Written By: Emily Shupe, Rathje & Woodward LLC
COVID-19 (novel coronavirus) was just recently declared to be a pandemic by the World Health Organization. Employers may encounter a variety of employment-related legal issues in planning for or responding to these circumstances. The potential issues employers face include promoting healthy and safe habits in the workplace, high rates of employee absenteeism, a need to conduct off-site business, and general business disruption.
Some of the guidance available to assist employers in their response to COVID-19 includes the following resources from the U.S. Department of Labor:
- OSHA Guidance on Preparing Workplaces For COVID-19
- OSHA Standards and Directives Relating to COVID-19
- Department of Labor Q&A on Public Health Emergencies and the Fair Labor Standards Act
- Department of Labor Q&A on Public Health Emergencies and FMLA
Here is a brief summary of some issues employers should consider in their planning and response efforts:
Mandatory Infectious Disease Reporting. Under Illinois law, certain individuals are mandatory reporters of infectious disease. Employees of schools, universities and child care facilities, health care providers, veterinarians, dentists, food service management personnel, and correctional facility personnel are just a few examples of those who must immediately report certain infectious diseases, including coronavirus, to the Illinois Department of Public Health. Employers that fall within the scope of the law should ensure that employees are aware of their obligations. See http://dph.illinois.gov/topics-services/diseases-and-conditions/infectious-diseases/infectious-disease-reporting for more information.
FMLA & Other Leave Policies: Employees may be eligible for FMLA or other leave benefits for their own illness or to care for sick family members. Employers must decide whether to permit extended leaves under existing or special leave policies beyond FMLA or state law requirements, and how to treat absent employees not eligible for FMLA or state leave. Employers may consider requiring employees to stay at home, mandating the use of paid leave (e.g., vacation and PTO) at company- determined times, not compensating employees at all while on leave, and other leave-related policies raising a host of legal and business issues. Pay issues for both exempt and non-exempt employees under the Fair Labor Standards Act are also triggered by employee absences initiated by the employee or the employer.
Occupational Safety and Health Act (OSHA): OSHA’s “General Duty” clause requires employers to provide a workplace free from recognized hazards likely to cause death or serious physical harm. Moreover, OSHA provides that employees may refuse to come to work if they reasonably believe that there is an imminent threat of death or serious physical harm.
Health Insurance Portability and Accountability Act (HIPAA), Americans with Disabilities Act (ADA) and State Privacy Laws: Employers attempting to gather information about the spread of coronavirus or other diseases among employees should be mindful of applicable privacy laws. HIPAA prohibits health plans from disclosure of employee health information, but may permit uses or disclosures of protected health information that are necessary for public health reasons. The ADA’s privacy provisions grant protection to all employees with respect to employer medical tests and inquiries and the dissemination of employee medical information. Many states also have medical privacy rules regarding the disclosure or use of employee health information. For more information regarding employer and employee rights and obligations under the ADA during a pandemic, please visit https://www.eeoc.gov/facts/pandemic_flu.html.
National Labor Relations Act (NLRA): Employers with unionized employees may be restricted by collective bargaining agreements in their ability to change policies in response to a pandemic or other business disruption. Refusal to work because of unsafe work conditions may be considered protected concerted activity should employers take action against such employees.
Telecommuting: Permitting or expanding the use of telecommuting in the event of a pandemic or other emergency raises various issues. For example, telecommuting may increase the risks of disclosure of trade secrets and other confidential business information. Employers may also want to review policies and practices regarding work at home to ensure compliance with state and federal overtime laws for non-exempt workers to whom telecommuting is made available.
What Should Employers Do: Employers should actively monitor developing events and take measures as circumstances warrant. There are several good resources available on the Internet related to pandemic preparedness and coronavirus in general:
- World Health Organization
- Centers for Disease Control
- U. S. Food and Drug Administration
- Occupational Safety and Health Administration
Employers should avoid overreacting or acting rashly without fully considering the consequences. Doing so may expose employers to unnecessary litigation risk and cause undue alarm among workers. For example, where a pandemic is associated with specific countries, employees should be cautious to avoid potential claims of disparate treatment and harassment based on race or national origin as symptomatic employees are told to remain away from work or subjected to medical monitoring or inquiries.
Nevertheless, employers may want to consider the following steps to help prepare their organizations for the spread of coronavirus:
- Keeping abreast of government advice (i.e., WHO, CDC, etc.) and communicating this to employees.
- Reviewing your organization’s emergency contingency/disaster recovery plans to ensure continuity of business in the event of mass closures, travel restrictions, and quarantine situations.
- Updating contact details of employees and circulating emergency contact details for key employees.
- Carrying out a risk assessment to ensure good hygiene practices in the workplace, identify potential improvements, and train employees on best practices.
- Modifications to travel practices including restrictions on non-essential travel, requiring employees to report all international travel, and mandating use of leave for a period of time for employees who have recently travelled internationally.
- Temporary expansion of employee sick leave, leave of absence, telecommuting, and remote-working programs (i.e., reducing the incentive of sick employees to come to work for fear of losing pay).
If Rathje Woodward can be of assistance as your organization prepares for coronavirus, please contact our experienced group of employment attorneys: Emily A. Shupe, Raymond J. Sanguinetti, Mark J. McAndrew, and John R. Zemenak at 630-668-8500.