March 2, 2020
As officials in the Centers for Disease Control and Prevention (CDC) have warned that the spread of the Coronavirus appears “inevitable” in the United States, employers face increasing concerns regarding the impact the virus will have on their workplace. To address some of these concerns, the CDC has released guidance, entitled Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19), February 2020 (the “CDC Guidance”), to help prevent exposure to COVID-19 in the event of an outbreak in the United States.
The following are highlights of the CDC’s recommended strategies to help prevent exposure in the workplace:
- Employers are advised to “actively encourage” sick employees to stay home. Specifically, the CDC Guidance states that “[e]mployees who have symptoms of acute respiratory illness [fever, cough, shortness of breath] are recommended to stay home and not come to work until they are free of fever (100.4° F [37.8° C] or greater using an oral thermometer), signs of a fever, and any other symptoms for at least 24 hours, without the use of fever-reducing or other symptom-altering medicines (e.g. cough suppressants).” Employers are also advised to emphasize respiratory etiquette and hand hygiene by all employees.
- Employers are advised to ensure that their sick-leave policies are flexible and permit employees to stay home to care for a sick family member. Employers are further advised to speak with companies that provide contract or temporary employment assistance about the importance of sick employees staying home and encourage those companies to develop non-punitive leave policies.
- It is recommended that employers not require a healthcare provider’s note for employees who are sick with acute respiratory illness to validate their illness or to return to work, as healthcare facilities may be extremely busy and not able to provide such documentation in a timely way.
- Employers should advise employees who may be traveling, regardless of location, to check the CDC’s Traveler Health Notices for the latest recommendations for each country to which they will travel. Currently, the CDC recommends that: (i) travelers avoid all nonessential travel to China, Iran, South Korea and Italy; (ii) older adults or those who have chronic medical conditions consider postponing travel to Japan; and (iii) travelers practice usual precautions in Hong Kong. Entry of foreign nationals from China and Iran has been suspended. Employees should also be advised to check themselves for symptoms of acute respiratory illness before starting travel and to notify their supervisor and stay home/seek treatment if they develop symptoms during or following travel.
- Employees who are well but who have a household member with COVID-19 should notify their supervisor and refer to CDC guidance on how to conduct a risk assessment of their potential exposure (the “ CDC Risk Assessment). Notably, the CDC Risk Assessment includes potentially useful information for employers to consider when making determinations as to the specific level of risk to their workplace and what prevention steps may be appropriate as a result.
- If an employer becomes aware that an employee is diagnosed with COVID-19, employers should inform fellow employees of their possible exposure in the workplace but maintain confidentiality as required by the Americans with Disabilities Act (ADA). Employees exposed to a co-worker with COVID-19 should refer to the CDC Risk Assessment, linked above, for guidance.
In preparation for a COVID-19 outbreak in the United States, the CDC recommends that employers develop an Infectious Disease Outbreak Response Plan. The following are highlights of elements the CDC recommends:
- Identify possible work-related exposure and health risks to employees.
- Review human resources policies to make sure that policies and practices are consistent with public health recommendations and existing state and federal workplace laws.
- Explore the establishment of flexible work policies such as telecommuting and staggered shifts, including requisite infrastructure, to increase the physical distance among employees and between employees and others if state and local health authorities recommend the use of social distancing strategies.
- Plan for how the business will operate if there is increasing absenteeism or supply chain interruption. Bear in mind that early childcare programs and K-12 schools may close if incidents of COVID-19 in the United States increase.
- Consider canceling large work-related meetings or events, as well as non-essential business travel to other countries per travel guidance on the CDC website.
- Consult state and local health departments to monitor local outbreak information.
- Establish a process to communicate information to employees and business partners on the company’s infectious disease outbreak response plan and latest COVID-19 information.
This is an emerging and rapidly evolving situation and employers should continue to monitor the information and recommendations from the CDC, the Occupational Safety and Health Administration (OSHA), the State Department, as well as information from other federal, state, and local government agencies.
While these changes are too dynamic in nature to incorporate into employee handbooks, we encourage you to review our recent alerts and recheck that your handbooks have been updated accordingly. As COVID-19 may also impact your supply chain and other dealings with foreign countries, it would also be prudent to review the various provisions of your written agreements to address proactively any relevant clauses, such as force majeure clauses. Attorneys at Moses & Singer LLP are available to assist you with these COVID-19-related issues.