According to the United States Center for Disease Control, Coronaviruses are a large family of viruses that are common in humans and animals. The coronavirus disease recently widespread in China has been identified as COVID-19, a respiratory illness that can spread from person-to-person. Patients with confirmed COVID-19 have experienced mild to severe respiratory illness with symptoms including fever, cough and shortness of breath. The CDC notes that many patients have experienced pneumonia in both lungs as the most severe complication from COVID-19.
Although there are hundreds of confirmed COVID-19 cases in the United States, the CDC notes that the immediate health risks from COVID-19 are considered low.
On February 26, 2020, the CDC issued Interim Guidance for Businesses and Employers to Plan and Respond to COVID-19. Importantly, the CDC’s Guidance noted that employers cannot make COVID-19 risk determinations based on race or country of origin. Additionally, the CDC Guidance reminds all employers of the obligation to maintain the privacy and confidentiality of any employees confirmed to have COVID-19.
Generally, the CDC recommends that employers encourage sick employees to stay out of the workplace. The Occupational Safety and Health Act (“OSHA”) requires employers to provide safe work places for all employees. Accordingly, employers are advised to actively encourage sick employees to stay home. Employers should also require sick employees to remain out of the workplace until the employee is fever and symptom free for at least 24 hours. Many jurisdictions require employers to provide paid sick leave, and employers who provide such leave may find their employees more willing to stay home. Where feasible, employers should also consider allowing or encouraging employees to work from home.
Employers must remain mindful of the Americans with Disabilities Act (“ADA”) as well as other equal employment protections when addressing employee illnesses. In the event that an employee is confirmed to have COVID-19, the employer must inform fellow employees of the potential exposure to the virus in the workplace but maintain confidentiality as required under the ADA. Employers are encouraged to share CDC’s guidance for risk assessment in the event of exposure to the virus in the workplace.
The CDC’s Guidance further advises employers to separate employees who appear to have symptoms of acute respiratory illness at work from other employees. Additionally, the Guidance suggests that employers should post and encourage proper respiratory etiquette and hand hygiene while also recommending employers provide tissues and no-touch garbage receptacles in the workplace. The CDC further recommends that employers conduct routine environmental cleaning of the workplace.
Although COVID-19 is paramount in daily news coverage, the virus has not been declared a pandemic. In the event that COVID-19 is declared a pandemic, the EEOC has issued guidance on pandemic preparedness in the workplace at https://www.eeoc.gov/facts/pandemic_flu.html.
Thus far, financial markets have experienced a marked negative reaction to the unknown implications of the COVID-19 threat. The potential economic impacts of COVID-19 have some employers concerned about potential downturns in their business and whether that could necessitate temporary changes to staffing. In the event that a business experiences a significant downturn due to the effects of COVID-19 and is considering reducing hours and/or laying off staff, it is important for employers to consult with counsel beforehand. The Worker Adjustment and Retraining Notification Act (“WARN) requires employers with 100-plus employees to provide a minimum of sixty (60) days-notice of any mass lay-off involving 50-plus employees. Some states (such as New Jersey and California) have “mini-WARN” acts that may impose more stringent requirements.
In the event of a business downtown, employers may also consider reducing employee hours and pay, but should be mindful that this may impact compliance with the Fair Labor Standards Act (“FLSA”) which governs the payment of minimum wages and overtime. In particular, reductions in pay and hours can potentially endanger the exempt status of employees who are paid on a salary basis. The Department of Labor has issued a Fact Sheet addressing reductions in hours and pay due to business downturns. Layoffs and hours reductions can in some cases impact employee eligibility for health benefits or be considered a “qualifying event” triggering continuation coverage under COBRA (see COBRA FAQs available here).
At this stage of the development of COVID-19, employers are encouraged to monitor the CDC’s website for updated and additional guidance information. Employers are further advised to develop an emergency response plan. Importantly, employers should consult with counsel before undertaking any employment decisions in relation to COVID-19.
The information contained in this publication should not be construed as legal or medical advice, is not a substitute for legal counsel or medical consultation, and should not be relied on as such.
Ivo is a partner in Obermayer’s Labor Relations & Employment Law Department. He focuses his practice on representing employers, including advising companies on how to handle employee issues, and defending employee claims...
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