The Centers for Disease Control and Prevention (CDC) has verified more than 100 cases of the Coronavirus Disease 2019 (COVID-19) in the United States, including 6 deaths and illnesses in 15 states such as Washington, Oregon, Utah, Arizona, Texas and California.
For employers, the threat of a public health crisis is alarming because employees are often one of their most important assets. A threat to employees impacts every other aspect of business. When illness or absentee rates among employees increase, or if social distancing strategies are implemented, how does an employer ensure it can continue to manufacture the widgets, get a product downstream in the supply chain or greet its customers when they come in the door?
What can employers do to prepare?
First, recognize your role. OSHA’s general duty clause requires that an employer provide a place of employment free from recognized hazards likely to cause death or serious physical harm. OSHA states that the general duty clause may apply to preventing occupational exposure to COVID-19. The clause does not create strict liability for anyone who falls ill at work, but a general duty to provide safety from a specific harm where an employer knew or should have known of a hazard. An employer should use feasible and useful methods to correct a hazard if such a method exists. So employers always have a role in employee safety, whether or not it has yet been specifically applied to COVID-19.
But employers have a broader role to play. Employers are keenly aware that healthy employees are productive employees, and that this outbreak could have implications for business. But employers should recognize that as this public health event unfolds, employers will be on the front lines to either help or hurt the efforts to slow the spread of illness, while preparing for a global pandemic. In today’s world, the workplace is one of the most common places where people interact. In the event of a public health crisis, employers have a unique opportunity to be a key part of implementing strategies to help combat the spread of a virus.
Second, take care of your business operations. Do you have a business continuity and recovery plan in place? If so, have you read it, tested it and communicated its contents to employees?
During an emergency, businesses are expected to account for employee safety and stabilize incidents via emergency plans and protocols. Immediately after the event, the goal is to return to normal operations as soon as possible. If the spread of COVID-19 proves to be an enduring public health emergency, this may prove difficult.
Quite often, business recovery plans are focused on loss of a critical facility or critical input to production. When access to human capital is the continuity challenge, there are different considerations for keeping your business functioning. Keeping your employees safe and your business productive may require creative solutions. Ensuring your HR policies can accommodate a distributed (i.e., working from home) workforce is critical, as is assessing the technical feasibility of proposed social distancing strategies. Put simply, what essential business functions can or cannot be performed from home? Do employees have the technical capacity, such as viable equipment or software, to access the information or other systems they need to continue being productive? If tele-work is not available for some employees, would shift work be an option to meet the objective of social distancing? Perhaps your business requires both options for different categories of employees. Similarly, businesses should be sharing continuity plans, processes and key points of contact with distribution chains, contractors and those businesses on which you regularly depend.
Third, make sure you comply with the law and protect the company from liability. Start by looking at your leave policies: are they flexible enough to withstand a public health crisis? Leave policies should be consistently and uniformly followed, but flexible enough to comply with local or national public health directives.
For example, the CDC advises that employees should be encouraged to stay home if they are sick, or if taking care of a sick family member, and for 24 hours after they are free from any symptoms or signs of illness. If your current policy requires a doctor’s note to verify an illness, recognize that this is too restrictive to comply with public health recommendations. If COVID-19 hits with a vengeance, healthcare providers will be far too overworked to respond to this type of request. What do your policies say about absences once sick leave is expended? Are your policies flexible enough to withstand social distancing orders or quarantine orders for weeks on end? Do your leave policies address whether sick leave may be taken to care for a family member? Consider school closures due to an outbreak – is your business prepared for heavy absenteeism due to childcare responsibilities or an employee’s lack of childcare? Companies are not statutorily required to permit time off for school closures, but employers should anticipate a rise in the number of employees who seek leave for this reason. Under the Family Medical Leave Act (FMLA) unpaid leave for employees and employees caring for family members infected with COVID-19 could rise to the level of a “serious health condition” under the statute. Requests for leave during this time should be handled with care, and penalties for employees not following leave policies should be examined in light of COVID-19.
The CDC also advises that employees should notify their supervisor if they have COVID-19 or if they have a family member who does. Risk assessments of exposure should be performed, and employers should inform other employees of their possible exposure. However, once an employer learns that someone has confirmed COVID-19, it must also continue to maintain that employee’s confidentiality as required by the Americans with Disabilities Act (ADA).
Of course, an employer should never make its own determination regarding risk based upon race or country of origin, which would run afoul of discrimination law. Nor should other employees be permitted to make such a determination. Disparaging comments regarding an employee’s national origin or race should continue to be dealt with appropriately.
Fourth, stay informed and follow published guidance from OSHA, the CDC, and state and local authorities. The CDC has published guidance for employers, which is continually updated. Similarly, OSHA’s website has a dedicated COVID-19 page, which confirms that although the common cold and flu are exempt from recording requirements, covered employers should record work-related incidents of COVID-19 on their OSHA log.
At present, the CDC provides employer guidance to advise employees traveling to China to consult the CDC website before travel and upon return; to perform routine environmental cleaning; to encourage cough and sneeze etiquette; and hand hygiene (those of us with children are all too familiar with these instructions); and to separate sick employees who become ill by physical separation and by sending them home immediately. Employers in certain industries, such as healthcare, are provided with more specific guidance.
Challenges for employers in dealing with a public health event such as COVID-19 cannot be eliminated, but proper planning may help mitigate some of its effects. Following guidance and protective strategies from public health officials, embracing flexible and adaptive HR practices and testing recovery and continuity plans will help prepare your business and your employees for health event scenarios.
Amy Lombardo is an experienced trial lawyer and a shareholder at Parsons Behle & Latimer. To contact her on this or other employment-related topics, call (208) 562-4900 or send an email to [email protected].