COVID-19 (“Coronavirus”) presents an evolving health issue with complex problems for employers to address as they work to maintain workplace safety, productivity, and legal compliance. The U.S. Centers For Disease Control (“CDC”) and the U.S. Department Of Labor’s Occupational Safety And Health Administration (“OSHA”) have published information and guidance for employers on this issue. Businesses should review these resources for guidance which can be found here:
Businesses in certain industries (such as health care) should consult additional agency information and guidance. Consult with your legal counsel regarding which additional agency guidance may be applicable to your industry. Below is a summary of issues that should be considered by all businesses in preparing for and addressing Coronavirus issues in the workplace:
The OSHA General Duty Clause requires employers provide “a place of employment which [is] free from recognized hazards that are causing or likely to cause the death or serious physical harm to . . . employees”. Some steps employers can implement to effectuate basic infection prevention include:
Making hand sanitizer, tissues and disposable surface wipes readily available;
Ensure eating areas, work spaces and surfaces are disinfected regularly (CDC and OSHA are not recommending disinfection practices beyond normal practices at this time);
Discourage employees from using other workers’ phones, desks or other tools and equipment when possible;
Promote frequent and thorough hand washing and respiratory etiquette (covering coughs and sneezes);
Encourage sick employees to stay home;
Discontinue non-essential business travel to locations with ongoing Coronavirus outbreaks (consult the CDC travel warning levels at www.cdc.gov/coronavirus/2019-ncov/travelers). Employers should tread more carefully in policing non-work related travel. For non-work related travel, employers should consider providing information regarding the risks of traveling to affected areas, request that employees notify human resources of travel to affected areas and require employees work remotely after travel to affected areas.
The above list is not exhaustive, and additional state and/or local guidance and apply. Consult your legal counsel for more information.
OSHA requires covered employers to keep a record of certain work-related illnesses and injuries. While the standard cold and flu are exempted from recording requirements, OSHA has deemed Coronavirus a recordable illness when a worker is infected on the job. Certain employers may be subject to additional reporting requirements and should consult their legal counsel.
OSHA prohibits employers from retaliating against workers for raising concerns about safety and health conditions. There are also additional industry-specific laws which prohibit retaliation against employees who raise health and safety concerns in the workplace. Employers should communicate with their managers and supervisors regarding appropriately responding to workplace complaints about health and safety.
The CDC recommends “[e]mployers should maintain flexible policies that permit employees to stay home to care for a sick family member.” Employees with sick family members may also be entitled to leave under the New York Paid Family Leave Act (“PFL”) or the federal Family Medical Leave Act (“FMLA”) and/or other local sick leave laws.
Generally, employees are not entitled to leave to stay at home to avoid getting sick. However, employees who have certain medical conditions (such as a compromised immune system) may request to stay at home as a reasonable accommodation under the Americans With Disabilities Act (“ADA”) and related state and local laws. Such requests should be considered and analyzed as any other disability related accommodation request.
Under limited circumstances, OSHA permits employees to refuse to come to work if they believe in good faith they will be exposed to imminent death or serious injury. This situation may be additionally governed by the National Labor Relations Act (“NLRA”) as a protected concerted activity, even in a non-union workforce. If this situation arises, employers should consult legal counsel.
With respect to employee pay during a leave or absence, pursuant to the Fair Labor Standards Act (“FLSA”) and related wage laws, exempt salaried employees who work any part of a work week must be paid for that week except in certain limited circumstances which may include a full day absence for personal reasons that is not otherwise covered by a paid time off policy. Non-exempt hourly employees must be paid for all hours worked, including work performed remotely. Non-exempt hourly employees are not entitled to pay for time in which they are not performing work unless they are covered by a paid leave law or policy.
ADA and Related Disability Discrimination Considerations