Coronavirus and Other Health Scares: Is Your Company Prepared?
No matter where you turn, it seems impossible to avoid hearing about the (novel) coronavirus (2019-nCoV). While there have not been many confirmed cases in the United States, employers should take the opportunity to learn how to plan for such outbreaks and address employee concerns while still complying with employment laws.
Stay Informed, Have a Plan, and Communicate Effectively
Some of the most effective steps employers can take are the simplest ones. There is a lot of information (and misinformation) going around about the coronavirus. At times, it can seem overwhelming. The best place to start is with the Centers for Disease Control and Prevention. For the coronavirus outbreak, the CDC has a dedicated web page providing updated information about the virus’s spread, what steps the government has taken, prevention tips, and travel information. The World Health Organization has a similarly informative web page. Both organizations typically provide dedicated web pages for most major outbreaks.
Next, if an employer does not have a pandemic plan (either in their handbook or elsewhere), they should at a minimum develop an internal strategy for addressing the topics outlined in the OSHA Fact Sheet, which are discussed below.
Lastly, as a best practice and to the extent possible, employers should dedicate a single person (or a small team depending on the company’s size) to communicate with employees to minimize the spread of misinformation about the outbreak or miscommunication about an employer’s policies.
OSHA Requires Employers to Provide Safe Workplaces
When dealing with an outbreak, employers should not overlook their responsibilities under state and federal occupational safety health laws. Under the federal act, employers have a responsibility to provide a workplace free from serious recognized hazards. Such “hazards” include pandemics or serious virus and disease outbreaks. The Occupational Safety Health Administration issued a fact sheet outlining specific topics employers should ensure that their employees understand, which include:
- The differences between seasonal epidemics and worldwide pandemic disease outbreaks;
- Which job activities may put employees at risk for exposure to sources of infection;
- What options may be available for working remotely, or utilizing an employer’s flexible leave policy when sick;
- Social distancing strategies, including avoiding close physical contact and large gatherings of people;
- Good hygiene and appropriate disinfection;
- What personal protective equipment (PPE) is available, and how to wear, use, clean, and store it appropriately;
- What medical services (e.g., vaccination, post-exposure medication) may be available; and
- How supervisors will provide updated pandemic related communications, and where employees should direct their questions.
Additionally, employers should consider delaying non-essential travel to potentially impacted zones. As noted, if you do not have a pandemic plan in place, this fact sheet serves as a good starting point to begin thinking about—and developing—your company’s response to the types of questions and concerns you are likely to encounter.
Complying with the Americans With Disabilities Act
The ADA prevents discrimination against individuals who have disabilities, or who may be regarded as having disabilities. There are plausible arguments that a virus like the coronavirus meets the ADA’s definition of a “disability.” However, those arguments are weakened by the virus’s potentially short duration. Nonetheless, employers can walk themselves into a potential “regarded as” disability claim when attempting to investigate or accommodate a potentially impacted employee. Employers should carefully review the “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act” guidance issued by the EEOC during the 2009 H1N1 outbreak. While dealing with a different type of virus, the EEOC’s guidance remains helpful here. Importantly, sending employees home who exhibit symptoms during a pandemic (either through paid leave or asking them to work from home for a period of time) will likely not violate the ADA, and such an action might be permitted under the ADA if the illness were serious enough to pose a “direct threat” to others (i.e., a significant risk of substantial harm even with reasonable accommodation). In such circumstances, employers may also ask employees to provide a note from their doctor attesting to their ability to return to work, and that their return would not pose a direct threat of infection to other employees.
Complying with the Family Medical Leave Act
The FMLA is also relevant to pandemic preparation. Coronavirus, or other serious viruses, may qualify under the FMLA as “a serious health condition” entitling an employee to take medical leave. Employees may also be eligible for FMLA leave if they are taking time off to verify whether they have a serious health condition or take care of an impacted family member.
- Stay informed from reliable and reputable sources, like the U.S. government or the World Health Organization.
- Develop a pandemic preparation plan which should outline how the company would respond to and handle potentially impacted employees and communicate that plan effectively and consistently to employees.
- Before you act, make sure your proposed plan complies with the array of applicable state and federal employment laws.
- Encourage employees to maintain good practices, such as regular handwashing, use of hand sanitizers, coughing and sneezing etiquette, and proper tissue usage and disposal.
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Window on Washington - May 17, 2021, Vol. 5, Issue 20
The view from our DC office