As Arkansas learns of its first presumptive cases of COVID-19, it is inevitable that the virus will affect day-to-day activities. The extent and duration of that impact remain to be seen. In light of these unusual circumstances, the best mantra we could advise your business is to expect the best but prepare for the worst.
Preparation will look different for every business, but we encourage all our clients to consider the following:
Plan and Communicate
The Centers for Disease Control recommends employers identify a pandemic coordinator and/or team with defined roles and responsibilities for preparedness and response planning. This team should include staff with expertise in equal opportunity laws.
Remember, the ADA prohibits an employer from making disability-related inquiries and requiring medical examinations of employees unless they are job-related and consistent with business necessity.
For example, asking an employee whether his immune system is compromised would be a disability-related inquiry since a weak or compromised immune system is closely associated with conditions such as cancer or HIV/AIDS. Asking employees about signs and symptoms of COVID-19, or possible exposure to the virus, is not likely to elicit information about a disability, and is therefore permissible.
Employers may place employees on leave if the employee poses a direct health or safety threat to the workforce by virtue of contracting or coming into contact with coronavirus.
A direct threat means “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.”
Assessments about whether an employee poses a direct threat must be based on objective, factual information rather than subjective perceptions or irrational fears. Employers should pay close attention to CDC recommendations in assessing whether an employee poses a direct threat.
If employees self-report that they have a disability putting them at high risk for complications from COVID-19, employers must consider reasonable accommodations for these employees just as they would under any other circumstance. As discussed below, flexible leave policies are likely a reasonable accommodation employers should consider.
In the event of office closures, employers should also continue providing the same reasonable accommodations at telework sites as are available at the workplace. For example, if a vision-impaired employee requires a certain type of screen reader for her office computer, the employer must provide the employee with a screen reader to permit the employee to telework.
Public health officials are encouraging employers to adopt flexible leave policies for those who have contracted or been exposed to the virus. This is to allow for “social distancing” to help prevent further spread of the virus. Companies such as Walmart Inc. have implemented emergency leave policies.
Walmart’s policy allows employees to stay home if they are unable to work or are uncomfortable at work, and it waives Walmart’s usual attendance occurrence policy at least through the end of April. Further, the policy provides two weeks of paid leave for people who are required to quarantine by a government agency or by Walmart. Many companies have also taken measures to make telework available for more employees in anticipation of potential office closures. These are just some of the measures you may consider as you determine the best way to prepare your company.
Employers may also have to be more flexible in their requirements to provide a doctor’s note for sick leave. It may become difficult for employees to access medical providers if medical facilities become extremely busy. Thus, employers may consider accepting other forms of documentation apart from a signed doctor’s note. Employers should still consider the risk to other employees before allowing employees who have been diagnosed with coronavirus to return to work.
Covered employees may also request Family Medical Leave Act leave if they contract coronavirus or need to care for a family member who has. While FMLA leave generally requires a doctor’s certification, employers are free to waive the documentation requirement if they understand the employee has a serious health condition within the meaning of the FMLA. Coronavirus likely qualifies as a “serious health condition” under the FMLA. Employers should continue to issue their usual FMLA notices including the notice of eligibility and rights and responsibilities and designation notice.
Employers should also consider modifying or limiting business travel plans, particularly to affected areas. Most large U.S.-based technology companies have taken measures to curb or prohibit employee travel. Google has now halted all international travel by employees after initially only limiting travel to certain countries. Employers should closely monitor the spread of the virus and adjust any business-related travel plans accordingly.
OSHA standards require employers to assess recognized hazards to which workers may be exposed. In assessing potential hazards, employers should consider whether workers may encounter someone infected with COVID-19 in the course of their duties. Employers should also determine if workers could be exposed to environments or materials (such as laboratory samples or waste) contaminated with the virus. Identifying hazards may include identifying individual workers who have signs, symptoms, and/or a history of travel to COVID-19-affected areas that indicate potential exposure or infection.
Employers should consider additional cleaning and sanitation protocols to reduce exposure to potential hazards, particularly for employees who use personal protective equipment (PPE).
OSHA has also advised that COVID-19 is a recordable illness when a worker is infected on the job. Thus, employers must follow OSHA’s injury and illness record-keeping and reporting requirements.
Employers should use already-established wellness programs to educate employees about hygiene and COVID-19 prevention. This may include lunch-and-learn sessions, posters and e-mail campaigns. In particular, wellness education should emphasize changing the way people greet one another to decrease hand-to-hand contact.
The CDC should be your main source of information. You should visit its site regularly for updated information. Go to Coronavirus.gov. The EEOC and OSHA have also issued guidance regarding the impact of COVID-19. Above all, stay informed, don’t panic, use the common-sense precautions listed above and keep your employees safe and informed.
Allison Pearson is an associate in the Labor and Employment Practice Group at Friday Eldredge & Clark. She advises employers in labor and employment laws including compliance with Title VII of the Civil Rights Act of 1964, the Family Medical Leave Act, the Americans with Disabilities Act, the Fair Labor Standards Act, the National Labor Relations Act and the Occupational Safety and Health Act.