Going off Script: Managing the Workplace under the Specter of the COVID-19 Virus

COVID-19 Update

Date: March 09, 2020

Employers across the country are scrambling to manage their businesses under the impending threat of coronavirus disease 2019, or COVID-19. Reacting to the latest regulation or court opinion about workplace laws pales in comparison to the need to implement sudden and unexpected policies to address this global health crisis. Employers and employees alike are questioning everything from hiring interviews to attending conventions to implementing work from home plans in order to prevent the spread of the virus.

The Centers for Disease Control and Prevention (CDC) has issued recommended strategies for employers to plan for and respond to the outbreak. Not surprisingly, those recommendations start with actively encouraging sick employees to stay at home. The CDC also suggests modifying any policy that may require a note from a healthcare provider to confirm the illness, as medical offices may be inundated and not able to provide the documentation in a timely manner. Employers should also work with any staffing or temporary agencies they use to ensure that those entities are following the same practice.

Employers can also be proactive in sending employees home when they appear to have acute respiratory illness symptoms, such as coughing or shortness of breath. Generally, an employer can ask that employee to seek medical attention and get tested for COVID-19. Guidance from the Equal Employment Opportunity Commission indicates that if the situation is declared a “pandemic,” employers could begin to ask the employees questions about their symptoms, or even take employees’ temperatures. Until then, those types of inquiries are considered a prohibited medical examination under the Americans with Disabilities Act.

If an employee does test positive for COVID-19, the employer should ask the employee to identify all individuals who have worked in close proximity with them during the previous 14 days. Those employees can be sent home for a 14-day period. While the employees should be informed that they have been exposed, it is important that the name of the infected employee is not disclosed, or the employer could risk a violation of confidentiality laws. These same precautions should be taken when an employee has a suspected but unconfirmed case of COVID-19, or when an employee self-reports that he or she has had contact with an individual who has tested positive for COVID-19.

Many employers are also restricting visitors to the workplace and requiring verification that they have not recently traveled to high-risk areas or otherwise been exposed.

Employees have as many questions as their employers and may be asking whether they are required to travel to conventions or can refuse to come to work because of fear of infection. The Occupational Safety and Health Act provides that employees can refuse to work if they believe they are in imminent danger. Requiring an employee to travel to China currently may rise to that level. However, the CDC has determined that at this time most work conditions in the United States do not meet the elements required for the employee to refuse to work.

These issues represent just the tip of the iceberg for employers. For more guidance on this issue, register for Thompson Hine’s webinar on COVID-19 on Tuesday, March 10 at 12 p.m. ET.

FOR MORE INFORMATION

For more information, please contact:

Deborah S. Brenneman
513.352.6638
Debbie.Brenneman@ThompsonHine.com

or any member of the Labor & Employment group.

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