As COVID-19 becomes a major public health issue around the globe, BakerHostetler’s Labor and Employment Group has established a national task force to advise employers in addressing workplace concerns arising from this rapidly developing situation. Prompted by a surge of client inquiries, the CEIT is focused on what actions employers may, or must, lawfully take to keep their workforce and customers safe while continuing operations.

Employers are advised to consider that their response to COVID-19 concerns may implicate federal and state disability, discrimination and labor laws. A brief overview of the relevant laws is provided below, and task force members Jay Krupin, Nancy Inesta, Nathan Schacht and Michael Parente, as well as BakerHostetler’s entire Labor and Employment Group, stand ready to assist employers as they navigate this volatile environment.

The CEIT will be hosting a webinar Thursday, March 5, 2020, at 12:00 p.m. PST/3  p.m. EST to discuss the issues. Register here.

What is it?

Coronaviruses are important human and animal pathogens. At the end of 2019, a novel coronavirus was identified as the cause of a cluster of pneumonia cases in Wuhan, a city in the Hubei Province of China. It rapidly spread, resulting in an epidemic throughout China, with sporadic cases reported globally. In February 2020, the World Health Organization (WHO) designated the disease COVID-19, which stands for coronavirus disease 2019. Understanding of this novel coronavirus is evolving. Interim guidance for businesses and employers has been issued by the WHO and by the United States Centers for Disease Control and Prevention. See, Centers for Disease Control and Prevention. Interim Clinical Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19), February 26, 2020.

What are current statistics?

As of February 27, 2020, there were over 82,000 confirmed cases worldwide.

The WHO is publishing daily Situation Reports regarding current statistics of confirmed cases.

How is it transmitted?

Understanding of the transmission risk is incomplete. Person-to-person spread is thought to occur mainly via respiratory droplets, resembling the spread of influenza. As the outbreak progressed, cases were identified among healthcare workers and other contacts of patients with COVID-19. Human-to-human transmission has been confirmed in China and has also been identified in other countries, including the United States. The question of whether asymptomatic individuals with COVID-19 or individuals in the incubation period can transmit the virus to others remains controversial. COVID-19 virus RNA has been detected in blood and stool specimens; however, it is not known whether these specimens contain infectious viruses. See, Centers for Disease Control and Prevention. Interim Clinical Guidance for Management of Patients with Confirmed 2019 Novel Coronavirus (2019-nCoV) Infection, Updated February 12, 2020.

What is incubation period?

The incubation period for COVID-19 is thought to be within 14 days following exposure, with most cases occurring approximately five days after exposure. See, Li, Qun, et al. “Early Transmission Dynamics in Wuhan, China, of Novel Coronavirus–Infected Pneumonia.” New England Journal of Medicine, 2020, doi:10.1056/nejmoa2001316.

What is R0 number and what does that mean?

When a new disease emerges, health organizations turn to a seemingly simple number to gauge whether the outbreak will spread. It’s called the basic reproduction number—R0, pronounced R-nought—referring to the average number of people who will catch the disease from a single infected person in a population that’s never seen the disease before. If R0 is 3, then on average every case will create three new cases. On January 23, 2020, the WHO estimated the R0 of COVID-19 to be between 1.4 and 2.5.

COVID-19 Concerns in the Workplace:

OSHA Guidelines. OSHA has published guidelines relating to COVID-19 for various industries that include steps to prevent worker exposure. Applicable OSHA standards include:

• The General Duty Clause requires employers to provide a place of employment that is free from recognized hazards that are causing or are likely to cause death or serious physical harm.
• Personal Protective Equipment (PPE) standards require that protective equipment, clothing or barriers be provided as necessary to prevent employees from being exposed to environmental hazards. If respirators are necessary, employers must implement a comprehensive respiratory protection program.
• Recordkeeping and Reporting Requirements include COVID-19 as a recordable illness when a worker is infected on the job.

EEOC Guidelines: The EEOC published guidelines for pandemic planning in the workplace, “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act.” The guidelines provide practical information and a list of FAQs that address various topics including (1) how much information an employer may request to protect the workforce, (2) when the employer may take the body temperature of employees during a pandemic, (3) can employers require employees to stay home if they have symptoms, and (4) can you request a doctor’s note certifying fitness for duty.

California’s DFEH (Preventing Discrimination Claims): The Department of Fair Employment and Housing has not issued guidance regarding COVID-19. However, COVID-19’s origination in China may create a vulnerability to race, national origin or disability discrimination claims under the Fair Employment and Housing Act. Do not make determinations of risk based on race or country of origin. Likewise, continue to enforce your anti-discrimination policies and do not tolerate employees engaging in any potentially discriminatory or harassing conduct (such as bullying, derogatory comments/jokes or ostracizing/isolating employees of a certain race or ethnic origin). Also make sure that supervisors are aware of laws that restrict inquiries into the health status of employees and that HR is prepared to lawfully deal with leave requests.

National Labor Relations Act (NLRA): Employees have the right under the NLRA, which applies to both unionized and non-unionized workplaces, to engage in group activity regarding the terms and conditions of employment. If a group of employees voice concerns or refuse to work due to COVID-19, their conduct may be protected.

Best Practices:

Maintain a Healthy Workplace

• Educate employees on the virus (e.g., symptoms, transmission).
• Address cough and sneeze etiquette and hand hygiene.
• Actively encourage sick employees to stay home.
• Remind employees of sick leave benefits/right to care for family members.
• Encourage staffing company to develop non-punitive leave policy.
• Utilize available Employee Assistance Programs.

Plan for Continuity of Operations

• Open communication is key.
• Limit travel to affected areas.
• Ask employees to disclose any travel to an affected area.
• Be flexible if employees are able to work remotely.
• Enact guidelines for what employees should do if they have been exposed.
• Identify local medical facilities best able to evaluate/treat employees who may have the virus.
• Test emergency communication systems.

Legal Implications

• Tread carefully before implementing health screenings.
• Safeguard employee privacy.
• Avoid discriminatory practices.
• Determine whether FMLA or other leave applies.
• Document the uniqueness of this situation to avert claims of disparate treatment when dealing with other leave requests.
• Employees who are vulnerable due to other health issues may be entitled to accommodations.
• Review OSHA requirements for your industry.

Authorship Credit: Mark Kadzielski, Jenna Scott and Nancy Inesta