The Coronavirus (COVID-19) has just officially been declared a pandemic by the World Health Organization. A United States National Emergency declaration by the president and has lead to the closures of universities, businesses and in some cases, borders around the globe.

As a business owner, it is important to understand what precautions and measures that your business should take to best deal with this global pandemic, as well as navigating the maze of employee health, privacy, and other business and legal challenges.

Here are some things that employers should consider in light of the changing landscape of COVID-19:

WORKPLACE SAFETY

Under the Occupational Safety and Health Act (OSHA) and similar state laws, employers have a duty to provide a safe, healthy work environment. At the same time, implementing broad-based bans or other business decisions that aren’t supported by facts could expose employers to claims of disability and national origin discrimination.  Here are some things that employers should consider in light of the changing landscape of COVID-19:

  • Evaluate what the legal obligations are to provide a safe and healthy workplace.
  • Ban business travel for employees to high-risk places currently including China, Iran, South Korea, and Italy. Designate a management official to check the CDC site daily for updated countries.
  • Develop a plan for employees that may be returning from COVID-19 hotspots including potentially requiring that employee stay home for a 14-day incubation period.
  • Determine how to implement CDC and other public health protocols and guidelines.
  • Do not ask an employee if they have contracted COVID-19, this may run afoul of the American’s with Disabilities Act (ADA), or ask them to get tested. You may, however, ask generally, if they have any of the specific symptoms (of those listed on the CDC website). Determine the rights and limitations of your business in diagnosing employees as well as excluding them from company events or locations in the prevention of COVID-19. (ie. can a company force an employee to stay home? Can an employer take employees’ temperature or other health-related measures?). Consider rescheduling company group events.
  • Determine if Remote Work Protocol is necessary. If so, consider what accommodations and measures need to be taken to ensure compliance with labor and wage laws.  Additionally, if your company doesn’t have them already, establish remote work policy guidelines, as well as proper security measures with working from home

EMPLOYEE SAFETY & PRIVACY

  • Determine how your business should address at-risk employees. This can include employees with asthma or other conditions that make them susceptible to COVID-19, or it can include employees who may be a victim to heightened discrimination/harassment due to COVID-19.  You must be very careful to not treat employees differently.  Don’t require some employees to stay at home because of these conditions.  Develop a plan for all employees and then stick to it.
  • Require sick employees to stay home, and then develop a plan to compensate them. How a company compensates people depends on their exempt or non-exempt status; previous use of sick leave; and a company’s policies and benefit plans. You can bend the rules during this difficult national emergency and show concern for the employee’s health and safety.  Determine the implications if an employee is no longer working or able to work due to the COVID-19 outbreak.
  • Determine to what extent your business can require employees to disclose about health status and the limitations that a business can take in terms of testing and collecting data on employees for the virus.
  • Do not require employees to get tested. Test kits are still in limited supply, and as the testing situation is still fluid, you can’t require employees to be tested.
  • Do not aks employees, “Do you have Coronavirus?” This could go against the ADA, although COVID-19 has not yet been identified as a disability.  You can ask, “do you have any of the specific symptoms listed on the CDC website?
  • Establish what employee information, if any, should be reported to government officials. If an employee is confirmed with a case of coronavirus, you should not disclose the employee’s health condition as it may violate their right to privacy.
  • Evaluate what your health plan covers relevant to COVID-19

LIABILITY

  • Develop a communication plan for all employees including a way to reach employees in the case that they lose their work email. Prepare answers to questions that will come from employees and designate a point person to ensure consistent messaging.
  • Determine your business’s liability if an employee were to be diagnosed with COVID-19 or infects others with the COVID-19 virus.
  • In the face of travel restrictions, determine how your business will comply with tax-related obligations.
  • Remind employees to beware of bad actors like MUMMY SPIDER, a malware computer virus that infects computers by telling users to click on a malware link in an email about COVID 19, see this link for more information.

CORPORATE / TRANSACTIONAL CONSIDERATIONS

  • Assess the steps and actions that your company should take to ensure their board is informed and satisfied. Determine who in the company is best positioned to provide appropriate oversight.
  • Establish an emergency succession plan for all of your business key personnel. Develop contingency planning including how many of your employees have remote working devices, whether you can cross-train employees, and whether you want to prioritize certain customers or functions.
  • Anticipate the triggering of force majure clauses in contracts for the delivery of goods or services.

ADDITIONAL MEASURES

  • Determine additional measures that your business could take in order to help your employees. (ie. Can your company offer a hardship distribution from their 401K? Permit employees to contribute to vacation or leave time?)
  • Understand what the steps are in case a third-party plan service provider is unable to perform their service.

The Covid-19 outbreak implicates a range of employment laws, including the ADA, GINA, OSHA, Title VII, and ERISA as well as other laws.  Dunlap Bennett & Ludwig is available to offer further trusted advice for you and your business through these unfamiliar times.

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Posted in: Announcements, Business Law, Employment Law