The world is struggling to understand and respond to the rapid spread of the SARS-CoV-2 virus and the disease it causes, named “coronavirus disease 2019” (COVID-19). While more information on this virus continues to develop, in some ways COVID-19 presents new challenges for businesses and in other ways, the challenges are similar to those businesses already face.
We urge everyone to continually educate themselves on COVID-19 and most of all to ensure the safety and health of their families and employees. Helpful and updated information from the Centers for Disease Control and Prevention (CDC) can be found at https://www.cdc.gov/coronavirus/2019-ncov/index.html. Here are some of the more important issues to be aware of if you own a business grappling with this challenge:
Employers Have an Obligation to Provide a Safe Workplace: OSHA requires businesses to provide employees with a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” There is no one-size-fits-all solution for what this mandate means as to COVID-19, but at a minimum it should include having a plan in place (which should include written direction to employees), educating employees on how the disease transmits, ensuring all precautions are taken to prevent infection and spread, and mandating that any employees with any symptoms stay home. Employees who are only suspected of possible infection likely cannot be forced to stay home but depending on circumstances should be strongly encouraged to do so.
Employees Have Privacy Rights in Their Health Information: HIPAA protects employee privacy when it pertains to medical and health issues. Care should be taken to protect employee private health information and to not disclose it other than as necessary to ensure compliance with other laws.
There are Limitations on Identifying COVID-19: While good communication is critical to assessing the threat to your workplace and employees should be required to confidentially report any symptoms indicating they should stay home, employers can only require medical examinations if they are “job-related” and “consistent with business necessity”.
These Challenges Will Likely Test Current Policies: Many issues presented by COVID-19 can be addressed through current employee handbooks and written policies. However, it is critical that employers have lawful written policies addressing sick leave, reasonable accommodation, use of PTO/vacation, and if applicable compliance with the Family Medical Leave Act and the California Family Rights Act (both of which generally require time off to care for a sick family member). The application and intersection of these laws can be complex so it is important that employers review their policies, but also address whether those policies are flexible enough to comply with public health recommendations and the impact on their specific workplace.
The EEOC has also provided guidance on pandemic preparedness and how these issues should be handled in light of the Americans with Disabilities Act:
In addition, the California Department of Public Health has information on COVID-19 that is being continually updated:
The information provided above is general and every business will need to address COVID-19 as it relates to their specific operations and people. If you have any questions related to these issues do not hesitate to contact us.