Coronavirus: Avoiding the Virus and Employment Law Issues

by | March 3, 2020

At the time of writing this post, there are currently 91 confirmed or presumed-positive cases of novel Coronavirus, or COVID-19, in the United States. Just in the past three days, three deaths were reported in the state of Washington, bringing the count to six deaths to date in this state. The latest news reports provide that there have been a total of 17 confirmed cases in Washington – 14 in King County and 3 in Snohomish County. There are now 65 countries across the world with confirmed cases of Coronavirus.

But even as schools close for emergency cleanings and Governor Inslee declares a state of emergency in the wake of the surge in cases, the world keeps turning, and employees continue showing up for work. Inevitably, as business owners, you will need to be prepared to respond to questions and take action to prevent the spread of the disease in their workplace. What is an employer to do? To quote Seahawks legend, Russell Wilson… “The separation is in the preparation.”

Stay informed. 

Arm yourself with facts by staying up to date on the status of coronavirus (COVID-19) here in Washington, in the US, and globally. Here are a few essential resources to help you stay informed:

o   World Health Organization (WHO) COVID-19 Guidance

o   CDC Interim Guidance for Business and Employers to Plan and Respond to COVID-19 

o   OSHA COVID-19 Overview and Resources

Maintain safe working conditions. 

The Occupations Safety and Health Act of 1970 (OSHA) requires employers to ensure safe and healthful working conditions for their employees. Here are some actionable steps you can take as an employer to do so:

o Encourage work-from-home where possible, especially for employees who are sick or showing symptoms of acute respiratory illness.

o Encourage (and require, where necessary) hand washing and other good hygiene habits. Hang posters to educate and remind employees to wash their hands. Here is a poster from the WHO:

o Disinfect (and provide employees with materials to disinfect) surfaces in the workplace, including countertops, doorknob, keyboard, and desks.

o Advise and require employees to stay home, leave work, and/or isolate themselves, as appropriate, if they develop symptoms.

Prepare for employee travel. 

Employers should prepare to respond appropriately to employee travel. Employees travel for work. Employees travel for vacation. Either way, employee travel begs the question – what am I required to do as an employer? 

o Check if your employee plans to be traveling to a location with confirmed COVID-19 cases.

o Educate employees that travel on the risks and ways to avoid catching or spreading the virus.

o When employees travel for work purposes, assess whether employee travel is essential and advisable, and avoid sending employees who may be at higher risk of serious illness to locations with confirmed COVID-19 cases.

o Prepare to have employees work from home during the 14-day incubation period after returning from traveling. 

Anticipate the risks and worst-case-scenarios of coronavirus. 

Employers must take steps to prepare for the possibility that one or more employees will be exposed to coronavirus or otherwise not feel comfortable coming into work. Don’t be caught off guard by interruptions to your operations. Instead, consider the worst-case-scenarios, and communicate and educate your employees and management on best practices and procedures.

o To minimize risks to employees, employers should consider increasing flexibility for remote work.

o If you have a reasonable, objective belief that an employee presents a danger to the workplace, you can require them to work from home.

o Where work-from-home is not possible, determine whether you will provide paid or unpaid leave and develop a contingency plan in case a significant number of employees are unable to work. This plan may involve adjusting project timelines or work hours, cross-training employees, hiring contractors to fill critical gaps, and/or preparing to communicate and set expectations with clients, vendors, employees, and managers.

o Review your policies and know what your obligations are as an employer under federal, state, and local laws. These may include sick leave/PTO, FMLA, paid family and medical leave (PFML), and the Americans with Disabilities Act (ADA).

o If your business or its operations are particularly susceptible to losses or dips in revenue due to sickness, weather, or other societal interruptions, consider talking with your insurance provider about business interruption insurance. You may also need to ask about the impacts on your other policies, such as Commercial General Liability, Professional Liability, and Workers’ Compensation.

Don’t discriminate or violate the rights of privacy. 

Employers must be careful to avoid discriminating against employees or disclosing protected health information without consent.

o Don’t assume exposure or the risk of an employee without an objective and legitimate reason. Take into account factors such as symptoms and whether the employee has traveled.  

o Don’t disclose personal or health information about an employee to any other employee without first receiving consent.

o Talk with an attorney about your rights, responsibilities, and risks before requiring anyone to work from home or taking any other action that may be viewed by the employee as discrimination.

Many of us are in unknown territory for how COVID-19 will continue to take shape in our region, state, and country. As employers, we want to protect our employees and our business from COVID-19. It is essential to make a plan, educate your team, and act within the law of your employees’ rights.