O’Melveny Worldwide

Guidance for Employers Regarding Coronavirus

March 5, 2020

Coronavirus (COVID-19) is a respiratory disease that was first detected in China and is now spreading throughout the world. The virus—which counts fever, cough, and shortness of breath as symptoms—may be mild or more severe and can cause pneumonia, severe acute respiratory syndrome, kidney failure, and even death. Because symptoms may appear two to 14 days after exposure, individuals may be unaware that they are contagious.

For employers, a potential pandemic raises significant employee safety and health issues, as well as the specter of the business continuity challenges that accompany high employee absenteeism and incapacitation rates. In this article, we explore the steps employers should take to (1) satisfy applicable occupational safety and health obligations; (2) address issues related to employee travel; (3) respond to an employee who is diagnosed with coronavirus; and (4) refresh contingency planning.

Occupational safety and health obligations

Nearly all employers have to furnish to each worker “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm,” pursuant to the General Duty Clause of the Occupational Safety and Health (OSH) Act of 1970, 29 U.S.C. § 654(a)(1). In order to reduce potential risk of liability under this statute, employers should take reasonable steps to protect the safety of their employees.

Infection control practices are good ways to keep employees healthy and reduce absenteeism, even during the normal flu season. Employers should educate employees about staying home when sick and hand hygiene by placing posters in areas where they are likely to be seen. Employers should also instruct employees to minimize contact and clean their hands often and provide alcohol-based sanitizer, soap and water, tissues, and no-touch disposal receptacles.

The Centers for Disease Control and Prevention (CDC) is not currently recommending disinfection beyond routine cleaning of frequently touched surfaces and the provision of disposable wipes for employees to clean commonly used surfaces, such as keyboards and doorknobs. Employers should ensure compliance with the Occupational Safety and Health Administration’s (OSHA) Hazard Communication standard (in general industry, 29 C.F.R. 1910.1200), Personal Protective Equipment (PPE) standards (in general industry, 29 C.F.R. 1910 Subpart I), and chemical standards, which govern protection from exposure to hazardous chemicals used for cleaning and disinfection.

Employers can also consider social distancing methods to reduce the risk of spreading viruses, such as telecommuting and limiting larger meetings. Depending on the severity of the outbreak and the nature of the employer’s business, employers may also consider more extreme options, such as alternative schedules so that fewer employees are in the workplace at once and employees can avoid public transportation during rush hour.

Employers also need to comply with other occupational safety and health directives. As an example, while OSHA has not issued any standards or directives specific to coronavirus, OSHA has indicated that the Personal Protective Equipment (PPE) standards (in general industry, 29 C.F.R. 1910 Subpart I), which require using gloves, eye and face protection, and respiratory protection, may apply to preventing occupational exposure to coronavirus. And the obligation to implement protective measures may apply to employees of other employers at the same site pursuant to the multi-employer workplace doctrine.

The National Institute for Occupational Safety and Health also has issued “Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19)” that employers may wish to review.

State laws may apply as well. For example, the State of California Department of Industrial Relations has stated that coronavirus is an airborne infectious disease covered by the Aerosol Transmissible Diseases (ATD) standard, which protects employees in workplaces at high risk for infectious diseases, such as hospitals, clinics, emergency medical services, laboratories, prisons, and homeless shelters. Employers in those industries must take steps to ensure compliance with that standard, including reviewing the “Interim Guidance for Protecting Health Care Workers from Exposure to 2019 Novel Coronavirus (2019-nCoV)” issued by the Department of Industrial Relations.

Employee travel

While employers cannot make disability related inquiries under the Americans with Disabilities Act (ADA), employers can require employees to report travel to certain countries to a designated company official. The CDC currently recommends that travelers avoid all non-essential travel to China, Iran, Italy, and South Korea. The CDC has also issued less serious travel warnings for Japan and Hong Kong. Because the CDC is continuing to monitor whether such warnings should be issued for other countries, employers should stay abreast of such developments, adapt their inquiries accordingly, and also inform employees regarding such warnings. Employers should also limit non-essential business travel to these countries and educate employees who must travel about infection control precautions. 

Because Title VII of the Civil Rights Act prohibits discrimination based on race and national origin, employers should treat employees equally when making these otherwise legal inquiries, and not target only those of a particular race or national origin. In this regard, employers should reaffirm their anti-discrimination and harassment policies and conduct prompt investigations if complaints of discrimination are made.

If an employee has been to a country with a coronavirus outbreak or an employer has other reason to believe the employee may have been exposed to coronavirus, it is prudent to require the employee to stay at home for the incubation period of 14 days and to work from home if the job allows.  If an employee cannot work from home, whether an employee is paid depends on their exempt status under the Fair Labor Standards Act. Generally, non-exempt employees do not need to be paid for hours they do not work, but exempt employees should be paid for an entire workweek even if they only work part of the week. Specific state and local laws may also apply. Employers should consider maintaining flexibility with their policies and procedures during this time. If employees are forced to stay home without pay or to use valuable vacation and sick time, employees may hide pertinent information from their employer to avoid quarantining themselves.

Employees who contract coronavirus

A more severe case of coronavirus may qualify as a disability under the ADA if the virus substantially limits a major life activity, such as breathing, and a leave of absence may be a reasonable accommodation in such a circumstance. Coronavirus also may constitute a serious health condition under the Family and Medical Leave Act (FMLA), which requires covered employers to provide eligible employees up to 12 weeks of unpaid leave in a 12-month period when an employee is unable to work because of a serious health condition. State and city paid sick leave laws also may be triggered. The FMLA and local laws also may apply if an employee has to care for a sick family member. Therefore, employers should ensure that leave policies comply with current legal requirements. Employers also may choose to address in their policies whether an employee may remain home in the event schools or early childhood programs close due to a larger outbreak (as several countries, including Japan, have enacted school closures).

While an employee with a mild case of coronavirus may be able to work, an employer with an employee who is contagious has a legal obligation to protect other employees from harm under the General Duty Clause of the OSH Act. In such a situation, the employer should require the employee to stay at home until he or she is medically cleared to return to work. Whether or not such employee is compensated during the time off will depend on whether the employee can work from home, whether the employee is exempt or non-exempt, and the employer’s applicable leave policies, but an employer may choose to pay the employee above and beyond any vacation or sick time, as the employer asked the employee to remain home for the benefit of the employer and other employees. 

If an employee is confirmed to have coronavirus, employers should inform fellow employees of their possible exposure in the workplace but should be mindful of confidentiality obligations under the ADA. Pursuant to the OSH Act’s anti-retaliation provisions, co-workers of a sick employee may refuse to work if they in good faith believe that there is an imminent danger in the workplace and there is insufficient time to eliminate the danger through resort to regular statutory enforcement channels. In contrast, if an employee does not have coronavirus and does not pose a probable risk, the employee’s colleagues may not have anti-retaliation protection and may be required to come into work. Workers’ compensation laws also may be implicated if an employee contracts coronavirus through occupational exposure, and if not, disability benefits, if offered, may be due.

Contingency planning

Employers should also consider updating disaster plans or implementing contingency planning for emergencies. Plans should include a strategy for communicating with employees no matter where they are located. Employees should update their contact information, and emergency communications systems should be tested to make sure they work properly. Employers may want to identify key functions and processes and back-up and succession personnel. Employers also may wish to consider potential alternative workplace locations and check with key suppliers, vendors, and other third-parties regarding the status of their business continuity plans. In addition, it is always a best practice to establish contacts with state or local health agencies in order to have the most current local information in the event of an outbreak of any illness.  As a reminder, OSHA dictates the elements of required hazard assessments and related employee training.

Employers also may want to examine insurance policies (general liability, errors and omissions insurance, and directors and officers liability insurance) and consider whether they will need to provide notice of any claims, including for business interruption. Employers also may want to review their workers’ compensation insurance to determine if it extends to viral diseases contracted on the job.

Companies with corporate social responsibility or sustainability statements that include best practices for employee safety and health may wish to review such statements to see how they inform decisions on a coronavirus response program.

Note that employers with a unionized work force may have a duty to bargain with the appropriate labor organizations regarding any changes to the terms and conditions of employment resulting from a coronavirus pandemic. 

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While coronavirus is a cause for concern, employers can take steps to protect the health and safety of their workforce and ensure minimal disruptions to their business.  Employers should continue to monitor media coverage and stay up to date on direction from federal, state, and local authorities and adapt their efforts as this quickly changing situation develops.

This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. Eric Amdursky, an O'Melveny partner licensed to practice law in California, Apalla U. Chopra, an O'Melveny partner licensed to practice law in California, Jeffrey Kohn, an O'Melveny partner licensed to practice law in New York and New Jersey, Adam P. KohSweeney, an O'Melveny partner licensed to practice law in California and New York, Mark Robertson, an O'Melveny partner licensed to practice law in the District of Columbia, New York, California and Texas, Eric Rothenberg, an O'Melveny partner licensed to practice law in New York and Missouri, and Sloane Ackerman, an O'Melveny counsel licensed to practice law in New York, contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted.

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