There are a lot of legal questions being raised by the novel coronavirus. Lawyers are in demand in these unprecedented times. Currently, the most common concern for businesses everywhere is liability for exposing employees to Covid-19 and the legal obligations of employers generally. These questions are by no means resolved, but some clarity is emerging.
Below are some of the relevant considerations and federal laws at issue.
Protect Employee Health
The Centers for Disease Control and Prevention has issued guidance for employers. All businesses should at least follow this guidance, even if implementing other changes. Recommendations include cleaning and sanitizing the workplace, encouraging workers to stay home when sick, and creating an infectious disease response plan.
Following the CDC Guidance Does Not Give Rise to Liability Under the ADA
On March 19, the EEOC updated its pandemic guidance to note that the “ADA and the Rehabilitation Act do not interfere with employers following advice from the CDC and other public health authorities on appropriate steps to take relating to the workplace." Protecting employees from exposure to Covid-19, in other words, must be the primary concern of employers everywhere.
No OSHA Standard
OSHA has also released guidance for compliance departments and professionals. While there is no current standard specifically for Covid-19, the general duty clause provides that employees must be able to work “free from recognized hazards that are causing or are likely to cause death or serious physical harm." This would reasonably include the novel coronavirus.
Some states, like California, have additional protections. The Cal/OSHA Aerosol Transmissible Disease Standards includes the coronavirus family. It is only mandatory for some healthcare employers, but employers can use those standards to ensure they are doing everything possible to mitigate employee risk.
Naming, Testing, and Restricting Employees
While it is important to limit exposure to your workforce, employees who have coronavirus should not be named. However, employees can be notified if they may have been exposed and some relevant non-identifying information provided to help people understand who is at risk.
Currently, the CDC does not recommend taking the temperature of employees. Also, of course, any and all actions taken by the employer should avoid targeting a protected class, including national origin. All actions should also comply with HIPAA privacy protections. However, the Department of Health and Human Services has issued guidance relating to the coronavirus that does allow for some exceptions.
Can I require employees to be tested for COVID-19?
COVID-19 testing kits are in short supply all throughout the U.S., making it very difficult to test people without a referral by a medical professional. Moreover, employers cannot require employees to undergo testing or even let them know the employee’s results if they do test for COVID-19.
Can I require a doctor’s note for sick leave?
While employers cannot ask for details about an employee’s health-related issues, it is within the law to ask for a doctor’s note confirming that an employee is medically eligible for leave benefits, or safe to emerge from quarantine after being ill.
Can I require an employee to work from home?
Yes, an employer can require employees to work from home to limit exposure to COVID-19. However, all employees must be treated the same without discrimination on the basis of an employee’s age, race, or gender.
Keeping Facilities Safe
If your place of business is still open and you wish to limit contractors, vendors, or visitors at the facilities, you may do so but it should be done with a uniform policy that treats everyone equally across all demographics. The policy should be posted publicly on the property for all guests to see.
Separate from worker's compensation and OSHA compliance, however, are a host of related liability concerns. Potential federal laws to be aware of include:
- The Warn Act if conducting mass layoffs
- The Family and Medical Leave Act (FMLA) if an employee needs to care for a sick relative
- The Fair Labor Standards Act (FLSA) and other wage and hour laws, particularly for remote workers
- Whistleblower laws if an employee expresses concern about traveling or becoming exposed at work due because the business is not following CDC recommendations.
Employers will continue to have to monitor the latest developments. Between mandatory paid time off, liability concerns, and other rapidly developing legal issues, businesses will have to tread carefully to avoid legal risk.