COVID-19 PRIMER

There has been some discussion over the Coronavirus, or COVID-19, virus that is spreading uncontrollably around the world. If this is news, a check of every website in the known universe might have some mention.

While medical attention is somewhat important in addressing the virus, what we truly care about is the impact on the workplace and, specifically, what HR professionals should be doing.

The following is a primer for HR.

What is HR’s baseline obligation?

OSHA requires employers provide a safe working environment for employees and guests. This is to say that federal law (and probably some state laws as well) requires employers take steps to make certain the workplace does not pose a hazard to people on the property, including workers. Typically, we understand this from a physical safety standpoint, but it applies to any known or foreseeable harm that could come to an employee, including viruses.

Employers have an affirmative obligation to take steps to prevent employees from catching COVID-19 at work. This doesn’t mean employers need to provide masks, or personal air filters at work stations, but it does mean some reasonable steps should be considered and implemented.

Is there an entitlement to work?

No. We don’t normally think of at-will employment in this context, but the concept supports employers making unilateral decisions to keep employees home if the employer believes there is a threat to the workforce. The ability of employers to dictate if and when employees come to work is additionally supported by federal law, including OSHA. So, yes, if an employee, for example, just returned from a trip to Italy or California and you’re concerned he or she is going to expose other workers to the virus, you can make the employee stay home, with or without pay. The same holds true if you have a reasonable belief the employee might be contagious. You can tell the employee to stay home. You can even require the employee to obtain medical clearance before returning to work.

Paid time off?

There is nothing special about COVID-19 that would create an entitlement to paid time off beyond what your current policies or state/municipal law might require, the latter in situations where the government has created a paid time off entitlement for employees. Address the situation under your policies and/or state/municipal law as you would any time someone is off work for sickness. The same if you unilaterally tell the employee not to come to work because of concern they might be infected.

Covered by FMLA?

Maybe … probably. Here, again, there is nothing special about COVID-19 from an FMLA entitlement standpoint. If the employee is eligible for FMLA (and you’re a covered employer) and he or she meets the definition of having a serious medical condition, then place the employee on FMLA for the time off work he or she will need to deal with the virus. Given what we know thus far about COVID-19, the employee is probably going to be gone from work more than three days and receive medical treatments, meaning they are very likely to qualify for FMLA.

Watch out for discrimination.

Treating employees differently because of their race, national origin, age, or any other protected status, is potential discrimination, even if it’s because of COVID-19. For example, the virus was raised by public awareness in China. Telling all Chinese national employees to stay home from work and/or get medical testing is a bad idea. Basing the same decision on whether someone has traveled to China or another area where there’s been an outbreak, regardless of the employee’s nationality, would be nondiscriminatory and, seemingly, okay.

Separately, we are still learning about COVID-19. Treating employees who do or don’t have the virus as though they are disabled could give them protections under the ADA (or state law, if applicable). Along these lines, mandating employees take physicals or seek medical treatment from the company’s doctors with reporting back to the company is something that should only be done with extreme caution, if at all, and only after legal counsel.

Steps to take.

HR professionals in conjunction with company leadership should be assessing the impact the virus could do to employee resources. There are a number of areas to consider.

If you do not have a work-from-home policy, and that would be practical for your business, now is the time to create the policy and communicate it to employees and management.

Review your paid time off and other related policies to see what they might or might not cover if you have to close the business or if employees start missing time because of the outbreak. Along these lines, check into any disability policies to understand whether they might be triggered should employees become infected.

Work with the company’s safety team on steps that could be taken to lessen any spread or impact should someone infected come to work unexpectedly. Discuss a clean-up protocol. Put together a communication to employees in advance in the event someone does contract the virus. Will you shut down? Will key people work from home? Will it be business as usual? These issues should all be worked out in advance so you are ready to communicate the strategy and plan to employees immediately.  

Telling people to wash their hands while singing a song is nice, but companies taking an outbreak seriously will have a plan in place before an outbreak affects their employees directly.

FOR MORE information on responding to Coronavirus next week (March 9) we will be posting a new podcast discussion of myHRpodcast will be posted on iTunes, Google Play, Spotify and other podcast sites and on the myHRgenius website at www.myhrgenius.co.

As a member of the myHRgenius program you are also encouraged and welcome to contact us to discuss this issue at myhrgenius@thompsoncoe.com or by calling 651-389-5000.

Thompson Coe and myHRgenius Tip of the Week is not intended as a solicitation, does not constitute legal advice, and does not establish an attorney-client relationship.