How Employers Should Address the Workplace Impact of COVID-19

With the number of coronavirus, or COVID-19, cases on the rise, employers are preparing to address a host of workplace issues, ranging from exposure risks to absenteeism to disability or national origin discrimination. Now is the time to prepare and to educate workers and managers about COVID-19 and how to respond to these issues.

According to health professionals, COVID-19 spreads between people who are in close contact and through respiratory droplets produced by an infected person’s coughs and sneezes. A person who is sick with COVID-19 can spread the illness to others, in some cases without showing any symptoms.

While the immediate risk of contracting COVID-19 in most workplaces remains low, many federal agencies, including the U.S. Centers for Disease Control and Prevention (CDC), have issued specific guidance for employers to respond to the disease. The guidance emphasizes preventative measures employers can institute to limit exposure to the virus and curb transmission in the workplace.

CDC recommends that employers actively encourage sick employees and those experiencing virus symptoms to stay home and not return to work until they are symptom-free. Nonessential travel to areas of high outbreak is strongly discouraged. CDC also recommends employers promote everyday preventative actions, such as washing hands for 20 seconds and using alcohol-based hand sanitizers when soap and water are not available, among other measures.

Even if COVID-19 has not arrived in your community, employers should develop response plans to prevent the spread of the virus, protect their employees and ensure the continuity of their businesses. The response plan should provide proactive and clear guidance to employees consistent with applicable employment laws and regulations.

For instance, if an employee is confirmed to have COVID-19, the employer should be prepared to address the possible work-related exposure and health risk to other employees. The employer is allowed to notify fellow employees of their possible exposure to the virus in the workplace, while maintaining confidentiality as required by the Americans with Disabilities Act (ADA).

Employees who have been exposed to the virus, are suspected of having the virus, or are infected with the virus may be subject to voluntary or mandatory quarantine programs by local and state authorities. Quarantines of employees and family members may implicate the Family and Medical Leave Act (FMLA), the ADA, and a patchwork of state leave and disability laws. In addition, a minority of states have laws that specifically address job protection rights for quarantined employees.

Employers should prepare for a scenario of increased employee absenteeism if the virus continues to spread. Under the FMLA, COVID-19 could be considered a “serious health condition,” triggering the use of FMLA leave for the employee’s illness or to care for qualifying family members with the illness. On the other hand, it is not entirely clear that COVID-19 infection will constitute an ADA-qualifying disability, as the answer may turn on whether the individual is substantially limited in a major life activity (e.g., breathing) for more than a short duration. The EEOC is referring employers to its Pandemic Preparedness in the Workplace Guidance issued in 2009, for further information about the ADA.

The Occupational Safety and Health Administration (OSHA) also has issued guidance on COVID-19. While there is no specific OSHA standard covering COVID-19, various OSHA standards may be implicated, including OSHA’s personal protective equipment rules, and the general duty clause under which employers are required to furnish a workplace free from recognized hazards. OSHA advises that employers should adapt infection control strategies based on a hazard assessment of their workplace, with specific reference to the CDC’s guidelines.

There also are national origin discrimination issues implicated by COVID-19, particularly given its origins in China. As the CDC cautioned: “Do not show prejudice to people of Asian descent, because of fear of this new virus. Do not assume that someone of Asian descent is more likely to have 2019-nCoV.”

Ballard Spahr’s Labor & Employment Group will soon issue a comprehensive FAQ on employment issues related to COVID-19 in the workplace.

In addition, Ballard Spahr has an inter-disciplinary team of lawyers ready to address your COVID-19 issues from different legal perspectives, including health care, insurance, cybersecurity, and government relations. Shortly we will be launching a comprehensive COVID-19 dashboard, which will serve as your one-shop stop for our guidance and advice on these issues, as well as governmental resources.

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This alert is a periodic publication of Ballard Spahr LLP and is intended to notify recipients of new developments in the law. It should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own attorney concerning your situation and specific legal questions you have.