05 March 2020

Coronavirus: Key Legal Employment Issues

What is Coronavirus? 

COVID-19 (Coronavirus) usually causes respiratory illness. Common signs of infection include respiratory symptoms, fever, cough, shortness of breath and breathing difficulties. The World Health Organization (WHO) has declared the outbreak a public health emergency of international concern.

What are some key legal employment issues related to Coronavirus and the workplace?

Occupational Safety and Health Act

Under the Occupational Safety and Health Act (OSHA), employers have a general legal duty to provide employees with safe workplace conditions that are “free from recognized hazards that are causing or likely to cause death or serious physical harm.”

The Occupational Safety and Health Administration has confirmed that existing OSHA standards apply to protecting workers from the Coronavirus.  The administration has directed employers and workers to consult interim CDC guidance specific to the Coronavirus.  Presumably, OSHA would rely on the guidance from the CDC in determining if employers have met their general legal duty.

The Administration has suggested the following general precautions be implemented in every workplace in the case of pandemic influenza:

  • Encourage sick employees to stay home. (Such absences may qualify for leave under the FMLA as discussed below.)
  • Encourage employees to wash their hands frequently with soap and water, or use sanitizer if soap and water are not available. Encourage employees to avoid touching their nose, mouth and eyes.
  • Encourage employees to cover their coughs and sneezes with tissues.
  • Encourage employees to wash their hands or use hand sanitizer after they sneeze or cough.
  • Avoid close contact with coworkers and customers (maintain separation of at least six feet).
  • Avoid shaking hands and always wash hands after contact with others.
  • Discourage employees from using other employees’ phones, desks, offices or other work tools and equipment.
  • Use email and phones to communicate as much as possible.
  • Minimize meetings. When meetings are necessary, avoid close contact by keeping separation of at least six feet where possible. Ensure that there is proper ventilation in the meeting room.

Additionally, certain states, such as California, have also issued interim guidance for protecting workers in high risk fields (such as healthcare) from the Coronavirus.

Family and Medical Leave Act

Under the Family and Medical Leave Act (“FMLA”), employers who have more than 50 employees are required to provide up to twelve (12) weeks of unpaid leave to a qualified employee who has a “serious health condition.”  An employee is also eligible under the FMLA in the event of a “serious health condition” affecting its spouse, child or parent(s).

If an employee contracts the Coronavirus, this disease will most likely be considered a “serious health condition” under the FMLA warranting the unpaid leave. Similarly, if an employee’s parent, spouse or a child contracts the disease, this will likely be a qualifying event entitling the employee, with physician’s documentation, to utilize leave time to care for such an immediate family member.

If the employee exhausts the entire twelve weeks of FMLA leave, and is unable to return to work at that time, the employer should consider additional unpaid leave for the employee outside of the FMLA.

Employees should also consider whether various state or local laws cover absences related to the virus.  (See our earlier blog post on this subject here.)

Americans with Disabilities Act

The Americans with Disabilities Act (“ADA”) provides certain protections to employees who may have physical or mental disabilities but who are otherwise qualified to perform the essential functions of their jobs, including reasonable accommodations to allow them to do their job.  While the coronavirus could arguably be considered a “disability” in certain limited circumstances, most employees are likely to recover quickly and a temporary, non-chronic illness is not considered a disability under the ADA.

But the ADA also prohibits employers from discriminating against employees who they “regard” as having a disability – like, for example, preventing an employee from working.  So what does an employer do when they suspect an employee might have coronavirus but the employee insists on coming to work?  Other than calling their lawyer, employers should consider placing an employee on leave, maybe by encouraging them to use their paid sick leave, other paid time off and/or FMLA.  Employers should ensure that they have open lines of communications with any employees in this situation so that they understand why they are being asked to stay home.  Hopefully, most employees are likely to understand and agree with their employer.

If an employee insists on coming into work, employers should consider whether that employee is a threat to the health and safety of their other employees, customers, vendors, etc.  If the employee is considered a “direct threat,” an employer can force an employee to undergo a medical evaluation to determine if the employee can safely return to work.  The ADA defines a direct threat as “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” Deciding whether an individual poses a direct threat is a fact-specific determination.  Individuals with symptoms of COVID-19 or with direct exposure to others who have contracted the virus may qualify, but employers should consult legal counsel before making this determination.

What can employers do now?

Employers should:

  • Stay informed of news updates, including checking the CDC website regularly;
  • Review workplace emergency response protocols and evaluate if updates are needed;
  • Review policies related to safety in the workplace, remote or telework options for workers who are sick or need to stay home to care for sick household members, and sick leave;
  • Encourage employees who are ill to remain at home;
  • Implement the OSHA protocols;
  • Prepare a communication plan to employees and the public in the event of a shutdown or employee infection.

What are some helpful resources to learn more about COVID-19?

The following websites contain helpful information about the Coronavirus.

Stay tuned to The Personnel Files in the coming weeks for more information about the legal issues surrounding COVID-19 and the workplace.  If you have any questions in the meantime, contact the author or your Miller Johnson employment attorney.

To keep abreast of all our Coronavirus / COVID-19 information, please visit https://millerjohnson.com/coronavirus-covid-19/.