Coronavirus and the Workplace: Practical and Legal Considerations

If you are reading this post, you already know about SARS-CoV-2, the virus which causes coronavirus disease 2019 (“COVID-19”), or, coronavirus.  There is no shortage of news to absorb and guidance to implement.  Federal, state (CTMANY), and local (BostonHartfordNew HavenNew York) authorities offer directives and information.  News outlets including The Washington Post and The New York Times have continuously updated coronavirus sections, sans paywalls. Johns Hopkins University is mapping coronavirus’s spread, in near real time.  Here at Murtha Cullina, we are abiding by a common and useful refrain: “don’t panic, do prepare.”

So, how can you and your employees safely and effectively manage the myriad of challenges coronavirus has begun to present?  The CDC has issued Interim Guidance for Businesses and Employers, with common sense and effective steps employers may take, including:

  • Encourage sick employees to stay home, and implement flexible policies concerning sick leave and remote work.
  • Send home sick employees.
  • Provide information and materials for effective personal hygiene: encourage vigorous hand washing, liberal sanitizer use, and proper coughing and sneezing etiquette.
  • Clean the office: disinfect surfaces that are regularly touched, like keyboard, doorknobs, coffee makers, bathrooms, etc.
  • Take precautions to monitor travel. We recommend checking the CDC websitefrequently for the most updated travel restrictions and recommendations.

Varied labor and employment laws will be implicated by the response to coronavirus.  Such laws include but are not limited to:

  • Wage and Hour LawsReview Department of Labor guidelines concerning the Fair Labor Standards Act and coronavirus.Exempt employees generally must be paid for any week in which they perform work. Non-exempt employees need not be compensated for shifts not worked.  Employer paid time off policies, remote work policies, and paid sick leave statutes (where applicable) all impact how employees may work and may be compensated.  Make sure your PTO and remote work policies are clearly communicated and evenhandedly applied.   Consider extending additional PTO to ensure that employees are given incentive to stay home when necessary.
  • Medical Leave LawsReview Department of Labor guidelines concerning the Family and Medical Leave Act and coronavirus.If your workplace is subject to the federal Family and Medical Leave Act or one of its state law analogues, employees may be entitled to unpaid leave to address their own or a family member’s coronavirus. Review your medical leave policies and processes to ensure orderly and uniform application.
  • Americans with Disabilities Act: In response to the 2009 H1N1 outbreak, the Equal Employment Opportunity Commissionreleased guidance concerning ADA compliance and pandemic preparedness. Employers cannot make employee medical inquiries without an objective basis to believe the employee’s “ability to perform essential job functions will be impaired by a medical condition”; or the employee’s medical condition poses a “direct threat.”  Information resulting from such inquiries must be kept confidential.  And employers must make reasonable accommodations for sick or at-risk employees.  Practice transparency and flexibility in employee communications and work arrangements to encourage collective health and safety.
  • Discrimination LawsThe CDC has cautioned “do not make determinations of risk based on race or country of origin.Stigmatizing any group is bad for business and may create legal liability.
  • Occupational Safety Health Administration Standards: On March 9, 2020, OSHA published “Guidance on Preparing Workplaces for COVID-19.”  If an employee is infected at work, coronavirus must be documented in accordance with existing OSHA regulations.  Keep your workplace clean and infected employees at home to prevent occupational exposure to coronavirus.

The global understanding of coronavirus remains fluid.  Issues specific to your workplace will certainly arise and change.  The Murtha Labor and Employment team is on-call to provide specific guidance, as we navigate coronavirus’s substantial and uncertain impact together.

 

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