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What direction/information should you disseminate to employees?
Many employees, especially those who are at worksites that put them in contact with others, are understandably on edge about possible exposure to the virus through their work contacts. Employers have a responsibility to take precautions regarding employee safety and to be prepared for possible incidents of virus exposure. Employers should reassure employees that they are addressing the issue in a proactive manner to prevent unnecessary angst and fear. The first step towards such reassurance is clear and accurate communication. Employers should arm themselves with facts and discourage the dissemination of rumor and speculation. Covid-19 is an infection that results in respiratory illness with symptoms that include fever, cough and difficulty breathing. According to the CDC, an infected person’s symptoms may not appear until up to 14 days after exposure to the virus, which explains the 14-day quarantine periods for those exposed or potentially exposed. A number of helpful resources exist to inform employers, and to help them navigate these issues.
- The CDC has issued facts and guidance based on up-to-date information and to dispel falsehoods.
- The CDC has also issued its Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19), February 2020, which contains helpful, practical information for employers in addressing these concerns.
- In addition, the U.S. Department of Labor has issued its OSHA standards, directives, and other related information that can apply to worker exposure to this virus.
- Workplace posters and fact sheets related to proper hygiene and precautions for employees are also available for download.
- In accordance with the above information sources, employers should provide clear direction to employees as follows:
- Employees should stay home if they feel symptoms (e.g., fever, cough, difficulty breathing, respiratory/cold symptoms)
- Employees should practice elevated hygiene both at work and at home (e.g., handwashing, respiratory etiquette and repeated cleansing of work areas)
- Employees should bring concerns/questions to management/HR
If any employees are actually or potentially exposed to the virus, rumors and fear can spread quickly. It is important for employers to remain calm and maintain empathy
What planning measures should employers take?
Preparedness is key for addressing this issue in an orderly and effective manner. In order to be fully prepared, employers should devise a plan that address their specific work conditions, employee populations, and business demands. In implementing a plan, employers should consider the following:
- Extra measures to keep the workplace clean and disinfected, including providing employees with appropriate supplies for their individual work areas;
- Allowing employees to work from home and flexible schedules;
- Isolating individuals with possible or actual exposure from the workplace (including employees, customers or anyone else who may be at the workplace);
- Limiting or eliminating work-related travel, especially involving mass transit;
- Planning for reduced productivity and staffing, and possible business interruption;
- Other logistical issues related to a dispersed workforce, such as managing workflow, establishing physical and technical support for alternative working arrangements such as teleconferencing capabilities, providing the necessary supplies and information/data for employees to be able to work remotely, maintaining communications with employees and customer/public relations
How should employers respond to possible or actual employee COVID-19 exposure?
If an employer learns that an employee (or anyone else who has been at the work premises, such as a customer or vendor) has either a confirmed or unconfirmed, or suspected case of Coronavirus infection, the employer should take all of the reasonable precautionary measures, such as sending home all employees who worked in close proximity with that individual for at least 14 days. Confirming which employees should be sent home will entail some investigation by the employer. If the employee came into close contact with third parties, those individuals should also be notified of the potential exposure. If any employees have returned from traveling outside the country within 14 days, the employer should evaluate where the travel occurred and consider whether to impose a waiting period of up to 14 days before the employee may return to work. The employer should notify other employees that such measures were taken in an abundance of caution and invite employees to bring any further questions/concerns designated Company individuals, such as Human Resources. The employer should also take measures to ensure that all potentially affected workplace areas are thoroughly disinfected. If an employee exhibits any symptoms of the illness (e.g., fever, difficulty breathing), the employer can dismiss them from work for the 14-day period and advise them that they should be medically evaluated.
Other HR and Legal Issues to Consider
- Paid sick leave — Employers should review their sick leave policies and practices. Remember that permissible purposes for sick leave include the illness of employees’ family members or for preventative medical care such as physicals or check-ups.
- Potential discrimination and impermissible inquiries
- Disability laws — Unless there is an additional condition that affects the employee in conjunction with the virus, it is doubtful that the virus itself would constitute a covered disability under the ADA or FEHA for purposes of discrimination or reasonable accommodation obligations, however employers always need to be careful about discrimination based on perceived disabilities. The EEOC previously issued guidance and FAQs related to employer response to pandemic situations in relation to the Americans with Disabilities Act, which is helpful for this current situation. The EEOC is expected to release further information specifically addressing the COVID-19 virus in the near future. The California EDD also released a statement confirming that if an employee is unable to work due to having or being exposed to the Coronavirus, the employee could be eligible for disability insurance benefits.
- National origin/ethnicity — Although it is permissible for employers to inquire where employees have recently traveled to evaluate possible exposure to the virus, this should not be confused with impermissible inquiries regarding an employee’s national origin or ethnicity. Employers should also be careful not to make assumptions or engage in speculation about employee’s risk level for exposure to the virus merely because of the employee’s race, national origin, ethnicity or other protected characteristics.
- FMLA/CFRA and other medical leaves — Employers should review their disability leave policies and plan for how such policies would apply to infected employees. If the effect of the virus is not strong enough to cause a serious medical condition for the employee as defined under the FMLA and CFRA laws, the protected leave obligations may not apply. However, if a medical professional has determined the employee is taking care of a family member who has been exposed to or has COVID-19, the employee may be eligible for FMLA and/or CFRA leave.
- Unemployment Insurance — The EDD issued a statement confirming that If an employee’s hours (and resulting income) are reduced due to the slowing or cessation of business caused by the Coronavirus, the employee may be eligible for unemployment insurance benefits. Employees who are affected in this manner should be advised to apply for such benefits.
- Retaliation — If an employee reports or complains about an employer’s handling of workplace safety or illness issues, the employer may not retaliate against the employee for doing so. Both OSHA regulations and whistleblower statutes prohibit such actions.
- Privacy — Employers should remain sensitive to the privacy rights of employees, especially medical issues. Although the public health interests involved in a pandemic issue may outweigh an employee’s privacy rights, employers should never disclose more private information than necessary, even in an urgent situation. Therefore, if an employee is infected or exposed to the virus, the employer should not disclose any information regarding that employee’s condition beyond what is necessary to protect the safety and well-being of the other employees, and to the extent possible, the identity of an infected or potentially infected employee should be kept private.
Employers should check for updates from the CDC and other agencies regarding response and recommendations the event of an infected employee. Employment and other specialized counsel should also be consulted as needed.As always, Scali Rasmussen is prepared to review your policies for compliance. If you would like more information on how we can help your HR department, please contact us.