The novel Coronavirus (COVID-19) has caused global economic disruptions and public reactions due to outbreaks of the virus, which causes mild to severe respiratory illness. The Centers for Disease Control and Prevention (CDC) has reported that new cases are being confirmed within the United States, with community transmission of the virus now occurring. The CDC reports that the virus is not currently spreading widely in the United States, but the situation is rapidly evolving.

Recommendations for Industry

Employers should assess their workplace needs and develop a plan of action in the event of pandemic illness. The response to COVID-19 will vary by industry, location and the extent to which employees are involved in international travel. Employers in the health care industry, including those involved in the care of the elderly or disabled, will need to exercise heightened precautions. Businesses with employees who travel internationally will need to have a plan in place with respect to employees who may have been exposed to the virus while abroad.

The Occupational Safety and Health Administration (OSHA), the federal agency responsible for enforcing the right of employees to a safe workplace, has published industry-specific interim guidance. OSHA has identified workers in certain industries as having increased exposure risk, including: health care, death-care (coroners, medical examiners, funeral directors, etc.), laboratories, airline operators, solid waste and wastewater management, border protection and industries involving travel to areas where the virus is spreading. Employers with workers in impacted industries should consult OSHA's interim guidelines and comply with recommended practices. The CDC has also published a generally applicable guidance—"Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19)." The CDC currently recommends that employers take the following measures:

Actively encourage sick employees to stay home:

• Employees with symptoms of acute respiratory illness are recommended to stay home until they are free of fever and other symptoms for at least 24 hours.
• Do not require a health care provider's note for employees who are sick with acute respiratory illness to validate the illness or to return to work.
• Maintain flexible policies that permit employees to stay home to care for a sick family member.
• Separate employees who appear to have acute respiratory illness symptoms (cough, shortness of breath) and send them home immediately.

Communicate with employees:

• Place posters encouraging employees to stay home when sick, practice cough and sneeze etiquette and hand hygiene in prominent locations in the workplace.
• Instruct employees to clean their hands often with soap and water or with an alcohol-based hand sanitizer.
• Perform routine environmental cleaning, including cleaning all frequently touched surfaces in the workplace such as workstations, countertops and doorknobs; provide disposable wipes so that employees can wipe down desks and workstations before use.
• Employees who are planning travel should check the CDC's Travel Health Notices for up-to-date guidance and recommendations.
• Employees who have symptoms of acute respiratory illness should not travel.
• Employees who become sick while travelling should notify their supervisor and promptly call a health care provider if needed.

Some states and localities within the United States are currently addressing confirmed cases of COVID-19 within their communities. In addition to consulting with CDC interim guidance, businesses with operations in impacted communities should consult with their state or local department of health for additional resources and guidance specific to their locality.

Employment Law Issues

Employers' response to the COVID-19 outbreak will intersect with a variety of employment laws, including the Family and Medical Leave Act (FMLA), state and local paid leave laws, the Fair Labor Standards Act (FLSA), the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act.

FMLA

Employers who are covered by the FMLA and local equivalents will need to make sure that their FMLA policies, procedures and forms are up to date. Eligible employees who are sick with COVID-19 may request FMLA leave, which may be a covered condition, and employers should provide the appropriate certification forms to employees who are out sick.

Local Sick Leave Laws and Employer Sick Leave Policies

In addition to FMLA, many jurisdictions have local paid sick leave laws that apply to both full- and part-time employees; most employers have sick leave or paid time off policies. Employers should consider temporarily relaxing these policies for employees who have exhausted their leave entitlement, but who are out sick. Employers should convey to the workforce that relaxation of attendance policies is limited to the duration of the emergency.

FLSA

Employers must also be mindful of the federal and state wage-and-hour laws regarding compensation of employees who miss work due to illness or business disruption. Nonexempt employees who have exhausted all available sick leave under local law or employee policy need not be compensated for time missed due to illness. Exempt employees must be paid their full salary for any workweek in which they work, subject to certain limited exceptions. The FLSA permits deductions from salary when an exempt employee is absent from work for one or more full days due to sickness or disability, if the deductions are made in accordance with a bona fide sick leave policy. Exempt employees need not be paid for any workweek in which they perform no work. It is highly recommended that applicable state wage payment laws also be reviewed as well.

ADA

• Disability-Related Inquiries and Medical Examinations. The ADA prohibits employers from making disability-related inquiries and conducting medical examinations of current employees unless they are job-related and consistent with business necessity. The Equal Employment Opportunity Commission published a guidance addressing pandemic illness—Pandemic Preparedness in the Workplace and the Americans with Disabilities Act. This guidance, which was published during the H1N1 virus of 2009, addresses the circumstances in which a pandemic virus could qualify as a "direct threat" for purposes of determining whether an employer may make disability-related inquires or medical examinations.
• Confidentiality. Medical information concerning employees must be kept confidential and on a need-to-know basis. In the case of a confirmed case of COVID-19 within a workplace, the CDC recommends that employers inform co-employees of their possible exposure, without identifying the individual who is ill. This aspect may be critical as employees who are subject to exposure may expose family members who are greatly at risk, such as elderly parents.
• Reasonable Accommodations. Additionally, some employees may have an underlying medical condition, such as a compromised immune system, asthma or heart disease that may make them more vulnerable. Employees may make requests for reasonable accommodation, such as working from home, or being excused from business travel, which should be considered on a case-by-case basis and in the context of an interactive process.

Title VII

According to the CDC, at this time most people in the United States have little immediate risk of exposure to COVID-19. This, however, may change in the near future according to noted epidemiologists who have studied its transmission characteristics. Despite this possibility, however, employers should guard against any unwarranted assumptions or stereotypes in the workplace that could run afoul of the employment discrimination laws, including stigma and discrimination against Chinese-Americans and other Asian-Americans. The CDC has published information on its website with information specific to minimizing stigma and discrimination.

Remote/Flexible Work Arrangements

Some employers may encourage employees to work from home due to illness. It is best to have a telecommuting policy in place, which addresses issues such as the recording of time worked by nonexempt employees under such circumstances, in compliance with the FLSA and state law, as well as designating which positions are eligible to work from home. Employers who do not have telecommuting policies are encouraged to consider making exceptions for employees who are ill, caring for ill family members, or who have been exposed to COVID-19. Flexible work arrangements are also encouraged for employees who must care for children in the event of school closures. Additionally, technology systems may be taxed by significant increases in remote usage. It would make sense to address this possibility early on with IT experts to confirm that the employer's system can handle such increased usage.

Summary

Employers should take steps now to ensure that their workplace is adequately prepared and protected in the event of an outbreak of COVID-19 within the communities where they conduct operations, while ensuring compliance with employment laws.

Tanya A. Salgado is counsel in the labor and employment law group at White and Williams in the firm's Philadelphia office. Her practice includes employment law, education law and commercial litigation. 

Nancy Conrad serves as managing partner of the firm's Lehigh Valley office and chair of the education group. She represents businesses, educational institutions and nonprofit organizations in all aspects of workplace disputes.