Preparing Your Business for the Coronavirus
Map Covid-19
The ongoing outbreak of the novel coronavirus (COVID-19) raises numerous potential issues for employers. These include legal issues ranging from an employer’s obligation to provide a safe workplace and employee leave rights to practical matters such as whether to restrict business travel and allowing employees to work remotely. As the situation continues to develop, employers should prepare in case COVID-19 impacts their workforces by:
Keeping informed of recommendations from the Center for Disease Control and Prevention (CDC), World Health Organization (WHO), or qualified medical experts.
Considering implementing precautions to limit the risk of coronavirus infection at work.
Understanding the legal issues involved in an employer’s response to the coronavirus.
Employers, and the public in general, should also keep in mind that the CDC’s current risk assessment still reports that for most people, “the immediate risk of being exposed to the virus that causes COVID-19 is thought to be low.”
CDC Interim Guidance
The CDC has published Interim Guidance for Businesses and Employers on its website that includes recommended strategies and planning considerations.
Recommended Strategies
The CDC’s guidance recommends that employers:
Actively encourage sick employees to stay home.
Separate sick employees from other employees and send them home as soon as possible.
Emphasize respiratory etiquette and hand hygiene (i.e. covering your mouth when coughing and washing your hands).
Perform routine environmental cleaning of the workplace.
Advise employees before traveling to take certain steps, such as checking the CDC’s Travelers Health Notices and ensuring they are healthy before starting travel.
Planning Considerations
In addition to the recommended strategies, the CDC also recommends that businesses consider ways to decrease the risk of spreading the coronavirus in the workplace (and in the general public) and to mitigate the impact that the coronavirus might have on a business’s operations. Those considerations include:
Identifying potential work-related exposures and health risks to employees.
Considering the potential for telecommuting and flexible work schedules.
Implementing plans to continue essential business functions in the event of higher than usual absenteeism.
Cross-training employees to perform essential business functions.
Cancelling non-essential business travel consistent with the CDC’s travel recommendations and potentially cancelling large work-related meetings or events.
Legal Considerations
In addition to the practical considerations mentioned above, the coronavirus outbreak also implicates several legal issues that employers need to be aware of.
OHSA Requirements
The Occupational Safety and Health (OSH) Act requires that employers provide a safe and healthy workplace for employees. An employer’s obligations under the OSH Act depends on the type of work being performed and an employee’s exposure risk. The Occupational Safety and Health Administration (OSHA) has issued general guidance for COVID-19.
Leave of Absences and Sick Pay
Depending on the size of the employer’s business, employees who are sick, or have family members who are sick with COVID-19, might be entitled to job protected leave under laws such as the Family and Medical Leave Act (FMLA), the New Jersey Family Leave Act, or the New York Family Leave Law. Additionally, employees out sick or caring for sick family members would be entitled to paid sick leave consistent with New York and New Jersey law (or other applicable state paid sick leave laws where the employee works).
Employers should also keep in mind that regardless of eligibility for paid sick leave, employees who are exempt from overtime are generally entitled to receive their full weekly salary for any week in which they work, regardless of the number of days or hours worked by the employee in that week. Thus, an exempt employee who reports to work on only one day (or for one hour) of a week would likely be entitled to pay for the entire week, even if the employee had no eligible paid sick leave available.
Confidentiality
Any medical or health related information an employer receives from or about an employee should be kept in a confidential file, separate from an employee’s personnel file. This obligation applies to all employee medical records, not just ones involving coronavirus.
Discrimination
Employers should also avoid implementing any policies that might implicate anti-discrimination laws. For example, if an employer imposes a quarantine or incubation period leave policy, those policies should be based on neutral, objective information and supported by data received from the CDC or a qualified medical professional.
Additionally, medical complications arising from COVID-19 might qualify as a disability under the Americans with Disabilities Act (ADA), or state and local laws such as the New Jersey Law Against Discrimination (NJLAD), the New York Human Rights Law (NYHRL), or the New York City Human Rights Law (NYCHRL). If a medical issue qualifies as a disability under applicable law, employers cannot discriminate against an employee because of that medical issue and may have to provide a reasonable accommodation, such as protected job leave while the employee recovers.
Any employers that have not already done so, should immediately start preparing to minimize the risk of COVID-19 impacting their workplace and ensuring compliance with the numerous employment laws that might be implicated by COVID-19.
If you have questions about your business’s legal obligations concerning the coronavirus, please contact us at (201) 345-5412 or using our online scheduling system.