Are You Prepared for COVID-19?

Employers and employees are understandably concerned about COVID-19 (formerly known as the 2019 Novel Coronavirus or 2019-nCov).  While it is important to avoid overreacting or taking drastic measures, it is equally important to stay informed and be prepared.  Be sure the decisions you make consider not just health risks, but also employee morale, public relations, and the risk of claims under the Americans with Disabilities Act (“ADA”), Title VII, the Family Medical Leave Act, and other relevant laws.[1]

BACKGROUND

According to the Centers for Disease Control and Prevention (“CDC”), coronavirus disease 2019 (abbreviated “COVID-19”) is a respiratory disease caused by a novel (new) coronavirus that was first detected in Wuhan City, Hubei Province, China in December 2019.  The disease is caused by a virus that has been named SARS-CoV-2.  For more information about COVID-19, visit the CDC’s website.

As of March 2, 2020, there have been more than 88,500 confirmed cases of COVID-19 in 67 countries, and more than 3,000 people have died.  Currently, the United States has reported 16 confirmed COVID-19 cases, 27 presumptive positive cases (tested positive in a public health lab and are pending CDC confirmation), plus an additional 48 cases among people repatriated to the United States, which includes 45 from the Diamond Princess Cruise ship and three from Wuhan, China.  Six people have reportedly died in the United States (all in the state of Washington).  No cases have been reported in Hawaii, although two tourists who spent time on Maui and Oahu between January 28 and February 6 tested positive for COVID-19 upon returning to Japan.

On January 30, 2020, the World Health Organization (“WHO”) declared the outbreak a “public health emergency of international concern.”  On January 31, the U.S. Department of Health and Human Services declared a public health emergency for the United States to aid the nation’s healthcare community in responding to COVID-19.  As of February 28, the WHO increased the Global Risk Assessment Level to “Very High.”  Although the WHO has declined to describe this outbreak as a global pandemic, some experts believe it has reached that level, and certainly, it is not too early to get informed and prepared.

WHAT SHOULD EMPLOYERS DO?

Communicate

Ensure employees know you are looking out for their health and wellbeing.  To calm employee concerns, inform them that at present, there is no immediate health threat, but you are monitoring the situation.  To prevent the spread of panic or misinformation, provide factual information only from official sources such as the CDC, the World Health Organization (“WHO”), the Occupational Safety and Health Administration (“OSHA”), and the Hawaii State Department of Health (“HDOH”). 

Remind employees to:

  • review sick leave and PTO policies;
  • stay home if they are sick;
  • avoid contact with sick people;
  • avoid touching their eyes, nose and mouth with unwashed hands;
  • cover their coughs;
  • practice good handwashing technique;
  • clean and disinfect frequently touched objects and surfaces; and
  • get the flu vaccine – having fewer patients with flu-like symptoms makes it easier to identify those cases that could be COVID-19.

The CDC has various communication resources to provide information to your employees, including videos, posters, and handouts.

Handling Sick Employees

What can I do if an employee (who hasn’t traveled to an area with a travel advisory) comes to work with flu-like symptoms?  Can I send them home?  Whether you can legally order all employees who display flu-like symptoms to remain at home is not clear at the present time.  The CDC is recommending that employers actively encourage employees with symptoms of respiratory illness to remain at home until they are free of fever and other symptoms for at least 24 hours without the use of medication.

However, requiring employees to stay at home may result in a disability discrimination claim under state and federal disability law.  According to guidance issued by the EEOC in 2009 in relation to the swine flu pandemic, an employer may require employees who display flu-like symptoms to stay at home if the employee actually has a seasonal flu or cold because the seasonal flu or cold is not a disability.  An employee may claim, however, that they were discriminated against because they were “regarded as” being disabled, even if they were not in fact disabled.

The EEOC’s 2009 guidance indicates that an employer may be justified in requiring employees with flu-like symptoms to stay at home if a pandemic illness rises to the level of a “direct threat.”  At the present time, it does not appear that the CDC or governmental health authorities have concluded that COVID-19 is severe enough to pose a “direct threat.”  As a result, there may be some risk of a “regarded as” claim under the ADA or state law if you order an employee (who has not traveled to a restricted area) to stay home.  However, many legal observers believe that an employee would be unlikely to prevail on a “regarded as” claim, and therefore, you should weigh the need for safety precautions against the slight risk of liability.

Reconsider Business Travel

Below are the travel advisories issued by the U.S. Department of State and the CDC related to COVID-19 as of the writing of this article. 

China

Iran

Italy

South Korea

Japan

  • U.S. Department of State Level 2 advisory (Exercise Increased Caution)
  • CDC Level 2 travel alert (Practice Enhanced Precautions): Older adults and those with chronic medical conditions should consider postponing nonessential travel

Hong Kong

  • U.S. Department of State Level 2 advisory (Exercise Increased Caution)
  • CDC Level 1 travel watch (Practice Usual Precautions): The CDC does not recommend canceling or postponing travel to Hong Kong, but travelers should practice usual precautions

Mongolia

Macau

Employers should monitor travel advisories by the CDC and the U.S. Department of State concerning foreign travel, as alert levels continue to change and advisories continue to be issued for additional countries.

Under the Occupational Safety and Health Act, workers have a right to refuse to work under conditions that clearly present a risk of death or serious physical harm.  Whether foreign travel presents such a risk is currently unclear, but the situation is constantly evolving.  As a result, employers should consider eliminating non-essential foreign travel, particularly for those countries with travel advisories, and consider allowing employees to opt out of international business travel until the situation stabilizes.  Employers should explore alternative options such as video-conferencing.

Employees Returning from Affected Areas

Some companies are requiring employees returning from affected areas to work remotely for 14 days, and only return to work if they are symptom-free after that time.  Each situation should be analyzed on a case-by-case basis based on the most current guidance available at the time. 

On February 2, the Department of Homeland Security announced:

U.S. citizens who have been in Hubei province within 14 days of their return will be subject to up to 14 days of mandatory quarantine to ensure they are provided proper medical care and health screening.  U.S. citizens who have been in other areas of mainland China within 14 days of their return will undergo proactive entry health screening and up to 14 days of self-quarantine with health monitoring to ensure they have not contracted the virus and do not pose a public health risk.

This supports an employer’s imposition of 14 days of quarantine for employees returning from China (though currently not any other countries).  Because guidance is constantly being updated and every situation is different, employers should monitor the CDC and other official government websites for changing recommendations and developments, and consult with legal counsel or HR professionals before requiring employees to stay home.

If an employee is subject to quarantine and the nature of their job is such that they cannot work at home, you could require them to draw down any applicable paid leave.  Non-exempt employees need not be paid during a quarantine period if they are not working, but exempt salaried employees should be paid for any partial week absences that are not covered by paid leave.  Before classifying an absence as leave without pay, however, note that how you decide to handle quarantined employees will have an impact on employee morale.  Some companies are providing employees with (additional) paid leave for COVID-19-related absences such as mandatory quarantine periods.

Remote Work

What if employees who are not subject to quarantine are requesting to work from home?  The CDC has issued guidance, including a decision making flow chart, that may help determine how to respond.

According to current CDC guidance:

  • People with low-risk exposures to SARS-CoV-2 are not restricted from public places, including workplaces, as long as they remain asymptomatic.
    • Employers may choose to recommend that employees with low-risk exposures check their temperature to ensure they are still asymptomatic before arriving at the workplace.
  • Asymptomatic people with medium-risk exposures are recommended to avoid congregate settings, limit public activities, and practice social distancing.
    • Employers may consider on a case-by-case basis, after consultation with state or local public health authorities, whether asymptomatic employees with medium-risk exposures may be able to work onsite. These decisions should take into account whether individual employees’ work responsibilities and locations allow them to remain separate from others during the entire work day.  Asymptomatic employees with medium-risk exposures who are permitted to work onsite should not enter crowded workplace locations such as meeting spaces or cafeterias.

What if employees with little to no risk are requesting to work from home because they fear contracting the virus at work?  Employers should communicate to employees that based on current information from state and federal health authorities, there is no reasonable risk of harm in coming to work.  Currently, employers can deny a request based only on fear that is not supported by recommendations from public health authorities (which may change).  However, if the nature of the job is such that remote work is feasible, employers should consider allowing it, keeping in mind that granting a request to work from home now will result in requests from other similarly-situated employees.  Given the current trajectory of the outbreak, this may not be a bad thing.

If you have not already begun doing so, now is a good time to start evaluating the feasibility of remote work for as many positions as possible, developing guidelines for remote work, and modifying work procedures and practices in preparation for the possibility that this outbreak becomes a broader public health risk.

Medical Examinations

Review your company’s policies on medical examinations.  The ADA prohibits employers from making disability-related inquiries and requiring medical examinations (including temperature checks) unless job-related and consistent with business necessity.  Generally, this means that a medical examination may only be required of a current employee when the employer has a reasonable belief based on objective evidence that an employee’s ability to perform essential job functions will be impaired by a medical condition; or an employee will pose a direct threat due to a medical condition. 

Whether COVID-19 rises to the level of a direct threat will depend on the latest CDC and state or local public health assessments.  However, employees clearly displaying signs of illness can be asked to stay home.  In any event, all information about employees obtained through disability-related inquiries or medical examinations must be kept confidential.

Avoid Discrimination and Harassment

Be sure that all current and new policies are uniformly and consistently implemented and enforced and do not discriminate against individuals who are of a certain race or national origin, disabled, or perceived as disabled.  You should also ensure that employees are not discriminating against co-workers, customers, or vendors based on ancestry, nationality, race, or perceived disability.  Displays of discriminatory conduct or attitudes should be addressed under your anti-discrimination and harassment policies.

Keep in mind, however, that Section 7 of the National Labor Relations Act could be implicated if a group of employees, who are concerned for their own safety, refuse to work with another employee who traveled to an affected area or was exposed to the virus.  An employer would need to be careful about disciplining those employees whose complaints could be considered protected concerted activity.

In any event, employers should be attentive to employees’ concerns, remind employees that the health and safety of employees is a top priority, but that decisions should be based on objective evidence rather than unwarranted fear.

Use of Masks

Employers have a general duty under occupational safety and health laws to protect employees from health risks and hazards that are likely to cause death or serious physical harm.  Does that mean employers must allow employees to use facemasks?

The CDC does not recommend that people who are well wear a facemask to protect themselves from COVID-19.  According to the CDC, facemasks should be used by people who have COVID-19 and are showing symptoms, or health workers and other people who are taking care of someone infected with COVID-19 in close settings.  The WHO also does not recommend wearing a mask when not medically indicated, as it “may cause unnecessary cost, procurement burden and create a false sense of security that can lead to neglecting other essential measure such as hand hygiene practices.  Furthermore, using a mask incorrectly may hamper its effectiveness to reduce the risk of transmission.”  The Hawaii Department of Health also does not recommend wearing a facemask for healthy people.

Under current conditions, it does not appear that employers have to allow the use of facemasks unless the employee is in an occupation with an elevated exposure risk.  OSHA has identified the following occupations with an elevated risk of exposure to COVID-19:

  • Healthcare workers
  • Deathcare (including coroners, medical examiners, and funeral directors)
  • Laboratories
  • Airline operations
  • Border protection
  • Solid waste and wastewater management
  • Persons traveling to areas, including China, with travel advisories

Employers with workers at an elevated risk should emphasize that employees follow safety standards regarding personal protective equipment and respiratory protection.

For employees who are not at an elevated risk, before deciding whether to prohibit employees from wearing masks, employers should weigh the competing risks (e.g., employee concerns and morale, health and safety, public perception).  Note that if conditions worsen, employers may have to provide employees with masks or other personal protective equipment and train them on proper use.

How Should I Prepare My Business?

Employers should monitor information from state and federal public health agencies.  Companies should strongly consider putting together a business continuity plan, if they do not already have one in place.  Prepare for work disruption that may be caused by absenteeism, both in your workplace and your supply chain.  Conduct an analysis of essential jobs and work processes, identify key employees and bottlenecks, and consider staff planning and realignment of resources.  Evaluate the feasibility of remote work for as many positions as possible.  Determine whether cross-training or other preparations (such as automation) are feasible to continue operations.

The continuity plan should also include effective communications, with the objective of (1) reducing transmission at work and (2) maintaining business operations.  You should inform employees of current travel and sanitation advice from public health authorities, train managers on responding to employee concerns, and communicate any business contingency measures you have established.

ADDITIONAL HELPFUL RESOURCES

The following links provide additional information to help you stay informed and be prepared.

To assist businesses in formulating or revising policies, HEC will be conducting a short survey in the next couple of days seeking insights on how Hawaii employers have been preparing for COVID-19.  Also be on the lookout for additional COVID-19 informational materials coming soon.

 

[1] The guidance offered in this article should not be considered legal advice.  Additionally, the situation is rapidly evolving, so employers should continue to monitor the CDCHDOHOSHA, and WHO websites for the latest updates and recommendations, and check for the most updated guidance before making employment decisions.

 

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