Legal Issues for Employers Concerned About Coronavirus (“COVID-19”)

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With the continued spread of coronavirus disease 2019 (“COVID-19”), businesses, particularly in the healthcare industry, are facing new questions and issues concerning how to prepare and respond to patients and employees who may have been exposed to COVID-19.

The following are a few steps clients should take to help prepare for and react to this evolving situation:

1. Regularly Consult and Follow Guidelines Set Forth by the CDC, OSHA and other Local and National Health Authorities.

The Centers for Disease Control (“CDC”), Occupational Health and Safety Administration (“OSHA”), and local or regional health authorities, and other leading health authorities have and continue to update their websites with infection control procedures and other resources and guidance for how to prepare for and curb the spread of COVID-19. The best thing employers and business owners can do at this time is to regularly consult and follow current CDC, OSHA, and other applicable guidelines, and this is especially true for health care facilities that may have a patient or employee who has been exposed to COVID-19. These resources include:

CDC Guidance:

OSHA Guidance for Employers and Health Care Workers

American Dental Association Dental Practice Guidance

American Veterinary Medical Association Guidance

2. Be Aware of Updated Leave Policies

While the CDC and other resources suggest teleworking as an option to prevent the spread of COVID-19, that simply isn’t possible for most health care workers. An employee, especially someone who is at greater risk if he or she contracts COVID-19 because of a preexisting condition, may be entitled to job-protected leave under federal, state, or local law. In addition, employees may request leave for other reasons as schools continue to close and, depending on applicable law, certain employees may also be entitled to leave to care for an ill family member.

Generally speaking, federal, state, and local laws limit how much information an employer can ask an employee about symptoms and health conditions and require employers to maintain confidentiality of information obtained about an employee’s illness or disability. That said, now that COVID-19 has been classified as a pandemic and as the situation worsens, an employer may be in a position to obtain more information about an employee’s symptoms if the employer, based on objective information and guidance from local, state, and federal health officials, reasonably concludes that certain employees will face or may become a direct threat if exposed to COVID-19.

While federal, state and local law protecting workers with a disability continue to apply, the U.S. Equal Opportunity Commission (“EEOC”) has stated that federal disability discrimination laws do not interfere with or prevent employers from following the CDC’s guidance about what steps employers should take regarding COVID-19. The following list contains a few suggestions for employers while navigating COVID-19:

Revisit leave and accommodation policies or update such policies to be more flexible for this situation
Follow CDC and OSHA guidance in cleaning and providing information and supplies necessary for infection control
Develop clear channels of communication and/or appoint a “point-person” who is responsible for staying up-to-date with CDC and other applicable guidance to handle questions and concerns
Avoid discrimination or harassment claims by staying informed and applying leave policies in a uniform and neutral manner

EEOC Guidance:

Please be aware that this is a rapidly developing situation and the legal questions faced are new or unusual in many ways, and these are just a few suggestions for employers and businesses facing COVID-19. The best thing employers and business owners can do at this time is regularly consult and follow current guidelines from applicable local and national health authorities, and consult legal counsel to assist with the navigation of employment-related issues.

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