COVID-19 Legal Update: Government's Advice to Employers About the Coronavirus



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Julian H. Wright Jr. and Monica M. Burks
Robinson Bradshaw Publication
March 5, 2020

The novel coronavirus now has spread to the United States. In light of the virus's ongoing spread, both the federal Department of Labor (DOL) and the Centers for Disease Control and Prevention (CDC) have published key guidance for employers who want to comply with pertinent regulations and prevent the spread of the virus in non-health care settings. Some of the key considerations are summarized below.

Encourage sick employees to stay home.

Remind employees of the company's sick leave policies and encourage them to stay home if they are feeling ill. Though the Americans with Disabilities Act generally forbids treating someone differently in the workplace because of an actual or perceived disability, the substantial number of governmental pronouncements and directives addressing quarantine of actual or suspected cases greatly diminish the prospect of liability. Consider relaxing existing policies or implementing new policies to allow employees to stay home and care for themselves or sick family members. At the same time, provide structure and specifics to these policies so that employees do not abuse them to obtain unwarranted leave or compensation.

Understand OSHA safety standards.

Employers likely are already aware the common cold and flu are not illnesses that have to be recorded in an employer's OSHA 300 log. Employers should be aware, however, that OSHA recognizes COVID-19 – the resulting illness from the novel coronavirus – as a recordable illness when a worker is exposed on the job. Should a case develop in an employer's workplace, that employer will need to record and disclose the illness. 

In addition, if there is a known case of the coronavirus in the workplace, preventing occupational exposure to the illness may require employers to provide personal protection equipment like gloves, eye protection and face protection to employees. Such equipment also may include "respiratory protection" like face masks. Significantly, if employers are taking these steps in the workplace, then employers should also be adhering to a "comprehensive respiratory protection program in accordance with" OSHA's Respiratory Protection standard in 29 C.F.R. 1910.134.

If an employer does not have a respiratory protection program in place, OSHA provides guidance on how to implement one. According to OSHA, its blood borne pathogen standards can provide such a framework for how to impede the spread of the coronavirus in the workplace. While the coronavirus is not a blood borne pathogen, OSHA points out that by essentially substituting "respiratory secretions" – that can transmit the coronavirus – for blood in a program or policy to avoid blood borne pathogens, the employer almost certainly will comply with any OSHA standards. Employers should be aware that such a framework typically requires a written Exposure Control Plan that will allow employers to establish procedures surrounding exposure incidents.

Provide guidance to employees who travel.

In addition to guidance from OSHA, employers also should follow the CDC's latest guidance for any country to which employees may travel. Currently the CDC recommends postponing all non-essential travel to at least China, Italy, South Korea and Iran. It is wise to avoid sending employees for work travel to any countries on the CDC's "Warning Level 3" list if at all possible. It also is recommended to be aware of where any employees may be traveling for non-work reasons and to take all remedial actions possible concerning any employees who may return from a country on the CDC's list after traveling there for any reason. Employees who exhibit symptoms of infection or who return from travel to areas experiencing outbreaks may be required to submit to quarantine and/or medical evaluation and clearance before they return to work consistent with the Americans with Disabilities Act.

For more information about recommendations from the DOL, click here. For assistance drafting and implementing coronavirus-related employment policies and guidance, please contact a member of Robinson Bradshaw's Employment and Labor Practice Group.

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