March 04, 2020
This update provides guidance for employers as concerns regarding COVID-19 continue to evolve, and the number of infections and deaths continue to rise around the world and in the United States.
COVID-19 continues to be a rapidly evolving and growing concern, as the number of infections and deaths continue to rise around the world and in the United States and fears are bordering on panic levels and causing shortages in essential supplies. Given that the CDC is preparing for COVID-19 to become a pandemic, employers should keep the following in mind:
As we have previously stated, we strongly recommend that employers develop and implement a written communicable illness response program that provides procedures for how they will address any communicable illness and then develop specific material for outbreaks as they occur, such as for COVID-19. This program also will allow an employer to respond more quickly to the next outbreak. This is particularly true for health care employers (who should be updating their exposure control plans to address COVID-19) and other employers with higher-risk populations such as schools, prisons, and many community-based service organizations. For more advice on what to include in communicable illness response programs, please see our earlier alerts.
Health care employers need to update their exposure control plans in accordance with CDC and state and local public health department guidance. Health care employers in California also need to comply with Cal/OSHA’s aerosol transmissible disease (ATD) standard, Title 8 California Code of Regulations, section 5199. We recommend that health care employers outside of California review Cal/OSHA’s ATD standard for guidance. While we believe portions of the ATD standard are overbroad and burdensome, it serves as a useful reference.
The risk of exposure in the United States remains relatively low (except for health care workers where it is higher). Regardless, a vast majority of COVID-19 infections have resulted in only minor to moderate symptoms, with severe illnesses usually affecting the elderly, those who are more susceptible to respiratory infections or have weakened immune systems. It is important to remind workers that, according to CDC estimates, the common flu during the last flu season (October 2019 to February 2020) led to at least 32 million illness and up to 46 thousand deaths in the United States alone. Open communication and dialogue with workers about novel coronavirus should help address some of the fears.
Many companies have stopped non-essential travel, even domestically. Before considering any travel restrictions, an employer should analyze its business needs, the recommended travel limitations for certain countries by the CDC, and whether such limits are appropriately tailored. Some employers have been dealing with workers who do not want to travel, even if their work requires it. In such instances, employers should consider the actual need for travel, whether the fear of traveling is based rationally on reputable information (such as posted Travel Health Notices from the CDC), and whether others can and will perform that work. Please also note that there may be potential legal exposure in prohibiting workers from personal travel, and if workers intend to travel for personal reasons to a country with a posted Travel Health Notice from the CDC, employers should consider how to reincorporate such employees back into the workplace.
Telecommuting may be an option for workers who recently have returned from international trips, especially from countries with a posted CDC Travel Health Notice. Employers, however, need to be aware of establishing telecommuting as a precedent. This is particularly important for employers and for positions for which telecommuting typically is not a reasonable accommodation for medical conditions and illnesses. Employers should consider the impact of allowing telecommuting, even on a temporary basis, on future requests for accommodation of other medical conditions and disabilities.
As panic and fears, as well as the pressures to address them, continue to rise, employers should be even more focused on complying with anti-discrimination laws. Because novel coronavirus originated from China and has largely impacted Asia, employers should consider whether any action could be interpreted as potential discrimination against a particular race, ethnicity, or nationality. Employers also should consider the impact of actions on workers who have contracted an illness (whether novel coronavirus or not), and whether or not such actions create exposure to medical or disability discrimination claims.
Proper handwashing and cough and sneeze protocols are the best way to minimize exposure to COVID-19, as well as influenza. Masks should only be used by those who are coughing or sneezing to prevent their illness (whether novel coronavirus or not) from spreading and not by those who are healthy. Fears have led to shortages in these masks, and they should be used appropriately. Encourage workers who are sick to stay home and use accrued paid sick days and remind them of options regarding medical leaves and/or the use of paid vacation days.
When employees are instructed and required to do so, decontaminating wipes, etc., must be provided to employees free of cost. Employers may also provide hand sanitizer in common, and highly-frequented areas as an option.
The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.
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