The circumstances surrounding COVID-19 (commonly referred to as the “coronavirus”) are unfolding each day. Currently, there is no evidence of widespread transmission of COVID-19 in the U.S. Indeed, the Centers for Disease Control and Prevention (CDC) advise that most American workers are at a low risk of contracting coronavirus absent sustained human-to-human transmission with infected travelers from abroad or other close contact with infected persons. Nonetheless, as individuals take steps to prepare for a potential outbreak, employers must also prepare for the possibility of a workforce impacted by an outbreak of COVID-19. There are several legal issues to consider.
- Review the CDC Guidelines for Employers. The CDC has published interim guidance for businesses and employers, which covers a variety of situations, including how to handle ill employees who report to work, minimizing the spread of contagious illness, and addressing employees returning from travel.
- Set expectations in advance. Now is a good time to recirculate paid and unpaid leave policies for employees. Depending upon the size and nature of an outbreak, along with the type of workforce, employers could also consider providing additional paid leave and/or more flexible work-from-home arrangements to incentivize employees to stay at home.
- Encourage employees to take advantage of paid leave. Employers should encourage employees to use available paid leave benefits and investigate whether benefit plans (such as Short Term Disability) extend to absences for long-term quarantine or isolation orders. Additionally, employers should be mindful of any limitations set forth by a statutory paid sick leave law. For example, some paid sick leave laws prevent employers from soliciting private health information from employees, requesting doctors’ notes before an employee is absent for more than three consecutive days, or mandating the use of paid leave.
- Don’t forget about unpaid leave entitlements and disability accommodations. An illness like COVID-19 may, in certain circumstances, qualify as a serious health condition under the Family and Medical Leave Act (FMLA) or a disability under a state or federal disability discrimination law. Further, some states have specific laws protecting employees who return to work after taking leave due to a quarantine or isolation order.
- Keep OSHA in mind. The Occupational Safety and Health Administration (“OSHA”) requires employers to provide a safe and healthy workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” If OSHA determines that employees are reasonably likely to be exposed to COVID-19 or other contagious illness exposure, then the employer should develop a plan outlining the steps to protect employees. It is also important to note that a covered employer is required to record any cases of employees infected on the job by COVID-19 with OSHA.
- What about face masks? Employers may receive requests from employees who wish to wear a medical mask or respirator to prevent contracting COVID-19. In certain settings, such as retail or restaurants, these requests might cause increased anxiety and panic among other employees or customers. Under OSHA’s respiratory protection standard, which covers the use of safety masks in the workplace, an employer may prohibit an employee from wearing a safety mask or respirator if there is no known safety or health hazard. Based on current CDC guidance (March 2, 2020), face masks are only necessary for individuals who are showing symptoms of COVID-19 or who are treating or caring for an infected person, or for individuals to prevent the spread to others. Therefore, and consistent with OSHA guidelines, an employer may prohibit healthy employees from wearing a medical mask or respirator, if the employee’s sole purpose is to avoid contracting COVID-19. Please note that this analysis may be different for employees with a disability or physical condition, or in occupations where employees work directly with individuals impacted by a contagious illness.