With reported cases of coronavirus in the U.S. and the Trump administration's declaration that the virus is a public health emergency, employers and employees are starting to get worried. The virus has spread fast since it first appeared in December 2019 in Wuhan, China, killing more than 3,000 people and sickening more than 100,000. The World Health Organization has named the disease that is causing the current outbreak of coronavirus, COVID-19.
With an incubation period of two to 14 days, the virus continues to spread, despite travel restrictions. Health authorities believe infected people can spread the virus before they begin to show symptoms, increasing the likelihood that they will pass the illness. Symptoms associated with the virus include fever, cough, and trouble breathing. "While severe illness, including illness resulting in several deaths, has been reported…other patients have had a milder illness and have been discharged," according to the U.S. Centers for Disease Control.
COVID-19 has significant implications for employers and employees. An employer will want to have a measured approach to protecting their employees and customers while managing risk to the business. As this is an evolving situation, it will be key to stay informed and adapt as needed.
Business Planning
Employers should have a plan for ongoing operations for a disaster or business disruption. The plan should detail how the organization's operations will continue to run if a large portion of employees are unable to work and how the organization will recover if a disruption occurs. After an event, it is good to conduct a post-mortem to see how the plan worked.
Communication
It is essential to communicate with employees and even more so during a crisis. Have a system in place so you can give employees information and guidance, such as:
- Encourage good hygiene
- Reminders about paid time off and other health benefits you offer
- Let them know of policies or rules that may be more flexible due to a crisis
- Have a point of contact for employees to reach out to with questions or concerns
Legal Considerations
While employers want to help employees stay clear of COVID-19, they must be careful of discrimination. People can wrongly assume that individuals who are Chinese have a higher risk of exposure to the virus. Employers need to be careful when they hear things in the workplace that may target members of a protected class and take action, including reiterating and reviewing anti-discrimination, harassment, bullying, and retaliation policies. Additionally, be careful not to discriminate against people with the virus and make sure attempts to ensure employees are well enough to return to work are legally compliant.
The U.S. Equal Employment Opportunity Commission (EEOC) has provided guidance for employers on navigating coronavirus in the workplace.
Employers have a duty under the General Duty Clause of the Occupational Safety and Health (OSH) Act to ensure that their employees have a safe and healthy workplace. For further information, OSHA's website provides helpful resources.
The WARN Act imposes a notice of obligation on covered employers who implement a “plant closing” or “mass layoff” in certain situations, even when they are forced to do so for economic reasons. Even though COVID-19 was an unforeseeable business circumstance, an employer should provide as much notice to affected employees as is practicable under the circumstances.
The Fair Labor Standards Act (FLSA) is the foundation of wage and hour law in the U.S. Employers should consider applicable provisions as well as any state or local laws regarding pay. On the one hand, employers must think of the possible impact of not paying for time an employee does not work (employee morale, public perception) and, on the other, if pay is provided, how long to continue compensating an employee for not working during a health crisis.
Best Practices for Maintaining a Healthy Workforce
- Actively encourage sick employees or employees with coronavirus symptoms to stay home. Employees should notify their supervisor and call their doctor.
- Options to keep the workforce as healthy as possible, include employing social distancing measures, implementing staggered shifts or other alternative work schedules, allowing for remote work, encouraging videoconferencing and teleconferencing instead of business travel, sending symptomatic employees home, and implementing quarantines or even shutting down operations if needed.
- Ensure that your leave policies are flexible and consistent with public health guidance and that employees are aware of these policies. The Family and Medical Leave Act (FMLA) or state equivalent leave and potential workers' compensation may apply. Also, be mindful that more employees than usual may need to stay home to care for sick family members or children in the event of a school closing.
- Routinely clean all frequently touched surfaces in the workplace and provide tissues, alcohol-based hand rubs, and disposable wipes for employees to use. Encourage employees to clean their hands often and diligently with soap and water for at least twenty seconds, and when coughing or sneezing, do so into a tissue or upper sleeve, not into their hands.
- Talk with companies that provide your business with contract or temporary employees about the importance of sick employees staying home and encourage them to develop appropriate leave policies.
- Employers should revisit attendance policies and how stringently they will apply sick leave and unscheduled absences. Consider forgoing counting absences during an epidemic.
- If an employee is confirmed to have the virus, employers should consider what steps to take but maintain confidentiality as required by the Americans with Disabilities Act (ADA). Communicate the situation delicately to avoid unnecessary panic in the workplace. Employees exposed to a coworker with confirmed COVID-19 should be sent home and refer to CDC guidance for how to conduct a risk assessment of their potential exposure.
Coronavirus FAQs for Employers
Q: What should employers know about employee travel as it relates to the coronavirus?
A: Employers may restrict business travel and all nonessential travel to Warning Level 3 areas. The CDC website provides current risk notices for travel. For personal travel to high-risk areas, employers may deny time off based on the destination, business costs resulting from quarantine, or other legitimate business reason, not the national origin of the employee.
Q: Can an employer take the temperature of an employee coming to work?
A: Generally, an employer cannot do that. Checking the temperature of an employee should not happen unless there are directives from applicable local, state, or federal public health authorities.
Q: Should I ask for a doctor's note from an employee?
A: Employers can generally require a doctor's note if sick time is needed for a few days. However, it may be difficult for an employee to obtain a return to work doctor's note as health care facilities may be extremely busy and not able to provide documentation in a timely way. The CDC does not require a health care provider's note even for employees who are sick with acute respiratory illness to validate their illness or return to work.
Q: Are unemployment benefits required for workers due to an employer-instituted quarantine, temporary shutdown, or mass layoff?
A: Yes, workers are generally entitled to unemployment insurance if they are furloughed when business temporarily shuts down, and all other unemployment requirements are met.
Q: How is employee privacy impacted by the coronavirus?
A: If an employee has a confirmed case of the virus, coworkers should be notified, but the individual's identity may not be revealed. Employers may ask if workers are experiencing COVID-19 symptoms, but responses should be contained in a separate, confidential medical file with access limited to only those required to know.
Q: How does COVID-19 compare to past epidemics?
A: 2019 COVID-19 novel coronavirus. First appearing in Wuhan, China, and thought to have originated from an animal source, COVID-19 is transmissible from person-to-person. Currently, the novel coronavirus has infected more than 90,000 individuals, leading to over 3,000 deaths, with a mortality rate of about 3.5%.
2014 Ebola. The 2014 outbreak in West Africa was the largest since the virus' first discovery in 1976. With a mortality rate of 50%, this outbreak lead to over 28,000 cases and 11,315 deaths.
2009 H1N1 Swine Flu. Over 20% of the world's population was affected by the 2009 H1N1 virus, spreading to 214 countries. This lead to more than 284,000 deaths and a fatality rate of 0.02%.
2002 SARS coronavirus. First seen in Guangdong, China, is thought to be an animal virus that then infected and spread person-to-person. SARS affected 26 countries and resulted in more than 8,000 cases and 774 deaths, with a fatality rate of about 10%.
Final Thoughts: All employers should be ready to implement strategies to protect their workforce from COVID-19 while ensuring continuity of operations. During a COVID-19 outbreak, all sick employees should stay home and away from the workplace, respiratory etiquette and hand hygiene should be encouraged, and routine cleaning of commonly touched surfaces should be performed regularly. Be sure to monitor global, federal, state, and local government and health agencies as to the status of COVID-19. Click here for further guidance from the CDC.
