal protective equipment” like gloves and masks; (3) develop a reporting and surveillance mechanism for exposed employees; and (4) maintain records of all its illness-related conduct.
An employee who complains about hazardous conditions is protected by OSHA’s whistleblower provision and cannot be subjected to an adverse employment action or otherwise retaliated against for raising such a concern.
Take Steps to Prevent Disability Discrimination Concerns
The Americans with Disabilities Act (“ADA”) extends anti-discrimination safeguards to employees who have physical, mental, or emotional impairments but are otherwise qualified to perform the essential functions of their jobs. These protections also extend to employees who are “regarded as” disabled. State legislation often provides similar protections. Employers should keep the ADA in mind when it comes to both screening employees for coronavirus and accommodating those who have contracted the disease or are perceived to be at risk.
- Can you screen your employees for fever?
Employers may consider fever screening employees returning from China because fever is typically one of the first symptoms of coronavirus. However, the ADA prohibits employers from conducting “disability-related inquiries” and “medical examinations.” The U.S. Equal Employment Opportunity Commission (“EEOC”) generally disfavors fever screening because it is likely to reveal other disabilities. To accomplish fever screening lawfully, the employer must be able to show that the screening is “job related and consistent with business necessity” or justified by a direct threat. Whether fever screenings meet either of these exemptions will depend on factors such as: the risk of exposure in the employer’s industry; the individual employee’s job responsibilities; the likelihood of coronavirus exposure in the region; and any other objective basis on which the employer seeks to test employees.
Some employers have asked employees who recently visited China to voluntarily screen themselves for fever and answer related questions. This may be an effective way of uncovering infected employees without running afoul of the ADA. Employers may also require employees to report any diagnosis of a contagious disease without requiring the employee to specifically identify the illness. Moreover, employers can send employees home if they display coronavirus-like symptoms. The business can then require a doctor’s note certifying the employee is fit to return to work before allowing him or her back on the premises.
- Can you mandate employee quarantines?
Mandatory quarantines could be viewed as discrimination under the ADA if they do not meet ADA exemptions. Rather than mandating quarantines, employers could consider allowing voluntary quarantines, implementing a temporary telecommuting policy, or placing affected employees on a paid leave of absence during the virus’ 14-day incubation period to determine whether the employee is infected. Whether these alternatives survive scrutiny under the ADA, however, depends on the facts and circumstances of each case, so employers should seek legal counsel before implementing a quarantine solution.
While the EEOC has not yet offered any coronavirus-specific guidance for employers, its guidance during the H1N1 influenza crisis titled “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act” offers several helpful tips. Although the guidelines were not made through the EEOC’s notice-and-comment rulemaking process, they at least provide insight into how the EEOC might address potential workplace discrimination related to coronavirus. Among other things, the guidance instructs employers to follow Centers for Disease Control and Prevention (“CDC”) guidelines and recommendations from state and local health authorities, especially if the disease has risen to the level of a direct threat. Also, the guidance provides several examples of questions that employers can ask their employees related to the illness without violating the ADA.
Are You Protecting Against Other Potential Forms of Discrimination?
Title VII of the Civil Rights Act prohibits discrimination on the basis of race, color, national origin, and other protected classes. Therefore, coronavirus response plans should focus on all employees, not just individuals of Asian descent. Likewise, a response plan could permit the company to send employees showing symptoms of the virus home, but as the Department of Labor’s influenza guidelines point out, the company’s decisions must comply with the laws prohibiting discrimination in the workplace on the basis of protected categories. Employers should also take action to prevent and respond to any racial or national origin-based harassment of Asian employees.
Are You Protecting Your Employees’ Privacy Rights?
Do not forget about employee privacy rights if you maintain records or health information about employees. Employers can face civil or even criminal liability under the Health Insurance Portability and Accountability Act (“HIPAA”), which protects an employee’s privacy over individually identifiable health information and restricts disclosure to others. HIPAA provides an exception, however, when disclosure of a co-worker’s illness is necessary to protect the lives of others. Privacy rights should be considered when evaluating whether and how to notify other employees about ill co-workers. If there is a true risk of a worker infecting others with coronavirus, disclosure may be permitted.
When Are Employees Entitled To Medical Leave Related To Coronavirus?
The Family and Medical Leave Act (“FMLA”) requires covered employers to provide job-protected leave for certain medical and family reasons. Specifically, employers with more than fifty employees must provide qualified employees up to twelve weeks of unpaid leave if they or a close relative are infected. Thus, employees with coronavirus and employees with a child, spouse, or parent infected by coronavirus are entitled to request unpaid leave.
Employers may be tempted to ask employees suspected of coronavirus exposure to take FMLA leave. If the employee demonstrates no symptoms, though, the employer cannot count any forced leave against the employee’s FMLA time. In situations where an employee wishes to continue working while infected, the employer may find comfort in the CDC’s recommendation that infected employees should be removed from the workplace for at least the 14-day incubation period. Finally, if the employee exhausts his or her twelve weeks of FMLA leave but still cannot return to work, the employer may consider offering the employee additional unpaid leave.
Can Employees Protest Working Conditions When There Is A Coronavirus Threat?
The National Labor Relations Act guarantees employees the right to organize into unions, engage in collective bargaining for better working conditions, and take collective action like organizing strikes if necessary. Unionized employees must be allowed to exercise their rights under their respective collective bargaining agreements if they seek greater employer intervention against coronavirus. Furthermore, non-union employees still have the right to engage in concerted activity for their mutual aid and protection, such as organizing a strike to protest working conditions.
Are You Considering State Laws in Your Plan?
For employees that become infected on the job, those employees may be entitled to receive state workers’ compensation benefits in lieu of wages. Also, in some cases, state law may offer greater employee protections than the federal statutes outlined above. For instance, in California, employers may be required to give an individual reporting time pay if the employee works less than half of a scheduled workday and the employer asks the employee to go home. Employers should therefore consider various state legal pitfalls when developing their coronavirus response plans.
PRACTICAL MEASURES TO PREVENT CORONAVIRUS INFECTION
Although the world is still learning how best to manage the coronavirus outbreak, there are a few steps you can take now to protect your employees.
- Educate your workforce. Misperceptions about the disease fuel employee fear. Prepare materials for your employees listing relevant CDC information and contact numbers.
- Allay employee fears. Reaffirm that the company is committed to protecting the wellbeing of its employees and will take all appropriate measures to the extent allowed by law. Also, offer tips for prevention, such as: receiving vaccinations; wearing a mask when the employee goes out; washing hands frequently; covering one’s nose and mouth when coughing/sneezing; avoiding sharing cups, utensils, water bottles, and other personal items; disposing of tissues appropriately; and the like.
- Consider appointing a human resources representative to serve as an ombudsperson to receive complaints.
- Allow employees who show signs of the virus to leave work and telecommute during the incubation period of the disease. Likewise, consider allowing employees with conditions that put them at a higher risk for complications resulting from a disease (e.g., employees with weakened immune systems, employees who are pregnant, etc.) to telework as a reasonable accommodation to reduce their chances of infection.
- For employers with many employees working abroad, consider recalling the employees for a limited time, especially if the workers are working in high risk areas.
- Issue policies instructing employees what to do if they show symptoms of coronavirus. These policies should discuss the employees’ rights under the law, such as FMLA leave.
- Evaluate your workers’ compensation policies to assure your organization has adequate insurance coverage.
- For employers with specific concerns about the coronavirus outbreak, consider seeking counsel from a competent medical professional with experience in infection control to offer medical advice on the coronavirus.
- Consider calling the CDC or local health authority to report the issue and find out if it has promulgated any guidance.
- For employers in high-risk industries, train staff in preventing and handling accidental exposure. Employers can refer to the latest CDC guidance at cdc.gov.
The right response to the coronavirus outbreak depends on several factors and requires careful consideration. The best plan should be tailored to your company’s needs and involve legal counsel as needed. And if you have any questions, we’re here to help.