Client Alerts COVID-19 Resources Labor & Employment Privacy & Data Security
With more than 100,000 global cases of the novel coronavirus (“COVID-19”) and infections in dozens of countries, employers are preparing for the ever-increasing likelihood that COVID-19 may impact their workforce. This client alert provides Ten Do’s and Don’ts to employers as they take steps to educate and protect workers, minimize business disruption, and do their part in curbing the spread of this virus.
- Communicate with employees regularly. With COVID-19 dominating the news media, employers would be wise to advise employees they are carefully monitoring the situation and taking appropriate steps. Consider sharing reliable sources of information with employees, such as the website of the Centers For Disease Control And Prevention (“CDC”), and designating a person within the organization to answer questions. Active communication can help alleviate concerns and show a proactive approach to an evolving situation.
- Make good hygiene a priority. Remind employees that there is a shared responsibility for preventing the spread of infection, whether it be COVID-19, influenza, or the common cold. Take steps to facilitate good hygiene and curb the spread of germs, such as making no touch hand sanitizing stations available, regularly disinfecting frequently touched objects and surfaces, and posting information on hand hygiene and cough and sneeze etiquette. The CDC’s website makes available posters and information free of cost, including a “Don’t spread germs at work” poster and a “Stay home if you’re sick” poster that employers may find useful resources.
- Encourage sick employees to go home and stay home. Employers should be vigilant and vocal in encouraging sick employees to stay home and to inform their supervisor immediately if they become ill during the workday. Employees with symptoms of acute respiratory illness should stay home and not return to work until they are fever- and symptom-free (without the aid of symptom-masking medicines) for at least 24 hours.
- Revisit your paid leave, attendance, and telecommuting policies. Now is a great time not only to remind employees of your existing paid leave, attendance, and telecommuting policies, but also to ensure they are up-to-date and compatible with public health guidance. For example, the CDC urges employers not to require a healthcare provider’s note for respiratory illnesses to avoid increasing the burdens on already over-taxed healthcare facilities. Employers may wish to build flexibility into attendance and telecommuting policies to reduce the potential spread of illness, such as by encouraging employees who are ill or who have ill family members to use leave time or to work from home where feasible.
- Be consistent. Any deviation from your normal policies should be set forth in writing and clearly state how and when it will apply. Employers should treat all similarly situated employees the same to avoid claims of disparate treatment.
- Wait to plan. Advance planning is critical to avoiding business interruption and ensuring the availability of resources and personnel. Consider how to address absenteeism in the workplace and the infrastructure needed for a possible remote work scenario.
- Share employee medical information. An employer’s collection of employee health and medical information can be subject to a variety of federal and state privacy and confidentiality laws. Depending on the nature and source of the information and the location of the employee, these laws can include the Americans with Disabilities Act, HIPAA and state health information privacy laws, and state data security and data breach notification laws. Employers should be mindful that these laws continue to apply in an infectious disease outbreak. If an employee tests positive for COVID-19, the employer can and should advise other workers of the possibility of exposure. However, the employer should not disclose the identity of the employee to other members of its workforce, or to external parties except as permitted or required under relevant laws. The employer should also take appropriate measures to restrict access to the employee’s health information to those personnel who need to know the information to carry out the employer’s COVID-19 response.
- Fail to train your supervisors. Employers should ensure supervisors are trained on policies and how to handle workplace situations related to COVID-19. Supervisors should have ready access to information on infection control and how company policies may be impacted by an infectious disease outbreak. Additionally, supervisors should know who to contact to report suspected exposures and who to call with questions.
- Overlook federal and state employment laws. A variety of federal and state employment laws may be implicated by employer measures to respond to the spread of COVID-19. For instance, employers may still have to pay workers who qualify as exempt under the Fair Labor Standards Act their full salary (even if paid leave banks are depleted) where the employees work for any part of a workweek. Employees who contract the coronavirus may qualify for leave under the Family and Medical Leave Act or state medical leave laws. Complications from COVID-19 may also implicate the Americans with Disabilities Act and require a reasonable accommodation. WARN Act notices may be required in the event of a covered plant closing or mass layoff. Additionally, state and local paid sick leave laws may provide coverage for absences related to COVID-19.
- Panic or act rashly. Employers should carefully consider business risk and make well-reasoned decisions based on the best-available information and governing laws.
This document is not intended to be exhaustive, and employers should seek additional guidance from health officials and their attorneys and advisors as appropriate. Wyrick Robbins’s Labor & Employment and Privacy & Data Security Practice Groups stand ready to assist you and your business on COVID-19 and other emerging issues that may impact your business.