As an employer, you have undoubtedly thought about the effects of the novel coronavirus (COVID-19) at your workplace. It is likely that you have begun drafting, or have even implemented, an action plan addressing the developing concerns. Wherever your company is on the spectrum of addressing the issue, below are some highlighted areas to consider as it relates to an employer’s legal duties and responsibilities, as well as other guiding legal principles.
The General Duty Clause of the Occupational Safety and Health Act of 1970, Section 5(a)(1), requires employers to provide “employment and a place of employment, which are free from recognized hazards that are causing or likely to cause death or serious physical harm.” OSHA has provided a webpage with information dedicated to the evolving coronavirus here.
As employers consider this duty and commitments to their employees, companies will have varying needs based upon the type and nature of the business. All employers, however, are advised to develop a written plan to address the coronavirus and to effectively communicate the plan to their employees. In developing the plan, employers should consider the following elements:
-
Designate a Company Representative(s) to Address the Changing Landscape. Employers should have a designated person or team of individuals to monitor the coronavirus, including affected regions, and to adjust their plan and strategy based upon accurate and updated factual information. This would include monitoring new releases from the Center for Disease Control (CDC) and other health and governmental organizations.
-
Basic Education on Hygiene and Health Information. Employers should inform and educate employees on basic hygiene standards to prevent the spread of the virus. The CDC has issued a guidance discussing the coronavirus with a number of recommendations including communications to employees, routine office cleaning, and others. Employers may consider increased cleaning schedules and other measures such as providing hand sanitizer at all building entrances, and in lunchrooms.
-
Address Travel Limitations. Employers should limit all non-essential travel to affected regions and should stay abreast of CDC-issued travel health notices. Employers should also discuss minimizing other work-related travel based upon business need and risk factors as updated by health and governmental organizations.
-
Develop Rules for Employee Reporting. Employers should set standards for what types of information its employees are required to communicate, and how such information should be communicated. For example, requiring employees to report any potential exposure or travel to certain affected regions. Attention needs to be paid to employee privacy concerns, and designated individuals at the company should be advised of what information can be collected and the privacy rights of the employees. This includes an action plan for informing other employees in the event a co-worker is confirmed to have the coronavirus.
-
Define Standards for When Employees are Required to Stay Home. Employers should define standards for what circumstances will warrant requiring an employee to stay home or sending them home from work. These standards need to be developed in response to accurate information and actual risk.
-
Review Your Leave Policies and Pay Policies. Employers should review their existing PTO/vacation/sick leave policies and consider whether additional or supplemental leave is something that should be addressed. Additionally, employers need know what requirements they have to pay employees during any voluntary and/or forced leave. Oftentimes, there is not a requirement to pay an involuntary leave of absence, however, this will vary by business depending on factors such as written employment agreements, leave policies, collective bargaining agreements, exempt versus non-exempt status, and other criteria. Employers also needs to be prepared address the FMLA implications (if employers meet the FMLA thresholds), and should be familiar with their disability policies to advise employees as to available benefits.
-
Plan to Utilize Technology. Employers should consider work-from-home options where possible, or other strategies that limit or reduce direct contact, including teleconferencing, videoconferencing or other measures. Employers should visit with their IT support to ensure their systems can adequately handle an increased number of remote users, if applicable. Employers should also review their work from home policies to adequately address productivity expectations, accurate timekeeping, and other key areas. Written work from home policies should be adopted or revised where necessary.
All employers’ plans should be reviewed for legal compliance, being mindful of potential discriminatory effects, compliance with state and federal laws, including the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), state and local sick leave laws, the Fair Labor Standards Act (FLSA) and others.
If you have questions or concerns about this subject, or would like to discuss ways to develop or evaluate your company’s response plan, please contact Kristy Fahland at kfahland@messerlikramer.com.