Although not yet (and hopefully never) classified as a pandemic, the novel coronavirus (COVID-19) is already impacting U.S. companies in a variety of ways, including from an HR perspective. Although as of the date of this posting 90 percent of reported cases of coronavirus are in China, all employers, regardless of size or location, must be ready to respond to employee questions regarding the virus and to take appropriate measures if the virus continues to spread. In this post, we highlight five things your company can do now to prepare.
- Communicate with Employees
This is not the time to remain silent. Instead, now is the time to start regular communications with your employees to help alleviate their concerns and proactively address their questions. Consider communicating with your employees about the following topics:
- Proactive measures your company has initiated to protect employees in the event of a pandemic.
- Tips for remaining healthy in the workplace and actions your company has taken to keep the workspace hygienic. But be careful that such well-meaning medical tips do not cross the line into providing actual medical advice to individuals; leave that to health care professionals.
- Options for paid and unpaid leaves under applicable federal, state, and local laws, or company policies.
- Remote work opportunities for employees who exhibit symptoms of the virus or have had contact with someone who has been infected.
- Emergency closure procedures for offices and worksites.
- Travel modifications for employees with scheduled work-related travel.
- If your company elects to make available new or additional remote work or leave of absence options for employees affected by the virus, ensure that all communications expressly reference the uniqueness of the situation (to head off future claims that may arise under different circumstances).
- Prepare an Emergency Response Plan
If your company doesn’t already have an emergency response plan, now is a great time to prepare one. Your plan should not only address how the company will respond to viruses, but also how it will respond to other possible emergencies and natural disasters. You should develop the plan with input from other relevant stakeholders in your organization. From an HR perspective, the plan might address the following topics:
- The names, titles, and contact information for the people responsible for administering the plan.
- Methods for reporting illnesses or other emergencies to the company.
- Evacuation protocols and assignment of critical job duties.
- Employee roles and responsibilities during an emergency.
- Benefits and payroll continuation.
- Understand OSHA Requirements
Although there is no Occupational Safety and Health Act (OSHA) standard or regulation that specifically addresses the coronavirus, OSHA’s general duty clause applies to most employers and OSHA’s personal protective equipment standards may apply to employers in certain industries.
OSHA’s general duty clause requires that an employer “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” In the case of a pandemic, the Occupational Safety and Health Administration could find a violation of the act if the following conditions are present:
- The employer failed to keep the workplace free from the virus.
- The virus is recognized as a hazard by the employer or it is generally recognized in the industry as a hazard.
- The virus causes or is likely to cause death or serious physical harm.
- The employer had a feasible means to abate the hazard, but it was not utilized.
Depending on the industry in which your business operates, employers may also have an obligation to provide employees with appropriate protective equipment should the virus permeate the workplace. For example, gloves, eye protection, and respiratory protection may be necessary for employers in the healthcare industry. For more information, you can find guidance from OSHA here.
- Don’t Forget Your Duty to Bargain Under the NLRA
If your employees are represented by a labor union, you may have an obligation to bargain with the union over any changes, or the effects of those changes, if you need to alter the terms and conditions of employment as a result of the virus. You should carefully examine your collective bargaining agreements, and consult with legal counsel to determine whether bargaining is required.
- Know Your Obligations Under the ADA, FMLA, and Local Leave Laws
If your company is subject to the FMLA, any eligible employees infected with the virus will likely be entitled to 12 weeks of unpaid leave to recover. That employee may also be entitled to protections under the Americans with Disabilities Act (ADA), which may include entitlement to additional unpaid leave or other workplace accommodations.
Your ability to obtain medical information from sick employees may also be limited by the ADA, which prohibits employers from making a disability-related inquiry and requiring a medical examination unless the inquiry and/or examination is job-related and consistent with business necessity. If an individual poses as “direct threat” to the company, because of a “significant risk of substantial harm to the health or safety of the individual or others,” a medical inquiry may be permissible. The EEOC, however, has stated that assessments of whether an employee is considered to be a direct threat “must be based on objective, factual information” and not rumor or fear. More information from the EEOC on the duty to accommodate employees in a pandemic can be found here.
Schiff Hardin is closely following developments on the coronavirus.