Lewis Roca Blog

The outbreak of respiratory disease (COVID-19) caused by the new coronavirus presents many issues for employers. The Centers for Disease Control and Prevention (CDC) expects the disease to continue to spread throughout the country. Meanwhile, the global spread of the disease, the rise of travel advisories, and the widespread media coverage on these topics are leaving employers worried about the health and safety of their employees and assessing the actions they should take in response.

Employers should prioritize implementing plans to manage and address workplace concerns about the coronavirus. In doing so, employers must be mindful that their plans and actions are compliant with applicable employment laws.

This guidance addresses common areas of concern that may arise in the workplace and strategies for responding. Given the complex legal landscape, employers are strongly encouraged to consult with legal counsel prior to taking any action in response to the coronavirus.

• Stay informed. Employers should stay up-to-date on officially recommended actions and factual information in their jurisdictions. Sources within the United States include the CDC and the World Health Organization (WHO). The CDC has implemented interim guidance for businesses and employers to plan, prepare, and respond to COVID-19.

• Adopt travel guidelines and protocols. Employers should establish work travel protocols and revisit them based on recommendations from the WHO and CDC. Currently, the CDC recommends avoiding nonessential travel to Italy, China, South Korea, and Iran. Employers should continue to consult the CDC’s website for current travel notices. Employers should strongly consider limiting employee business travel to and from areas where COVID-19 is most prevalent to prevent illness and loss of productivity due to quarantine or employee exclusion from the workplace after travel. Many employers are suspending all nonessential business travel or limiting travel to within the United States.

Employers should also be sensitive to employee requests to avoid travel, particularly to high-risk areas. Alternatives to in-person meetings should be encouraged.

• Actively encourage sick employees to stay at home and seek medical attention. The CDC recommends that employees who have symptoms of acute respiratory illness symptoms (i.e. cough, shortness of breath) stay at home until they are free of fever and any other symptoms for at least 24 hours. Employers should communicate with employees about the importance of staying home when ill, and maintain flexible policies permitting employees to stay at home when necessary without adverse actions. This may include potentially adopting temporary leave or work-from-home policies. Policies that give employees confidence that they will not be penalized for taking necessary sick leave are important tools in reducing potential exposure.

• Address potential exposure risks. According to the Occupational Safety and Health Administration (OSHA) guidance, employers should implement policies that will result in the "prompt identification and isolation of potentially infectious individuals.” OSHA has also indicated that employers may take action with regard to high-risk individuals, including those who have traveled to impacted areas or those who have been exposed to the illness.

Employers can mandate that employees report on their recent travel to impacted regions to assess exposure risks. An employer that has a reasonable belief an employee has travelled to a high-risk country or area and either has acquired or been exposed to COVID-19 may ask that the employee not return to work for the COVID-19’s incubation period (which is currently identified as a 14-day incubation period). In these instances, the employer should be sure to comply with applicable leave, wage and hour laws regarding entitlement to leave and pay.

• Avoid claims of discrimination. Title VII and state law prohibit discrimination based on race, national origin, and other protected classifications. In this context, the CDC has advised employers to use its guidance to determine risks of COVID-19 and to “not make determinations of risk based on race or country of origin, and be sure to maintain confidentiality of people with confirmed COVID-19.” Employers should take care not to exclude employees from the workplace or work-related activities without evidence of illness or recent travel to a high-risk area.

• Americans with Disabilities Act considerations. The U.S. Equal Employment Opportunity Commission (EEOC) recently commented on the coronavirus and implications under the Americans with Disabilities Act (ADA). In short, the EEOC cautions that employers remain cognizant of their obligations under the ADA, with regard to reasonable accommodations and prohibited medical examinations. The EEOC has made clear, however, that the ADA does not interfere with or prevent employers from following the guidelines and suggestions made by the CDC about steps employers should take regarding the coronavirus.

• Family and Medical Leave Act (FMLA) considerations. An employee who tests positive for COVID-19 may qualify as having a “serious health condition” for the purposes of the federal FMLA, which guarantees unpaid, job-protected leave for eligible workers at businesses with at least 50 employees who have a serious health condition. However, employees are not entitled to take FMLA to stay at home to avoid getting sick.

• Follow OSHA reporting requirements. Employers have an obligation to report certain types of work-related injuries and illnesses to OSHA. OSHA has deemed an employee infected with the coronavirus as a recordable illness when a worker is infected on the job.

• Stay Calm. Given the media attention the coronavirus has received, employees may seek to avoid the workplace despite a low number of outbreaks in the employer’s region. Employers should consider proactive measures to combat misplaced worries. Among other steps, employers can regularly update employees on the relative risk of outbreak in the employer’s area, take extra steps to sanitize work locations, provide hand sanitizers, and other cleaning materials to encourage positive hygiene and encourage sick employees to stay home. Employers can also circulate the CDC recommendations: washing hands with soap and water for at least 20 seconds after using the bathroom, before eating, and after blowing your nose or sneezing. Avoid touching your eyes, nose and mouth and clean objects and surfaces you touch often. Employers should also consider sharing regular updates from the CDC on the status of the coronavirus, including the CDC’s recommendations regarding detecting symptoms and preventing and treating the disease.

This material has been prepared by Lewis Roca Rothgerber Christie LLP for informational purposes only and is not legal advice. Readers should not act upon any information without seeking professional legal advice. Any communication you may have with a Lewis Roca Rothgerber Christie LLP, though this announcement or otherwise, should not be understood by you to be attorney-client communication unless and until you and the firm agree to enter into an attorney-client relationship.