KMK Law Management Rights Blog

Over the past week, the number of confirmed cases of Coronavirus (COVID-19) in the United States has more than doubled.  Most employers are considering measures to help them navigate the impact of Coronavirus in the workplace.  The problem employers face is that employment laws were simply not written with scenarios like the Coronavirus crisis in mind.  For example, OSHA’s general duty clause requires that employers furnish their employees a workplace that is free from recognized hazards that are likely to cause death or serious physical harm.  An employer might conclude that this obligation requires close monitoring of employee heath to avoid spreading the Coronavirus in the workplace.  However, the Americans with Disabilities Act (ADA) prohibits employers from making disability related inquiries and requiring medical exams of employees absent a reasonable belief that an employee’s medical condition poses a “direct threat” to the workplace, creating a “business necessity.”  These rules would be relaxed if a health agency such as the CDC declared the Coronavirus a pandemic, but that has not happened to date.  As a result, employers are placed in an uncertain situation and the reality is that there is no completely risk free way to approach this issue.

Every workplace is different but in general, employers should consider the following:

1.  Promote Sanitary Practices.

Maintain a hygienic working environment by performing routine cleaning.  Post reminders to wash hands thoroughly and monitor supply levels of hand soaps and hand sanitizers to reduce the spread of germs. 

2.  Encourage Employees to Call in Sick.

Encourage employees to stay home when they are ill.  Employees who appear to have acute respiratory illness symptoms should be separated from other employees and sent home immediately. Consider temporary revisions to attendance and PTO policies and evaluate options for working from home.   The CDC encourages employers to forego requiring doctor’s notes from employees who have an acute respiratory illness. Employers should consider whether this approach is suitable in their workplaces.​

3.  Travel Restrictions.

Employers are free to restrict or suspend business related travel, particularly where alternatives such as teleconferencing are feasible.  Employers may advise employees of the risks of travelling to destinations that have experienced a significant outbreak or substantial number of confirmed cases of Coronavirus and may request that returning employees stay home for the Coronavirus incubation period (currently identified as a 14 days).  Again, exceptions may need to be made to attendance and PTO policies.  Some employers are considering whether to pay employees during quarantine periods.  Employers must also consider how their approach is impacted by their leave policies and applicable laws.

4.  Employee Refusals to Work. 

OSHA allows employees to refuse to come to work if they have a good faith belief that they will be exposed to a dangerous condition and the danger of death or serious injury is imminent.  This will be a case-by-case analysis but in most workplaces in the United States, the imminent requirement is not likely met at present.

5.  Prepare a Plan.

Given the fluid nature of this situation, it makes sense for employers to assemble a team to consider the best approach to the Coronavirus in their workplaces.  Depending on the size of the organization, the team may include, where applicable, managers with responsibility for operations, human resources, legal, information technology and compliance. Topics to address include: 

• Workplace safety measures;
• Employee travel and travel restrictions;
• Attendance and leave policies;
• Quarantine measures;
• Reporting and employee privacy;
• Facility shutdowns;
• Employee communication and assistance;
• Communication with federal, state and local healthcare agencies.

As with any guidance related to infectious illnesses and disease outbreaks, best practice measures are subject to updates as circumstances change or develop.  If you need assistance with this issue, please contact a member of our Labor & Employment Group.